District Elections

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Canal Alliance, Canal Welcome Center, Alcohol Justice, Youth for Justice, and United Marin Rising Community Meeting PowerPoint presentation - January 13, 2018.

Meetings

Meetings English Spanish Video
November 20, 2017 Study Session PowerPoint PowerPoint Watch Live
December 4, 2017 City Council Meeting, 7 p.m.  Staff report Staff report  Watch Live
December 18, 2017 City Council Meeting, 7 p.m.  Staff report Staff report  Watch Live
January 16, 2018 City Council Meeting, 7 p.m. Staff report Staff report  Watch Live

January 16, 2018 City Council Meeting Staff Report

Topic: District-Based City Elections

Subject: Consideration of Adoption of Resolution to Transition from At-large Elections to District-Based City Council Elections

Recommendation: Receive public comments, deliberate, and vote whether or not to approve a resolution stating the City’s intention to transition from an at-large to a district-based election method for City Council elections.

Background: In 2002, the Legislature enacted the California Voting Rights Act (CVRA) (Elec. Code §§14025 – 14032), which prohibits California public agencies from imposing or applying an at-large election method “that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.” (Elec. Code §14027) A protected class is defined by the CVRA as “a class of voters who are members of a race, color, or language minority group, as this class is referenced and defined in the federal Voting Rights Act of 1965.”

The CVRA defines an at-large method of election to include the election method used by the City of San Rafael, in which the voters of the entire City elect all the members of the City Council. In a lawsuit brought pursuant to the CVRA, a plaintiff who establishes a history of “racially polarized voting” under a city’s at-large election system can require a city to change to a district-based election system.

Since 2015, the City’s Latino Civic Leadership Initiative group has been working to increase minority representation on San Rafael’s boards, commissions and ultimately the City Council, and the City is committed to working collaboratively with all of its residents to address any voting or representation concerns. Despite this work, on November 20, 2017 the City received a letter from Malibu attorney Kevin Shenkman urging the City to change its at-large voting system to a district-based voting system, asserting that “San Rafael’s at-large system dilutes the ability of Latinos (a ‘protected class’) - to elect candidates of their choice or otherwise influence the outcome of San Rafael’s council elections.”

According to the California Elections Code, receipt of this letter starts a 45-day timeline for the City “to pass a resolution outlining its intention to transition from at-large to district-based elections, specific steps it will undertake to facilitate this transition, and an estimated time frame for doing so.” (Elec. Code §10010.) A potential plaintiff may not file a lawsuit under the CVRA until this 45-day period has elapsed. Moreover, if the City passes such a resolution, it will have a further 90 days to adopt an ordinance implementing district-based elections before a lawsuit may be filed under the CVRA.

The City Council held a study session on November 20, 2017 at which the City’s outside legal counsel, Christopher Skinnell, provided a general briefing on the federal and California Voting Rights Acts, as well as an overview of the City’s voter demographics to set the stage for further conversation on the subject.

The City Council also held a hearing at its December 4 meeting, at which it received public comments concerning Mr. Shenkman’s demand that the City transition to district-based elections. On December 6 th, 2017, the City Attorney wrote a letter to Mr. Shenkman requesting to toll Section 10010’s 45-day time period for the City Council’s decision whether to switch to district-based elections for an additional 90 days, through March 19, 2018. The City Attorney also requested any data and analyses developed by Mr. Shenkman in support of his position that the City’s at-large election has been disadvantageous to the City’s Latino community.

The City Council intended to take action on Mr. Shenkman’s demand at the December 18 Council meeting. However, at that meeting City Attorney Rob Epstein reported that in response to the City’s request for a tolling of the 45-day time period, Mr. Shenkman had agreed to allow the City more time to deliberate, and extended the 45-day time period to allow the Council to take action at its January 16, 2018 Council meeting. Mr. Shenkman declined to provide any data or analyses that supported his assertions made in the November 20 letter. Based on the City Attorney’s report, as well as public comment in support of additional time to decide on whether to convert to district elections, the Council voted to postpone any decision regarding district elections until January 16, 2018.

Analysis: The City Council has three options at this meeting, namely: 1) Adopt a resolution stating the Council’s intention to transition to district-based elections for the 2020 general municipal election, within the 90- day period provided in Elections Code section 10010; 2) Adopt a resolution stating the Council’s intention to transition to district-based elections for the 2022 general municipal election, after receiving results of the 2020 U.S. Census; 3) Decide against transitioning to district-based elections, and not adopt a resolution of intention. Each option is discussed below:

Option 1: Adopt a resolution stating the Council’s intention to transition to district-based elections for the 2020 general municipal election, within the 90-day safe harbor period provided in Elections Code section 10010

Under this option, if the Council adopts a resolution at this meeting, then pursuant to Elections Code section 10010, the Council is required to hold 5 public hearings within 90 days, or by April 16, 2018, prior to adopting an ordinance establishing the district-based election system.

