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Claim Filed Against City of Davis Demanding Shift to District-based Election System

Post Date:July 23, 2019 2:49 pm

The City of Davis is facing a formal legal threat that it shifts to a “district-based” election system for City Council races after receiving a letter from an attorney warning that it could face millions of dollars in legal costs if it does not comply.

Due to statutory and County elections deadlines, any transition to district-based elections would not impact the March 3, 2020 election, but could take effect in March 2022.

The claim filed by Matt Rexroad, a political consultant and attorney who formerly served as a Yolo County Supervisor, asserts that the city is experiencing “the insidious effects of racially polarized voting and vote dilution.”

Rexroad’s letter demands that the city act by August 15, 2019, to “take certain actions that demonstrate Davis’ intention and specific plan to transition to district-based elections. If we do not receive a response by that date,” Rexroad’s letter further states, “we will be forced to seek judicial relief on behalf of the residents of Davis.” The letter does not identify who the specific plaintiffs are nor does it identify the actions that must be taken to fulfill the demand.

The City Council has not made a decision regarding whether to shift to a “district-based” system, commonly referred to as district elections, but will consider in upcoming meetings how to respond to the demand letter. Currently, all five City Council members are elected “at-large” by the entire city electorate and do not represent districts. In a “district-based” election system, the City would be physically divided into separate districts, and a candidate would have to live in the district he or she intends to represent and be elected only by the voters residing within that election district.

The city received the letter (see attached) from Rexroad’s Sacramento law firm on July 1, 2019, asserting that City of Davis’s at-large elections violate the California Voting Rights Act of 2001 (CVRA) and alleging that there is evidence of racially polarized voting in the City’s elections, resulting in minority vote dilution. The City’s legal counsel immediately began reviewing the demand letter and mapping out the next steps for the City. (Background information on this legal issue is attached.)

State law gives a city 45 days following receipt of a CVRA demand letter to decide whether to adopt a resolution declaring its intention to transition to district-based elections. State law then provides an additional 90-day period for a city to hold a series of public hearings and adopt an ordinance implementing such a change in its election process. If a city does so within 90 days, it is required to pay up to $30,000 in legal fees to the plaintiff making the demand for district-based elections, but does not incur any additional liability, which has amounted to millions of dollars from litigation in other jurisdictions.

The City contacted the Yolo County Elections Office to determine the applicable deadlines for the March 3, 2020 election. The County has stated that it would have to receive the district boundaries before September 12. This would not provide adequate time for the City to conduct the required public hearings and vote on an ordinance establishing districts. Therefore, the March 3, 2020 election will not be impacted by any decision to transition to districts. The first Davis municipal election that could potentially be district-based would be in March 2022.

The Davis City Council has scheduled a special City Council meeting on Tuesday, August 13, 2019, to consider this matter. The meeting begins at 6:30 p.m. at City Hall in the Community Chambers, located at 23 Russell Boulevard in Davis.

City Manager Mike Webb states, “Irrespective of one’s views on the merits of a district-based system, the statute requires prompt action by the City. The timing is challenging, as it is a weighty and complex policy matter that falls during the summer break in a university community when many are out of town. However, the City must take up consideration of this to comply with the process set forth in State law pursuant to such demand letters, and to avoid incurring potentially significant legal fees. Ensuring adequate time to gather community input and allowing the City to incorporate updated population statistics from the 2020 US Census would be beneficial to any consideration of a district-based system. Understandably, there will be strong community interest in this topic, and we will work diligently to keep the community apprised of the process, next steps, and opportunities for input.”

While the CVRA requires a plaintiff to show evidence of racially polarized voting, the threshold for establishing a CVRA violation is low and the statute gives courts broad discretion in implementing remedies if it finds that a violation exists. Accordingly, since the adoption of the CVRA in 2001, numerous jurisdictions throughout the state have faced challenges to their at-large election systems. The majority of those jurisdictions have voluntarily switched to district-based elections to avoid litigation and exposure to attorneys’ fees.

A few cities have decided to defend against these actions, but none have prevailed on the merits. In addition to the low threshold for establishing a valid claim under the CVRA, the law also requires the city to pay a plaintiff’s attorney’s fees and costs if the plaintiff prevails. Plaintiffs’ attorneys’ fees and costs in CVRA cases often amount to millions of dollars.

The process of making a switch is set forth in state law and is elaborate. The Davis City Council would need to conduct a minimum of five public hearings to determine the number and composition of the districts. The Davis community would have an opportunity to provide input and opinions regarding the composition of the districts during the first two public hearings. Then, district maps would be drafted, and two additional public hearings held for the public to provide input on the draft maps and proposed sequence of elections. At the final public hearing, the City Council would vote to consider an ordinance establishing district-based elections.

Staff and legal counsel continue to review the City’s options. A move to district elections requires compliance with various statutes as well as deadlines implemented by the County Registrar for consolidated elections. At the direction of the City Council, the City’s lawyers are in contact with Rexroad Law to discuss timeframes and various options with respect to the City Council consideration of district-based elections.

