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Flurry of Recent California Voting Rights Activity

December 1, 2017 | Richard E. Nosky Jr
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Since the recent passage of Assembly Bill 350 in 2017, there have been a number of California cities either being sued or threatened with litigation under the California Voting Rights Act (CVRA). The CVRA essentially mandates that cities modify their at-large election systems to district based elections whenever “polarized voting” occurs in these jurisdictions. While “polarized voting” is not easy to define, recent court decisions have found it to exist simply whenever voters of different racial or ethnic groups exhibit different candidate preferences in an election.

This low standard has resulted in many jurisdictions being faced with the threat of costly litigation and/or attorney fee awards if they do not change their at-large electoral systems to districts. No California jurisdiction has ever successfully defended itself in court from a CVRA challenge.

Under AB 350, prospective plaintiffs are required to send a written demand letter alleging that the local government has violated provisions of the CVRA. Upon receipt of the letter, a local government has an initial 45 days of safe harbor to assess their needs and make a determination if they wish to contest the alleged violation or convert to districts through the ordinance process. No election is required unless a charter city’s election system is specified in its charter.

Should the city choose to convert to districts through the ordinance process, the city is afforded an additional 90 days to comply before a lawsuit can be filed. There is also a hard cap on attorney fees of $30,000.

The vast majority of the recent voting rights challenges emanate from Malibu attorney Kevin Shenkman, whose targets are mostly (but not exclusively) in Southern California.  In addition, a consortium of Bay Area attorneys consisting of Robert Rubin, Morris Baller and others have recently challenged several Northern California jurisdictions.

There appears to be a slowly growing trend toward cities pushing back in varying degrees, instead of just capitulating to claimed CVRA violations. As shown in prior jurisdictions (Modesto, Anaheim, Palmdale), the potential downside is significant, especially in light of the cap on attorney fees offered by AB 350.

Here is an updated summary (not an inclusive list) of some of the latest California cities recently involved with voting rights issues since the advent of AB 350 and their present status:

Atwater— Received a demand letter from Shenkman on June 12, 2017. The City Council voted to change to four Districts (plus an at-large Mayor) on October 9, 2017. A map has been adopted and the initial elections will be held in 2018.

Carlsbad–Received a demand letter from Shenkman on April 5, 2017 and is presently utilizing the safe harbor provisions of AB 350. The City Council voted to change to four Districts (plus an at-large Mayor) on May 9, 2017. A map has been adopted and the initial elections will be held in 2018.

Encinitas— Received a demand letter from Shenkman on July 20, 2017. The City Council voted to change to four Districts (plus an at-large Mayor) on November 15, 2017. A map has been adopted and the initial elections will be held in 2018.

Fremont–Received a demand letter from Shenkman on February 15, 2017 and has adopted a resolution of intent to change from an at-large electoral system to a district-based system and is presently in the process of adopting district maps in accordance with AB 350. Maps creating four districts (plus an at-large Mayor) were adopted on June 13, 2017 and the initial elections will be held in 2018.

Huntington Beach–Received a demand letter from Shenkman on April 5, 2017 and is planning to contest the voting rights challenge in court both on the grounds that the city’s voting is not racially polarized and that the CVRA is unconstitutional.

Lake Forest— Received a demand letter from Shenkman on April 10, 2017. After embarking on the AB 350 process, the City Council on August 1st decided to place measures on the next general municipal election in 2018 to give residents a say in how many districts they want and whether they want a directly elected or at-large Mayor. Meanwhile, the Council is still conducting AB 350 hearings.

Lompoc–Received a demand letter from Santa Barbara attorney Micah Fargey on July 25, 2017 and is presently utilizing the safe harbor provisions of AB 350.

Mission Viejo–Received a demand letter from Shenkman on September 29, 2017. The City Council passed a resolution of intent to move towards district elections Oct. 24, 2017. On November 28th, however, the Council gave staff direction to spend up to $100,000 to investigate the City’s past elections to evaluate whether polarized voting has occurred. Hearings required under AB 350 will continue.

Morgan Hill–Received a demand letter from Baller on May 5, 2017 and is presently utilizing the safe harbor provisions of AB 350. The City Council voted to change to four Districts (plus an at-large Mayor) on June 7, 2017. A map has been adopted and the initial elections will be held in 2018.

Oceanside— Received a demand letter from Shenkman in March 2017 and adopted a map with four Districts (plus an at-large Mayor) on July 25, 2017.

Poway–The City Council approved district elections on October 3, 2017, after receiving a letter from Shenkman. Shortly thereafter, former Poway Mayor Don Higginson filed a federal lawsuit challenging the constitutionality of the CVRA. Higginson is being represented by The Project of Fair Representation, a nonprofit legal foundation based in Arlington, Va., which will fund the litigation.

Santa Clara–Received a demand letter from Rubin on October 16, 2016, who filed litigation against the city on March 31, 2017. The City has not formally adopted the intention to follow AB 350 but has appointed a charter review committee to review potential changes to its electoral system. The charter review committee has recommended to the City Council that the City be divided into two election districts with three representatives each and an at-large Mayor.

Santa Monica–Shenkman filed a CVRA lawsuit against the city in 2016 and earlier this month prevailed against the city’s efforts to have the case dismissed. The case is apparently going to trial.

Vista–Received a demand letter from Shenkman on February 13, 2017 and formally commenced the process under AB 350 to move to districts on March 28, 2017. It adopted districts on June 13, 2017.

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CONTACT

Ren Nosky is a government law attorney with the San Jose based firm of Berliner Cohen LLP. If you have any questions, please contact him at richard.nosky@berliner.com or (408) 286-5800.

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