The requirements for the meetings are established by the statute:

a. Before drawing a draft map or maps of the proposed boundaries of the districts, the City must hold at least two public hearings over a period of no more than 30 days, at which the public is invited to provide input regarding the composition of the districts.

b. After all draft maps are drawn, the City must publish and make available for release at least one draft map and, if members of the City Council will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The City must also hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections, if applicable. The first version of a draft map shall be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, it shall be published and made available to the public for at least seven days before being adopted.

Attachment 1 (Spanish) to this staff report is a resolution stating the Council’s intention to immediately start the transition to district-based elections, and includes an Exhibit with a tentative timetable for accomplishing the above tasks. As noted in the draft resolution, the City will be required to hire a professional demographer to assist in the preparation of draft district maps, and staff would also ask the Council to approve an amendment to the City’s agreement with its outside attorneys on this matter, Christopher Skinnell and Marguerite Leoni at the firm of Nielsen Merksamer.

Pursuing this option would protect the City from the filing of a lawsuit under the CVRA. By statute, Mr. Shenkman would be entitled to reimbursement of his documented fees and expenses, not to exceed $30,000; however, the City would be spared possibly hundreds of thousands of dollars in attorneys fees required to litigate a CVRA action.

Note that the attached resolution (coming soon) has two revisions to the draft presented at the December 18 meeting: First, a member of the public pointed out a reference in the proposed resolution to a transition to district elections for “the mayor and city councilmembers,” suggesting an intention to eliminate the charter requirement of a separately elected mayor. Because amending the charter to eliminating this requirement would require a vote of the electorate, unless and until such an election occurs the City is not able to transition to district elections for mayor; staff has therefore deleted the reference to the office of mayor in the following section of the resolution:

WHEREAS, although Mr. Shenkman’s letter was not accompanied by any evidence to support his claim of a CVRA violation, the City Council finds that it is in the best interests of the City to act within the safe-harbor timeframe provided by Elections Code Section 10010 to transition from an at-large election system to a district-based election system for electing the mayor and city councilmembers; and

Second, Exhibit A (Spanish) to the draft resolution, the tentative timeline for actions to transition to district elections, has been updated to reflect that the 90 day time period to act will begin on January 16, 2018, with final action required by April 16, 2018.

Option 2: Adopt a resolution stating the Council’s intention to transition to district-based elections for the 2022 general municipal election, after receiving results of the 2020 U.S. Census.

At the November 20 study session, Christopher Skinnell noted that one option available to the City is to implement a transition to district-based elections following the next federal Census in 2020; however he cautioned that this action by the City would not guarantee that litigation will be avoided.

Mr. Skinnell has advised that there several cases decided under the federal Voting Rights Act that have declined to grant relief in a challenge to an existing voting system when the Census is imminent, since redistricting is required after each Census. As one court indicated, such “rapid-fire reapportionment immediately prior to a scheduled census would constitute an undue disruption of the election process, the stability and continuity of the legislative system and would be highly prejudicial, not only to the citizens of [the County], but to the [County] itself.” Maxwell v. Foster, 1999 U.S. Dist. LEXIS 23447, *12 (W.D. La. 1999).

Since San Rafael’s next election is in 2020, the district boundaries would have to be reconsidered upon the release of the Census the following year. Therefore, it is possible that if the City resolved to initiate the transition to district-based elections after the 2020 Census results become available, a lawsuit challenging that decision might be dismissed without a trial. Even so, the City would incur attorneys’ fees and costs in defending the lawsuit to that point.

Attachment 2 (Spanish) to this staff report is a resolution stating the City Council’s intention to start the transition to district-based elections following receipt of the results of the 2020 Census. Note that the resolution has a revision to the draft presented at the December 18 meeting, deleting the reference to the office of mayor, for the reasons set forth above, in the following section of the resolution:

WHEREAS, although Mr. Shenkman’s letter was not accompanied by any evidence to support his claim of a CVRA violation, the City Council finds that it is in the best interests of the City to transition from an at-large election system to a district-based election system for electing the mayor and city councilmembers; and

Option 3: Decide against transitioning to district-based elections, and do not adopt a resolution of intention.

The Council’s final option is to reject Mr. Shenkman’s demand to switch to district-based elections, with the intention to vigorously fight any ensuing CVRA lawsuit. If successful, the City would be liable only for its own attorneys’ fees and other litigation costs, which could still amount to hundreds of thousands of dollars. If unsuccessful, the City would also be liable for payment of the plaintiffs’ attorneys’ fees and costs, also likely to amount to many hundreds of thousands of dollars.

