The mad rush toward transitioning local governmental elections from at-large contests into ward-based ones could be attenuated or perhaps even reversed based upon a lawsuit emanating out of San Diego County that has been filed in United States District Court.
In the past two years, eight San Bernardino County cities have abandoned their longstanding tradition of electing their city council members at-large, and have instituted electoral wards in their respective jurisdictions. Similar demands have been made against school districts and other governmental entities.
In at-large elections, all voters can vote for all seats up for election and the candidates can qualify for the ballot by residing anywhere within the jurisdiction they are vying to represent. In the case of a city council election, where in a given election cycle as many as two, three, four or more seats may be up for election, voters are permitted to cast the same number of votes as there are open posts. In ward-based elections, the overall jurisdiction is divided into separate districts and a ward’s representative must reside within that particular district and voters are permitted only to vote to elect a representative from their own ward.
The issue of at-large vs. ward-based elections has become a centerpiece in the debate over voting rights, with some voting rights advocates maintaining that ward-based systems can empower minority voters by making it more likely that a minority candidate in a ward that is more heavily-laden with minority voters will be elected than if that minority candidate must stand for election in a contest in which all of the voters of the jurisdiction are participating, thus diluting the minority vote.
A key progression toward the establishment of across-the-board voting rights came with the federal Voting Rights Act of 1965, which was designed to limit or abolish restrictions on voting that were either intended to or had the practical effect of discouraging racial or ethnic minorities from participating in the electoral process.
A concept at play in regard to both the Voting Rights Act’s language and application is that of proportional representation. Proportional representation under the strictures of representational government appears to be an impossible goal, given the sheer numbers of racial and ethnic minorities, subgroups and the likelihood that the numbers of these groups will be out of synchronization with the number of elected positions.
While Section 2 of the Voting Rights Act prohibits any jurisdiction from implementing a “voting qualification or prerequisite to voting, or standard, practice, or procedure… in a manner which results in a denial or abridgement of the right … to vote on account of race,” color, or language minority status, the Supreme Court held that as originally enacted in 1965, Section 2 simply restated the Fifteenth Amendment and thus prohibited only those voting laws that were intentionally enacted or maintained for a discriminatory purpose. In 1982, however, Congress amended Section 2 to create a “results” test, which prohibits any voting law that has a discriminatory effect irrespective of whether the law was intentionally enacted or maintained for a discriminatory purpose. The Supreme Court, however, has ruled that the Voting Rights Act does not guarantee protected minorities a right to proportional representation. The Supreme Court has held that complying with Section 2 of the Voting Rights Act to protect minorities against vote dilution could be a compelling interest that upholds a districting plan. Nevertheless, the Supreme Court has also emphasized that Section 2 is in obvious tension if not outright conflict with the Fourteenth Amendment because it makes race the predominant factor in districting decisions. The Supreme Court issued a series of decisions in an effort to resolve this dilemma. Ultimately, the highest court in the land held that an at-large voting system can be said to violate Section 2 of the Voting Rights Act only if a minority group proves that it can form a compact single-member district and that voting under the existing at-large system is racially polarized.
These requirements are needed, the Supreme Court maintained, so that Section 2 functions as an anti-discrimination provision, and is not an unconstitutional mandate to maximize electoral power on the basis of race.
In 2001, the California Legislature enacted its own voting rights act — the California Voting Rights Act of 2001 — which went somewhat further than the federal Voting Rights Act of 1965 and overrode the constraints the Supreme Court had imposed with regard to making a constitutionality test on the provisions of Section 2.
Under the California Voter Rights Act, a plaintiff or plaintiffs can file legal action against a governmental jurisdiction alleging polarized voting has taken place in its past elections and seek the remedy of having that jurisdiction switch from at-large elections to ones involving ward systems. Upon proving such polarized voting exists, the courts will then require that the governmental entities adopt the ward system and require that the governmental entity pay the legal fees for the attorney or attorneys representing the plaintiff[s]. The California Voter Rights Act confers upon plaintiffs a significant advantage, such that even if the challenge does not succeed, a plaintiff is not required to pay the prevailing city’s legal fees.
Over the last several years, a handful of California cities resisted challenges made to their election systems under the California Voting Rights Act and were unsuccessful in those legal defenses. The courts then forced them to pay substantial amounts to cover those legal fees. In response to these challenges, more and more cities moved to what is referred to as the “safe harbor defense” in which they would not contest the allegation of polarized voting having occurred and immediately comply with the demand for the electoral system change. This safe harbor would allow them to avoid having to pay the plaintiff’s attorney’s fees.
