Originally published in The Sun-Gazette
Threat of litigation led to many cities adopting the district voting system, but ranked choice voting may be better for local democracy
TULARE COUNTY – In California, democracy at its most accessible form—city councils, school boards and water boards—governing bodies whose decisions most directly impact their local constituents have seen sweeping changes in how representatives are elected. Over the last two decades, armed with the broadsword that is the California Voting Rights Act (CVRA) of 2001 civil rights, attorneys and activist groups have crusaded up and down the golden state to bring greater minority voice and representation in local government through district elections. While some swings of the sword have been just, others have left local democracies almost ceasing to function all together, slicing cities into districts and stripping communities of the voice they set out to grant.
Tulare County, a conservative stronghold with a high proportion of Hispanic residents, had many of its cities threatened with litigation in the past decade that have since switched to district elections without going to the voters or against their will. Some cities, like Tulare, have seen Hispanic candidates elected under the district system, where others like Exeter have seen democracy break down as most officials are appointed in lieu rather than democratically elected.
A solution to the clumsy district fix-all hampering the valley’s local democracy may be on the horizon in an increasingly popular election system known as ranked choice voting: a system some experts say is compliant with the CVRA and allows for the greatest voter representation.
LAWSUITS ACROSS THE GOLDEN STATE
Passed under the watch of Governor Gray Davis—one of two American governors ever to be recalled and removed from office—the California Voting Rights Act of 2001 was intended to expand voting rights of minorities whose votes were being diluted in the at-large election system.
Pedro Hernandez, a senior policy coordinator with FairVote—a non-profit, nonpartisan organization aimed at empowering voters and fair representation in democracy—said vote dilution in at-large elections comes from bloc voting.
“In the at-large system you might traditionally see, let’s say three seats are up, so everyone has three votes, and you vote for three candidates and the highest vote getters end up winning,” Hernandez said. “If the largest bloc of voters all vote the same, they can effectively shut out minority representation because the largest group might vote for the same three candidates. That’s the vote dilution part. That’s where you see racially polarized voting.”
Empowerment from the CVRA came in the form of firepower for lawyers to litigate California cities using at-large election systems where voting was allegedly racially polarized, resulting in minority vote dilution. The open-for-interpretation language spurred hundreds of “or else” letters—threats of litigation—and lawsuits brought down upon California cities from legal firms on behalf of voting rights activist groups. One such group, the Southwest Voter Registration Education Project, claims to have “transformed” over 100 jurisdictions using the CVRA.
Listed in the CVRA is the requirement for cities to pay the prevailing plaintiff party all attorney and litigation fees. Kevin Shenkman of Shenkman & Hughes law firm is the Malibu lawyer behind many litigation threats and lawsuits against California cities, including the high-profile cases of Palmdale and Santa Monica.
Contrary to its counterpart cities Lindsay and Woodlake—which remain using at-large election systems in largely Hispanic communities—Exeter is a mostly white community. The town of just over 10,500 was intimidated into a district voting system in 2017, when Shenkman threatened suit by alleging that “voting within Exeter is racially polarized, resulting in minority vote dilution, and therefore Exeter’s at-large elections violate the California Voting Rights Act of 2001.” Shenkman did not respond to a request for an interview with The Sun-Gazette.
In his letter, Shenkman referred to his then-recent win over the city of Palmdale, where the courts forced the city to pay Shenkman and Palmdale voters Juan Jaurequi, Jesse Smith and Nigel Holly $4.5 million plus interest. At the time, no California city had ever won a CVRA litigation case over a plaintiff claiming minority vote dilution. Exeter’s bigger neighbor Visalia had also just forked out legal fees in a similar districts scuffle with plaintiffs.
Exeter’s budget was a concern at the time as well. In 2017, Exeter was projected to lose roughly 22% of its $2.5 million in funds over the next year. Exeter’s empty pockets likely led city officials to an easy decision: the path of least resistance. A one-time settlement fee of up to $30,000 for lawyers to go away included hiring a demographer to draw the city’s district lines, dividing the two-stoplight town into five districts.
DISTRICT DILEMMAS
Exeter saw about a 79% turnout at 4,086 votes cast in the record-breaking Nov. 2020 presidential election. None of those votes were cast for new city council members, however, because all of Exeter’s new council members had been appointed in-lieu three months earlier due to a lack of candidates.
Since Exeter’s switch to districts in 2017, Teresa Boyce is the only city council candidate to be elected by democratic process, after defeating Melanie Morton by 44 votes in 2018. Boyce has since stepped down from the council.
Split up between 5 districts, the Nov. 2020 presidential election turnout in Exeter settled out to about 810 votes per district. Finding qualified candidates to run in a democratic election among the roughly 1,040 registered voters in each of Exeter’s districts has proven near impossible so far. Without democratic elections, low bars like 20 signatures from neighbors make for easy entry into a policy-making position.
Normally, a charter amendment like changing the way elected officials are democratically elected requires a vote from the people. This didn’t happen in the strapped-for-cash city of Exeter, which then-City Manager Randy Groom estimated an election for the one item to cost roughly $20,000 in taxpayer money.
