By Mark Gutglueck
Like the city of Highland before them, the cities of Rancho Cucamonga, Upland and Chino are on the brink of capitulating to the threats of three law firms demanding that they reorganize their respective municipal governance representation formulas to include ward systems, i.e., councilmanic districts.
In San Bernardino County, only the two oldest cities, San Bernardino and Colton, have ward systems. In all 22 of the county’s other incorporated cities, the council members are elected at large.
In 2001, the California Voting Rights Act was passed by the California Legislature and signed into law by then-Governor Gray Davis. The California Voting Rights Act established expanded protections for voters in minority groups to elect candidates of their choice. The Act was based on and furthered the provisions of the Federal Voting Rights Act of 1965, which outlawed voting practices that discriminated against minority voters.
Under the California Voting Rights Act, so-called protected groups – members of a race, color or language minority groups – are empowered to challenge a government agency’s at-large election system. By establishing that “racially polarized” voting has taken place in a city with an at-large voting system, a protected group can push to have an agency, city or school district convert to a by-district or ward voting system.
The way it has worked out practically in the fifteen years since the Act went into effect is the “protected group” that most often avails itself of the protections has been the Hispanic community. Far less effort has been made by African Americans to use the Act, perhaps because in predominantly black areas, African-Americans have acceded to political office. Likewise, Asian Americans have succeeded in achieving elected office. In Upland, for example, both the city’s Congresswoman, Judy Chu and its state senator, Carol Liu are Asian Americans, and its representative in the California Assembly is Chris Holden, who is African-American.
In some cities where Latinos represent a significant percentage of the population, there are no Hispanics on the city council. In Rancho Cucamonga, for example, 43 percent of the population is Caucasian, 35 percent is Latino, 11 percent is Asian and 9 percent is African American. In Upland, 44 percent of the population is Caucasian, 39 percent is Latino, 7 percent is African American and 9 percent is Asian.
While cities all over California have been voluntarily complying with or making a show of complying with the California Voting Rights Act of 2001, in some cases Latino activists have taken up the cause of using whatever tools exist in the Act to either put Hispanics into political office or at least enhance the chances of doing so.
A case in point was the city of Highland, in which 48 percent of its 53,104 residents are Hispanic. Yet no member of the city council is now or has ever been Latino. In 2014, resident Lisa Garrett, who claimed Latino lineage, maintained that the city’s Hispanic population was not properly represented given that approaching half of the city’s residents have Hispanic ancestors but the city has never had a Hispanic council member. Represented by the Lancaster-based R. Rex Parris Law Firm, Malibu-based Shenkman and Hughes and Milton C. Grimes of Los Angeles, Garrett filed a lawsuit, alleging that the city is violating the California Voting Rights Act of 2001 by continuing to hold at-large elections and not switching to a ward system whereby minority voters would stand a greater prospect of electing one of their own ranks to office.
In response to the lawsuit, the city council directed Highland City Attorney Craig Steele to draft documents that were later enacted by the council, placing a measure on the ballot in the November 2014 election. Measure T would have divided the city into five voting districts. Ward district elections would have begun in 2016 with two districts. The remaining three districts would have been subject to the 2018 election, according to the terms of the measure. Two of those districts would have contained a majority of Hispanic voters, and a third ward would have been populated by residents, more than 40 percent of whom were Latino. On election day in 2014 and by absentee ballot, 6,655 of the city’s voters participated, with 43.01 percent, or 2,862 voting in favor of Measure T and 3,793 or 56.99 percent rejecting it.
In December 2015, the Shenkman and Hughes law firm sent out letters to a slew of cities, threatening them with a lawsuit under the California Voting Rights Act.
Rancho Cucamonga was a recipient of one of those letters. No Latino has served on the city council since Rex Gutierrez was forcibly removed from the council twice, once in the 1980s and again seven years ago. Shenkman and Hughes charged that with Latinos accounting for more than one-third of the electorate, the extended period without a Hispanic being elected to the council is evidence of “polarized voting” in Rancho Cucamonga, a city with a population of 165,269.
Based on the unfortunate experience of some other California Cities where resisting similar legal actions resulted in settlements of anywhere from $1 million to a $4.7 million judgment based on indications or determinations that minorities were effectively denied an opportunity to voted into office, Rancho Cucamonga City Attorney James Markman is recommending that the council undertake a process to effectuate district or ward elections. The city council cannot simply impose such a system, however. With Rancho Cucamonga’s population above the 100,000, voters here have to weigh in on the issue. The council is now purposed to hold three public hearings on April 6 and 20 and May 4 at which the city’s residents will be heard from with regard to how boundaries should be delineated. A vote on approving the proposed district map and the ward electoral process will then go before the city’s voters in November.
For more than two months, the Upland City Council has been holding closed door discussions with regard to one item of potential litigation. That issue remained a public mystery until this week it was revealed that the potential litigation referenced was the threat of a lawsuit by the Southwest Voter Registration and Education Project, which is represented by the Shenkman and Hughes law firm. On the agenda for the Monday March 28 Upland City Council meeting posted on Thursday March 24, there is an item calling for a $45,000 “settlement agreement with Southwest Voter Registration and Education Project, to place a measure on the November 2016 ballot to change the city council elections from at-large to district based elections to address potential California Voting Rights Act issues. “
City manager Rod Butler and city attorney Richard Adams wrote in the report for that item, “The California Voting Rights Act (CVRA) authorizes suits challenging at-large elections that are applied in a manner that impairs a minority group’s ‘ability to elect’ its chosen candidates, or ‘ability to influence’ the outcome of an election. A violation of the California Voting Rights Act does not require proof of discriminatory intent. Rather, a violation of the California Voting Rights Act is established if it is shown that racially polarized voting (“RPV”) occurs in elections for members of the governing body or in elections incorporating other electoral choices by the voters of the political subdivision. In determining whether there is a violation, one thing the court can consider is the extent to which ‘candidates who are members of a protected class and who are preferred by voters of the protected class, as determined by an analysis of voting behavior, have [or have not] been elected to the governing body’ subject to the California Voting Rights Act challenge. The presumption underlying the California Voting Rights Act is that if a city had a by-district system, then minority candidates who are not elected under the at-large electoral system would, instead, be able to get elected to the city council. As such, a violation of the California Voting Rights Act allows a court to mandate that a city change to a district based electoral system.