In San Bernardino County, Highland was the first San Bernardino County city served with a demand that it alter the way it elects its council members. The lawsuit was filed July 18, 2014 in San Bernardino Superior Court by a Lancaster-based lawyer, R. Rex Parris, in conjunction with the Malibu-based law firm Shenkman & Hughes and the Los Angeles-based Law Office of Milton C. Grimes on behalf of Lisa Garrett, a Latino resident of Highland. In response, the city put an initiative on the November 2014 ballot, Measure T, asking if the city’s residents were in favor of a ward system. Measure T went down to defeat, with 2,862 votes or 43.01 percent in favor and 3,793, or 56.99 percent opposed. The lawsuit proceeded and the city sought to assuage the demand by proposing to allow cumulative voting, in which each voter is given one vote for each contested position and is allowed to cast any or all of those votes for any one candidate, or spread the votes among the candidates. When the matter went to trial, despite making a finding that the socio-economic based rationale presented by the plaintiff’s attorneys to support the need for ward elections was irrelevant and that the plaintiff’s assertion that district voting was the only way to cure the alleged violation of the Voting Rights Act was false, San Bernardino Superior Court Judge David Cohn mandated that Highland adopt a ward system.
Beginning in December 2015 Kevin Shenkman, using the letterhead of his firm, Shenkman & Hughes, sent boilerplate letters to the cities of Chino, Upland, Rancho Cucamonga, Redlands and Fontana among more than a dozen others outside San Bernardino County, asserting the cities “relie[d] upon at-large election system[s] for electing candidates to [their] city council[s]” and charged that “voting within [those cities] is racially polarized, resulting in minority vote dilution, and therefore [those cities’] at large elections are violative of the California Voting Rights Act of 2001. It is our belief [those cities’] at-large system[s] dilute the ability of minority residents – particularly Latinos (a “protected class”) – to elect candidates of their choice or otherwise influence the outcome of [those cities’] council elections.” In those letters, Shenkman threatened to sue the cities “on behalf of residents” if those cities’ at-large council systems were not replaced by ones based on district representation.
To emphasize his point and raise the level of intimidation, Shenkman wrote, “As you may be aware, in 2012, we sued the City of Palmdale for violating the California Voting Rights Act. After an eight-day trial, we prevailed. After spending millions of dollar, a district-based remedy is ultimately being imposed upon the Palmdale city council (sic), with districts that combine all incumbents into one of four districts.”
The Mexican American Legal Defense and Education Fund likewise made a similar demand and threat to the City of Chino Hills. In short order, Chino, Upland, Rancho Cucamonga, Redlands, Fontana and Chino Hills, ever conscious of what had befallen Highland, folded, moving to adopt ward systems.
This year, Shenkman and attorney Bob Conaway sent a letter to the City of Victorville, which currently has three Latino council members, demanding that the city switch to a ward-based voting system to prevent African American voters there from being disenfranchised. The city has not yet caved into that demand, though the city council has consulted with its attorney with regard to doing so.
On October 4, former Poway mayor Don Higginson, with the assistance of the Austin, Texas-based Project On Fair Representation and represented by Arlington, Virginia-based attorneys Bryan K. Weir, William S. Consovoy, Thomas R. McCarthy, J. Michael Connolly, filed a lawsuit in California federal court challenging the constitutionality of the California Voting Rights Act.
The suit came one day after the Poway City Council capitulated in the face of a demand letter from Shenkman the city received on June 7 notifying it that the city would be sued under the California Voting Rights Act unless it ended its at-large form of city council elections and created race-based, single-member districts instead. Though each of the council’s members said they were opposed to the making the change, they said the prospect the city faced of having to expend hundreds of thousands of dollars in legal fees unless it made the change prompted them to make the unanimous October 3, 2017 vote creating four single-member election districts.
Higginson’s suit propounds, “Under the California Voters Rights Act, local governments must abandon at-large voting systems if racially polarized voting exists — regardless of whether the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district. Accordingly, the California Voters Rights Act flagrantly violates the Fourteenth Amendment. Its ‘race-based sorting of voters’ does not serve a ‘compelling interest’ nor is it “narrowly tailored.”
According to Edward Blum, the Project On Fair Representation president, “The new districts were racially gerrymandered in order to meet the requirements of the California Voter Rights Act. The California Voter Rights Act was passed by the California Legislature in 2001 in an attempt to overrule and circumvent U.S. Supreme Court decisions that limit the use of race and ethnicity in the creation of election districts. The California Voter Rights Act has recently been utilized by a handful of attorneys to demand that dozens of California localities abandon longstanding, at-large forms of voting systems in favor of race-based, single-member districts. This law is clearly unconstitutional. As the Supreme Court has explained: ‘Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further away from the goal of a political system in which race no longer matters – a goal that the Fourteenth Amendment embodies, and to which the nation continues to aspire.’”
Higginson said, “It was only because the City of Poway had a proverbial gun to its head that these districts were adopted. Every member of the City Council knew that it would cost Poway millions of taxpayer dollars to fight this in court. These new districts will compel city council members to only represent the people who live in certain neighborhoods and not consider what’s best for all of Poway. This is not how small communities stay united for the benefit of all citizens, regardless of their race and ethnicity.”
Higginson continued, “Every voter in Poway should feel personally offended by the fact that being forced to go to district elections will eliminate your power to vote for a majority of the Poway City Council. Furthermore, through threat of litigation, scores of other cities and school districts across the state have been—and will continue to be—subject to this same damaging result.”