To follow this option, the City Council would merely decline to adopt a resolution of intention.

Community Outreach: The City is partnering with community groups to communicate information throughout the community. A website, www.cityofsanrafael.org/district-elections has been created to provide information about the topic, a schedule of meetings, and an online form for public feedback. This meeting was announced via the City’s website, email notifications, the City Manager’s newsletter and via social media. The City Council considered this issue at a Study Session on November 20, and at its regular meetings on December 4 and December 18. The Canal Alliance, Canal Welcome Center, Alcohol Justice, Youth for Justice, and United Marin Rising organizations have coordinated to schedule a public meeting for January 13 for the purpose of providing information to and receiving input from interested members of the public. The City’s attorney, Christopher Skinnell is scheduled to attend as well as City staff.

Fiscal Impact: The fiscal impact of a change to district elections is unknown at this time. However, certain types of costs can be anticipated for each of the options:

Option 1: The decision to immediately start the transition to district-based elections would result in the City having to hire a demographer and incur additional fees for the services of outside counsel during the transition process. In addition, the City would be liable for the payment of up to $30,000 to Kevin Shenkman following adoption of the ordinance approving district-based elections.

Option 2: The decision to transition to district-based elections following the 2020 Census would defer the costs for a demographer until that time; however, if and when a CVRA lawsuit is filed, the City would still incur costs for outside counsel to defend the City and potentially for the payment of the plaintiffs’ attorneys’ fees and litigation costs should the City lose the lawsuit.

Option 3: The decision not to transition to district-based elections at all has the most potential exposure to costs of litigation. In other CVRA cases, these costs have commonly been in the high six figure range, and were as much as $4.5 million in the City of Palmdale’s unsuccessful defense of the CVRA suit filed against it.

Recommended Action: Staff recommends that the City Council receive public comments and take one of the optional actions set forth above.

December 18, 2017 City Council Meeting

On Monday, December 18, the City Council will make a decision on whether or not to transition to District-Based Elections. The main three options for the City Council to consider include immediately transitioning to district-based elections, transitioning for the 2022 general election after using the results from the 2020 census to draw districts, or to maintain at-large districts. The latter two options expose the City to a potential lawsuit alleging a violation of the California Voting Rights Act due to “racially-polarized” voting in San Rafael. The below report attempts to clarify this complicated issue and the reasons for the fast timeline. Check out the staff report (English / Spanish).

December 4, 2017 City Council Meeting

Last week, the City received a letter from a Malibu-based attorney challenging San Rafael’s at-large election structure based on an alleged history of “racially polarized voting.” Following a study session on November 20, the City Council will continue the conversation about district-based elections and the City’s options on how to proceed. The topic is planned to be discussed at both their December 4 and December 18 meetings, starting at 7 p.m. Please join us and add your thoughts to the conversation. Spanish language translation services will be available. The staff report, at the below weblink, provides a background on this issue and includes questions and answers that have come up so far including questions from the public at the recent Study Session.  Check out the staff report (English / Spanish).

Additional Resources:
Letter

Questions & Answers

Yes.The City’s next election is 2020, and the lines would have to be reconsidered upon the release of the Census the following year. See Elec. Code § 21620 which states “After the initial establishment of the districts, the districts shall continue to be as nearly equal in population as may be according to the latest federal decennial census or, if authorized by the charter of the city, according to the federal mid-decade census.”

Such engagement efforts are not a requirement of the CVRA, which only addresses the change from at-large elections to district-based elections, nor of the decision to be made by the City Council whether to transition to district-based elections during the time period allowed by the law. It is a related matter, however, which may be the subject of further discussion by the City Council either in connection with the current matter, or at a later date.

The City held a study session on November 20 and has plans for two more public meetings on December 4 and December 18.  Afterwards, if the City Council decides to transition to district-based elections, the City Council will hold multiple meetings over a period of not more than 90 days.  The City will also be posting informational materials to its website and on sound recordings, and will be partnering with community organizations to get the word out.

CVRA cases are highly fact- and jurisdiction-specific, so applying the result in one jurisdiction to another is very difficult. San Rafael has far different demographics and electoral history, and there were a number of unique aspects to the Palmdale case. This is especially the case as there is no Court of Appeal decision (on the merits) in Palmdale that would be binding on any lower court. Staff has developed a preliminary list of the pros and cons of transitioning to district-based elections as requested by Mr. Shenkman, which is included in the staff report for the December 4, 2017 City Council meeting. The City of Palmdale incurred expenses of approximately $4.5 million litigating its case through trial and appeals.  The high cost of litigation is the primary lesson of the Palmdale case and the argument for making the change during the statutorily allowed time period.