If a city is found liable for violating the California Voting Rights Act, a court must implement ‘appropriate’ remedies (including the imposition of district-based elections) that are tailored to remedy the violation. In other words, a court is not limited to the imposition of a by-district electoral system as the only remedy. The statute is open-ended in the available remedies for a court to consider, limited only by what is ‘appropriate…to remedy the violation.’ Some courts have ordered implementation of district-based elections, selected the district boundaries in lieu of the council doing so, required special elections to replace all current council members, and imposed other remedies where violations have been found. ‘District-based elections’ means a method of electing members to the governing body of a political subdivision in which the candidate must reside within an election district that is a divisible part of the political subdivision and is elected only by voters residing within that election district.”
Butler and Adams’ report continued, “Of all the California Voting Rights Act cases which have been filed throughout the state, only one city has successfully had a case against it under the California Voting Rights Act dismissed. Even though that city voluntarily placed a measure on the ballot to allow for district-based elections, the city was still ordered to pay attorney’s fees and costs just under $1 million. Other cities which have gone to trial and lost California Voting Rights Act cases have paid attorneys’ fee orders upwards of $3 million, not including their own fees for defense. Even if a city succeeds in defending against a California Voting Rights Act case, it cannot recover its own attorneys’ fees from the plaintiffs. Under all these circumstances, becoming involved in California Voting Rights Act litigation is expensive and fraught with peril. In Upland’s case, with the direction of council, the city attorneys’ office has been able to negotiate a settlement agreement with the potential plaintiff, the Southwest Voter Registration and Education Project, that will avoid litigation and all its attendant risks and expenses, while preserving the rights of Upland’s citizens to affirmatively vote on the issue of district elections and to maintain control of the process of selecting district boundaries.”
According to Butler and Adams, “For a general law city the size of Upland, there are two ways of establishing district-based elections without litigation. One is for the council to adopt an ordinance establishing district-based elections and then going through a district boundaries selection process. The other is to place a measure on
the ballot to allow registered voters to determine whether or not to establish district-based elections. Such a ballot measure would describe how the system would operate and provide geographical boundaries for the proposed districts. The geographic districts formed must be roughly equal in population according to the latest federal decennial census. Factors which may be considered in creating the districts are: (1) topography, (2) geography, (3) cohesiveness, contiguity, integrity, and compactness of territory, and (4) community of interest of the districts. One council member will be chosen from each district only by the voters residing in that district. In Upland’s case, because the city already has a directly elected mayor, the likely outcome of the public districting process would be establishment of four districts, although it is possible that six districts could be proposed.”
The report continues, “In essence, the city had three choices in responding to the Southwest Voter Registration and Education Project California Voting Rights Act claim. The first was to decline to take any action and then defend any litigation which was filed. The second was for the council to adopt an ordinance establishing district-based elections without a vote. The final option was to allow the citizens to fully participate in the decision by engaging in a public process to identify proposed district boundaries and using a ballot measure to get voter approval of districts. Elections would continue to be staggered so that some council members will be selected at one election and the remaining council members will be selected at the next election.
“With this report the city attorney’s s office is recommending that the city council enter into the attached settlement agreement,” Butler and Adams state. “As noted, settling the matter as provided in the agreement protects the city from litigation and attendant expenses, while still allowing full public participation in the decision making process for district-based elections. Pursuant to the attached settlement agreement, the city and Southwest Voter Registration and Education Project agree that the city will contract with Compass Demographics to design one or more electoral maps for public and council consideration. The process for developing the electoral district map will include, at a minimum, two public hearings on a proposal to establish the district boundaries prior to a public hearing at which the city council votes to approve the electoral district map. The settlement agreement further provides that on or before August 16, 2016 the city council will place on its agenda for action a resolution to place a ballot measure on the Statewide General Election Ballot to occur on November 8, 2016, asking whether Upland should change from an at-large method of election to a by-district method of election with the proposed district lines to be included in the measure and requiring by-district elections for the non-mayoral city council seats for the November 2018 city council elections and thereafter. The city council will authorize the council to make an argument in favor of the ballot measure; however it will not make a ballot argument in opposition to the measure as an official council action. Finally, the city will pay to Southwest Voter Registration and Education Project the sum of $45,000 as a settlement of all costs, expenses and fees it incurred in preparation for bringing litigation in this matter. The city will incur $45,000 as settlement of this claim and will also incur approximately another $20,000 for consulting fees to assist with the development of district maps. There will be some additional costs for preparation of the ballot measure and placing it on the November 2016 general election ballot.”
The Chino City Council on March 18 held a special meeting at which it directed staff to draft an ordinance so that council members are elected by district. That action came in response to a letter written to the city by the Shenkman and Hughes law firm, according to city attorney Jimmy Gutierrez.
By Mark Gutglueck