For those wishing to submit comments or feedback to the City on this matter, please email districts@cityofdavis.org.


Demand Letter


Davis District Elections Public Memo

The California Voting Rights Act and the City’s Consideration of District-based Elections

On July 1, 2019, the City received a letter from Rexroad Law alleging that the City’s at-large election system for electing councilmembers violates the California Voting Rights Act (“CVRA”). The letter threatens legal action if the City does not take action to transition to district-based elections within the timeline provided in Section 10010 of the Elections Code.

I. Legal Background

A number of cities in California have been sued since the CVRA was adopted in 2001, and all of them have either voluntarily moved to district-based elections or been ordered to do so. The CVRA is found in Sections 14025 through 14032 of the California Elections Code. It prohibits an at-large election system from being applied in a way that impairs the ability of a protected class to elect candidates of its choice or influence the outcome of elections because of the dilution or abridgment of the rights of the voters who are members of the protected class (CA Elections Code § 14027). Traditional at-large voting allows voters of an entire jurisdiction to cast votes for each open seat but could assign only one vote to any particular candidate.

The term “protected class” is broadly defined 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" (CA Elections Code § 14027). A violation of the CVRA exists if racially polarized voting exists in the jurisdiction’s elections (CA Elections Code § 14028(a)). The term “racially polarized voting” is defined as voting in which there is a difference “in the choice of candidates or other electoral choices that are preferred by voters in a protected class, and in the choice of candidates and electoral choices that are preferred by voters in the rest of the electorate" (CA Elections Code § 14028(a)).

The threshold required for showing a violation of the CVRA is low. For example, a minority group does not have to be geographically compact or concentrated to allege a violation of the CVRA. Finally, proof of intent on the part of the voters or elected officials to discriminate against a protected class is not required. The main remedy under the CVRA is to move to district-based elections, which is a method of election in which “the candidate must reside within an election district . . . and is elected only by voters residing within that election district” (CA Elections Code § 14026(c)).

II. Litigation Risk

The CVRA includes an attorney’s fees provision that entitles a prevailing plaintiff to recover its attorney’s fees and litigation expenses, including expert witness fees and expenses (CA Elections Code § 14030). On the other hand, a prevailing defendant jurisdiction is not entitled to recover any costs, unless the court finds the action to be frivolous (CA Elections Code § 14030).

Attorneys’ fees and costs in CVRA cases tend to be high because they involve the retention of multiple expert witnesses who analyze the demographics, voting trends, and election results of the city. They also analyze whether racially polarized voting exists based on an examination of a city’s election history. Plaintiffs in these cases tend to have at least two or three expert witnesses. In addition, the defendant city would also employ experts to engage in similar analyses.

There are two phases in a CVRA case that is fully litigated. First, the court must determine whether there is racially polarized voting. If the court finds that a CVRA violation exists, the court then determines the appropriate remedy. Trials in CVRA actions often last multiple days and involve testimony of experts and possibly city officials. This results in very high attorneys’ fees.

III. CVRA Case Studies

Faced with a CVRA challenge, many cities have decided to settle with the plaintiffs. A growing number of jurisdictions are voluntarily choosing to change from an at-large election system to a district-based election system prior to receiving a challenge in order to avoid costly litigation. Because of the costs associated with these lawsuits, few cities have fully litigated CVRA cases. As of the date of this release, no jurisdiction has prevailed on the merits of a CVRA action. In some cases that have been litigated, courts have imposed drastic remedies.

In 2012, in Jauregui, et al. v. City of Palmdale, a group of plaintiffs filed an action against the City of Palmdale alleging that its election system violated the CVRA. At trial, the court found for plaintiffs, holding that the city’s at-large election system violated the CVRA. The trial court prohibited Palmdale from conducting any further at-large elections for the city council. The court also set forth the district boundaries to be used. After multiple appeals, the parties settled the action. Palmdale agreed to pay the plaintiffs $4.5 million in settlement of their attorneys’ fees and costs, move elections to coincide with the statewide general election, and divide the city into four districts with a city-wide mayor.

The City of Highland was challenged under the CVRA in 2014. Highland stipulated to liability and took the position that the court should adopt cumulative voting as an appropriate remedy. Under a cumulative voting system, each voter would be allotted the same number of votes as there are seats up for election and may distribute them however he or she chooses. Therefore, voters may distribute their votes among candidates or “plump” all their votes on one candidate. The parties submitted briefing on the issue, and the court held a three-day trial in which expert witnesses for both the plaintiff and Highland testified. The court held that a district-based election system was the appropriate remedy and enjoined the city from holding any future at-large elections. It also mandated that all five council seats be up for election in November of 2016. Subsequently, the parties settled the issue of attorneys’ fees, and Highland paid the plaintiff $1,325,000 in attorneys’ fees and costs. Highland’s own attorneys’ fees and costs totaled approximately $204,000.00.