Yes, the City is arranging for Spanish translations of written agenda materials on this matter, and for the presence of a Spanish-speaking translator at the public meetings.

City staff  is not aware of any quantitative data that addresses this, though there is qualitative scholarship and case law recognizing the possibility that districts could lead to more concern for one’s district at the expense of a “big-picture” view.  However, the extent to which this is true varies by jurisdiction.

The costs vary based upon the candidate’s approach. There are no City-mandated costs under either system.

The City’s outside counsel advises that the City has the option to delay implementing district-based elections until after the 2020 Census, and a number of jurisdictions took this approach preceding the last Census (in 2010).  However, litigation under the CVRA has become substantially more active since that time, and this approach  would not necessarily avoid litigation.  In the course of litigation, a judge might deem this to be a reasonable course of action for the City rather than having to redistrict for two successive elections.  There is case law under the federal Voting Rights Act recognizing that redrawing districts for two successive elections would be confusing and disruptive.

Article IV, Section 2 of the Charter provides that “all elections to fill public offices and elections on measures shall be made, held and conducted in the manner provided by law.”  Thus, Staff has concluded that under this provision, a vote of the people is not required to change to district-based elections for the four Councilmember seats.  Staff has not determined whether converting the office of Mayor to a fifth district-based seat would require a vote.

The Mayor’s office in San Rafael is elected pursuant to Article VI, Section 2 of the City’s Charter, which was approved by the voters in 1912.  Other cities in Marin County governed by general state law, rather than by a charter city; however, general law cities may also put a measure before their voters to have a separately elected mayor.  Generally speaking, the larger the city, the more likely it is that the city will have a separately elected mayor, although there is no formal size requirement.

Mr. Shenkman must provide documentation to back up the demand, but in past cases the documentation has not been very specific and the fees have been negotiated.

The City’s outside counsel advises that those figures appear to be realistic for the demographer and the plaintiff. Fees for the City’s attorneys would likely be less, since minimal travel time would be required.

Districts are set by total population. It can create a significant disparity, but that is the basis that has been approved by the courts, including—most recently—the Supreme Court in Evenwel v. Abbott. The chief exception is that prisoners can be excluded from the population base.

Staff is not aware of any circumstance that would require the City to hold an election for City Council in 2018.

No. The seats just rotate in. Each current member of the Council serves out the rest of the term to which he or she was elected, and then must run for re-election in the districts. It potentially gets a little more complicated if two councilmembers are paired in a single district, but everybody still serves out his or her full current term.

Once a lawsuit is filed under the CVRA, we do not believe there is any authority for a judge to stay the case for five years; even if a judge is willing to approve a five-year transition period, it seems unlikely that this would be a basis for refusing to award the plaintiffs their attorney’s fees and costs.

If the City transitions to district-based elections within the timeline established by the CVRA, the City will be liable for the attorney’s fees of the potential plaintiffs, capped at $30,000. If the City chooses not to make the transition within that timeline but does so after being sued, it is possible that the City will be liable for substantially higher litigation costs and attorneys’ fees of the plaintiffs, and the expense of the City’s own defense attorneys will also likely be higher. The amounts are unknown but will increase the longer the action is litigated prior to settlement.

Sued in 2008, Madera Unified School District ended up paying plaintiffs’ counsel over $100,000 for six weeks of uncontested litigation, and that was after a substantial reduction of the fees that were requested (which exceed $1 million).

An additional consideration is that the Council may have less control over the districting process if a court is involved.

Article IV, Section 2 of the Charter provides that “all elections to fill public offices and elections on measures shall be made, held and conducted in the manner provided by law.”  Thus, Staff has concluded that under this provision, a vote of the people is not required to change to district-based elections for the four Councilmember seats.  Staff has not determined whether converting the office of Mayor to a fifth district-based seat would require a vote.

Given the very strict timelines that the Legislature has imposed for this process under the CVRA, and the substantial number of hearings that must be had in a short time, a citizen commission is impractical at this point. Nothing would prevent the Council from appointing such a committee in 2021, when lines are redrawn following the next Census.

The City began to do research, hired outside counsel, and started to schedule public hearings on the issue of district-based elections when it learned of the impending receipt of Mr. Shenkman’s letter.  The City hopes to provide an opportunity for all interested persons to provide input to the City Council on the issue of district-based elections, and to ensure that the City’s electoral system best serves the entire City, in compliance with state and federal law.

Yes, Kevin Shenkman’s letter dated November 10, 2017, addressed to the City Clerk was received by her on November 20, 2017.

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