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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.
|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).