In 2016, attorney Kevin Shenkman with the law firm of Shenkman & Hughes brought an action against the City of Santa Monica alleging that the city’s at-large election violated the CVRA and the Equal Protection Clause of the California Constitution. In Pico Neighborhood Association, et al. v. City of Santa Monica, Plaintiffs alleged that the at-large system of electing the city’s councilmembers impairs the ability of Latinos to elect candidates of their choice. Latinos constitute 13 percent of Santa Monica’s eligible voters and under 10 percent of its actual voters. Santa Monica presented evidence that Latinos were able to elect candidates of their choice under the at-large system. The City also demonstrated that it was impossible to draw a district where Latinos constitute a majority of the eligible voters. Nonetheless, after a five-week trial in 2018, the court found that the city’s at-large election system was in violation of the CVRA and the Equal Protection Clause. The Santa Monica example demonstrates that even if a protected class is able to elect candidates of its choice in an at-large system and is too small to constitute a majority of a district, that is not sufficient to defeat a CVRA claim. While Santa Monica has appealed the trial court’s decision, the Court of Appeal will likely not issue a decision in the case for a few months.

According to their pending motion for attorneys’ fees, the plaintiffs are seeking $22.3 million in attorneys’ fees and expenses from the City of Santa Monica after prevailing at the trial court. The trial court has yet to rule on plaintiff’s motion. If plaintiffs prevail on appeal, Santa Monica would not only be liable for plaintiffs’ attorneys fees and costs as awarded by the trial court, but also for plaintiffs’ fees and costs incurred in connection with the appeal. The city’s own attorneys’ fees and costs will likely be high as well due to the length of the trial, the costs of retaining experts, and the complexity of the issues.

The constitutionality of the CVRA is currently being challenged in federal court. In Higginson v. Xavier Becerra, et al., the former mayor of the City of Poway filed a federal action against the City of Poway and Attorney General Becerra challenging the constitutionality of the CVRA in U.S. District Court for the Southern District of California. Poway had adopted a by-district elections process in response to a CVRA demand letter. The Mayor alleged that the City’s adopted map violated the equal protection clause. The trial court dismissed the action, and the matter is currently pending on appeal with the Ninth Circuit.

IV. City’s Next Steps

The City has been working diligently to evaluate the claims in the letter and determine an appropriate response. Elections Code Section 10010 provides a safe harbor for cities that choose to voluntarily transition from at-large elections to district-based elections. After a city receives a demand letter, the city has 45 days to assess the claim and adopt a resolution outlining its intent to transition from at-large to district-based elections. During that time, a potential plaintiff cannot bring a CVRA action against the city. Because the City received the letter from Rexroad Law on July 1, 2019, City has until August 15, 2019 to adopt the resolution of intent in order to take advantage of the safe harbor provision. If the City adopts the resolution by August 15, 2019, the City has 90 days from that date to adopt an ordinance establishing district-based elections. During that time, a prospective plaintiff is precluded from initiating a CVRA action.

After adopting the resolution of intention, the City is required to hold two public hearings over a period of no more than 30 days before drawing draft maps. During those hearings, the public is invited to provide input regarding the composition of the districts. After the City’s demographer draws the draft maps, the City must publish at least one draft map and, if members of the governing body of the City will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The City then holds 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 maps and the proposed sequence of elections. The City has to publish the draft maps and sequencing at least seven days before those hearings.

Elections Code 10010 also offers some protection to jurisdictions in terms of exposure to a prospective plaintiff’s attorneys’ fees. If the jurisdiction meets the deadlines outlined above, the prospective plaintiff who sent the demand letter may only recover up to $30,000 in attorneys’ fees and costs from the city.

V. Timing with Regard to Upcoming Municipal Elections

The City contacted the Yolo County Elections Office to determine the applicable deadlines for sending the district boundaries in time for implementation at the March 3, 2020 election. The County stated that it would have to receive the district boundaries before September 12, 2019. The reason is that the Signatures-In-Lieu of Filing Fee Period commences on that date, and the County would need to confirm that the candidates live in the districts they claim to live in.

This does not provide the City with adequate time to adopt the resolution of intention, conduct the required hearings, and adopt a districting ordinance (which requires two readings and becomes effective 30 days after adoption). Under Elections Code Section 10010, the City is entitled to 90 days to conduct hearings and vote on the ordinances if it adopts the resolution of intent by August 15, 2019. Therefore, any decision to transition to districts would not impact the March 3, 2020 election. The first potential district-based election would be in March 2022.

Because districts have to be roughly equal in population, Elections Code Section 21601 requires the adjustment of boundaries of any or all of the council districts following each decennial federal census in order to maintain the population balance. If the City complied with the demand letter and no extension of time were provided, it is possible that district maps would have to be drawn in 2019 or 2020 and then adjusted again based on data from the 2020 Census prior to the March 2022 vote.

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