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District Elections

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Meetings

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November 20, 2017 Study SessionPowerPointPowerPointWatch Live
December 4, 2017 City Council Meeting, 7 p.m.   

Staff report for December 4, 2017

Topic:           
District-based Elections

Subject:     
Consideration of transition from at-large elections to district-based elections

Recommendation: 
Receive public comments and discuss changing the City’s elections from an at-large system to a district-based system.

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 CVRA, 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, which in San Rafael’s case will be on January 4, 2018.  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.

Having been alerted the previous week that Mr. Shenkman had sent his letter to the City, the City Council held a study session on November 20, 2017 on the subject of the CVRA.   At that meeting, the City’s outside legal counsel, Christopher Skinnell from the San Rafael law firm Nielsen Merksamer, 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 took questions from the public and committed to responding to public inquiry, along with a list of pros and cons for moving to district elections, at the City Council meeting of December 4, 2017.

Analysis: 
For the convenience of the City Council and public as they discuss the issue of district-based elections, Staff has attempted to answer questions posed to date and to develop a preliminary list of pros and cons if the City Council determines to act to change the City’s election method to a district-based method rather than at-large.

 Pros/Cons of Changing to District-based Elections System: The list below is a preliminary list based on information to date and will be expanded during/following public comment and City Council discussion.

Pros:

  • Avoidance of litigation expenses likely to range from hundreds of thousands of dollars to over a million dollars, because of liability for payment of prevailing plaintiffs’ attorney’s fees, expert witness fees, and other costs.
  • Enhancement of impact of minority votes on election results, making accurate representation of the community more likely.
  • Decrease in cost of individual election campaigns, thus making it more likely that minority and non-minority candidates will choose to run for City Council.
  • Increased minority participation in local government is more likely.
  • Increased chance for election of minority Councilmembers.

Cons: 

  • Catering to their own district’s voters, potential that City Councilmembers will advocate/vote more for their own districts rather than acting for the good of the City as a whole.
  • If Office of Mayor remains separately elected, potential for enhanced role of Mayor who can be the swing vote on issues in any district.
  • If City litigates and loses, districts will be established by the judge, with input from plaintiffs and the City, rather than by the City, possibly resulting in less optimal districts.
  • Possible negative impact on minority interests if nonminority candidate prevails in election in district with the most minority voters.

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 will be considering this matter again at its December 4 and 18 Council meetings, and additional outreach will be conducted.

Fiscal Impact: 
The fiscal impact of a change to district elections is unknown at this time.

Recommended Action:
Staff recommends that the City Council receive public comments and deliberate further on the issue of district-based elections in San Rafael.

Attachments:
November 10, 2017 letter to City from attorney Kevin Shenkman
Draft Questions and Answers (see below)

Questions & Answers

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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