Higginson said he and his attorneys would stand up for the electorate’s rights, even if the cities were unwilling to do so because they are being strong-armed by attorneys functioning under the double standard of the California Voter Rights Act which gives plaintiffs a free ride to pursue litigation without fear of having to pay up if they lose. “Unfortunately, the city felt that it had no ability to challenge Mr. Shenkman’s demand, even though the council members were quite clear that, but for the California Voter Rights Act, the city would not have switched to by-district elections. Nevertheless, as an affected voter, I do have the ability and felt compelled to challenge the constitutionality of the California Voters Rights Act under the Equal Protection Clause of the Fourteenth Amendment. I trust that the courts will give this matter the careful attention and review it deserves.”
In San Bernardino County, where eight cities have been straitjacketed by lawyers using the California Voters Rights Act into accepting ward systems in lieu of their historical at-large voting processes, resentment over the matter is universal, with elected officials and residents alike rejecting the accusation that polarized voting or racism is institutionalized into their communities. They point out that in a majority of the cities targeted in this fashion, members of protected minority groups have achieved elected office. In some cases, particularly those in which racial or ethnic heterogeneity is evenly spread throughout the community, they assert the election system changeover is more likely to result in fewer minorities being elected. Others object to the imposition of ward systems because of their potential for creating a set of fiefdoms within a city wherein if not absolute, near absolute, power is installed in a single individual within each of those geographical divisions, rendering each elected official into a political boss in effect separately attended by a retinue of political henchmen fiercely loyal to that office holder, who is able to dole out perks and favors at will, and able to act with utter ruthlessness and efficiency, unchecked by the majority of voters within the city as a whole who must live with the impacts of such depredations.
At present Victorville is under the gun to comply with one such demand issued by Shenkman and another attorney, Bob Conaway. In their letter, Shenkman and Conaway are not alleging that it is Hispanic voters who are disenfranchised in Victorville, but rather African Americans. And while city after city in San Bernardino County has previously folded before the onslaught of such demand letters and moved to adopt ward electoral systems, with the lodging of Higginson’s lawsuit at the federal level, along with other considerations and challenges of the California Voters Rights Act, there is a real prospect that the stampede toward district voting within California cities and local jurisdictions will end. Indeed, if Higginson prevails, there is a chance that many of the cities that have gone to ward systems might reverse course and readopt at-large voting.
In Victorville, councilman Jim Cox, who was the city manager there for more than 32 years, said he was willing to contest the lawsuit Shenkman and Conaway were threatening, although he said he could not speak for his council colleagues.
“In March or sometime shortly thereafter, the U.S. Supreme Court is going to address the one man one vote rule,” said Cox. “The conversation that is coming out of what is going on in the federal courts, I think, is something that is leading people back to the concept or the principle of one man one vote. I don’t think there is anyone, or any responsible person, in government or out, who is not in favor of equal voting rights. That is exactly what we do at the local level right up to the state level and the federal level, which is to try to come up with a way that is inclusive of everyone. I am not against what you see as the goal in the California Voting Rights Act, which is that you don’t have a concentration of one people consistently outvoting another set of people. The problem is that the California Voting Rights Act seems to be in contradiction to the U.S. Constitution and maybe even the California Constitution. The idea being put forth by the people that want change is that mere minority representation in every case is what is needed. The argument is that only a Hispanic candidate can represent Hispanics and only an African American can represent African American constituents. That seems to be the assumption in this California law. That’s a crazy assumption and it is as discriminatory as you get. In a city of this size, you represent everyone, period. It is true that right now we don’t have an African-American on the city council. But we did at one time and he [former councilman Jim Busby] was elected and reelected. Even if the ward model is applicable in some places, it does not fly here. We do not have pockets of minorities in this city. Victorville is actually so diversified you cannot draw a district that will assure that anybody of one minority group will be automatically elected or have a strong voice. If you did, you would have to gerrymander it in a way that the district would look like a spiderweb. If you were to draw boundaries like that, the state legislature would almost assuredly reject it. If you draw boundaries at all, you are more likely to assure that an African American won’t get elected.”
Cox continued, “I have a bachelor’s degree in political science and a master’s degree in public administration. I worked in government for 35 years. I’ve given this a lot of thought. We’ve tried to reason with the people who have brought this lawsuit. No matter what you do, there is going to be an argument to be made that someone is going to get left out. And then that leaves it open for another attorney to disagree and dispute what you have done and capture legal fees, and the first person who contests it will probably succeed in having the court throw out the gerrymandered plan and the next and so on. When you look at it, Victorville is the model of a diversified city, so you have to assume these challenges are being done purely for monetary reasons. I believe the Supreme Court will no doubt eventually rule that the California Voters Rights Act is flawed and that the principle of one man one vote will prevail. But the reality is that on this, no one is going to win. There will be a series of illogical boundaries drawn up and maybe some logical ones and it is going to be a very lengthy process and a very expensive process, and what we will get will be no better than what we have at the present time.”
–Mark Gutglueck