In a previous interview with The Sun-Gazette, Groom, now Visalia’s soon-retiring city manager, said Visalians had the opportunity to vote to move to a district system twice after the city received its “or else” letter, and voted it down both times in favor of at-large elections. District elections were then judicially imposed despite voter preference, with the first district elections beginning in 2016.
Since the switch from at-large to district elections, zero Hispanic candidates have been elected to Visalia City Council. Visalia’s only Hispanic elected official in the last 20 years was Jesus Gamboa, who was the top vote-getter in the 2005 at-large election and was elected by a large margin in 2001 and by four points in 1997 at-large elections. Gamboa served as the city’s mayor.
Four out of five members of Visalia’s current all-white council were elected to their seat at a point in time, but Brian Poochigian is the only sitting council member to have actually been democratically elected in over four years, winning a contested election in 2018.
The same council recently struck down a mechanism for Visalians to hold them accountable, when in January they removed questions from the yearly public opinion survey about the city’s COVID-19 response and enforcement. The council had instructed Visalia PD to take “a position of education and public cooperation over enforcement.” Many of Visalia’s businesses have been openly defiant of state law and public health guidelines for months.
ANOTHER WAY FORWARD
In January as the Tulare City Council slogged through a presentation on the legalities of redistricting—a new task for many jurisdictions who have switched to district elections in the last decade—City Attorney Mario Zamora ran the council through the “dos and don’ts:” split districts into equal populations, seek public input, avoid gerrymandering and create a minority-majority district if possible, without jumping boundary lines to do so – such as drawing two islands split up by another district.
Since its switch to districts in 2012—approved by voters after threat of litigation—Tulare has fared well in terms of minority representation on its council. The city has also found success in holding contested elections in the district format, with the only uncontested election in recent history being district 5 in 2012.
As the presentation went on, Zamora brought another option to the table that could forgo the headache of districts altogether: ranked choice voting (RCV). Growing in popularity and use in California and the country, RCV is an election system that FairVote—an advocate for RVC—boils down to a couple simple concepts: voters are given the option to rank candidates in order of preference (first, second, third, etc.); if a voter’s top choice cannot win, their vote is counted for their next choice.
The mechanism used to implement these concepts is called “instant runoff,” where the candidate with the fewest votes is eliminated, and voters who picked that candidate as their first option will have their vote counted for their next choice, continuing that process until a majority winner emerges.
“The number of votes you need to win depends on the number of seats up for election,” Hernandez said. “If you’re electing three, the candidate needs at least 25% of the votes to guarantee election. 25% plus one, if three people have that no fourth person can have that amount.”
RCV is compliant with the CVRA and the California Constitution, and cities are catching on. San Leandro, Berkeley, San Francisco and Oakland all use RCV within their districts, with Albany, Calif. becoming the first city to institute RCV in an at-large setting, adopted by voters in 2020. Palm Desert adopted RCV in 2020 as part of a CVRA settlement.
Zamora said when it comes to Tulare County, RCV’s biggest hurdle is getting people educated on what it is and embracing change.
“The biggest thing is not necessarily a con to the system, but it’s not familiar—people need to understand it,” Zamora said. “I think it’s just a superior system in almost every way…if you start talking about these percentages it gets confusing, but if you just break it down to, ‘I want a diet Pepsi, and if they don’t have diet Pepsi I want a Diet Coke,’ it’s as simple as that.”
Zamora said he sees at-large RCV as a potential solution to a number of issues, from officials being appointed in lieu to “voting for the lesser of two evils” or not voting because someone thinks their vote will be wasted, more so seen in presidential elections.
“Especially in California, you get a lot of conservative folks who say, ‘it’s a wasted vote in California to vote for a conservative candidate, so I’m just not going to vote,’” Zamora said. “[With RCV] you can feel confident still participating and having a say about things.”
Zamora’s note scratches at the core idea of what FairVote is all about. Hernandez said his organization sees ranked choice voting as a solution, “a system where candidates are looking to get a second choice vote from a voter who might support a different candidate, and actually have more stability or at least facilitate rules where candidates are encouraged to engage in a debate of ideas and values rather than just attacking each other.
“I think that it is worth really looking at what the CVRA wants,” Hernandez said, “it wants to make sure that people are able to elect candidates of choice. If cities are exploring that, and are exploring ranked choice voting as well, I think that’s a healthy thing.”
The language used in the CVRA is for a minority population “to elect candidates of its choice or otherwise influence the outcome of an election,” hotly contested words in the city of Santa Monica’s legal battle against Shenkman, who sent the city the infamous “or else” letter in 2016. Santa Monica fought back.
The four-year legal battle that ensued led to the first major victory for a city in a CVRA lawsuit, when the California Court of Appeal, 2nd District overturned the trial court decision in Pico Neighborhood Association and Maria Loya v. City of Santa Monica, stating that the city had not violated the CVRA or the California Constitution. Shenkman and the plaintiffs’ lawyers, who were seeking to recover at least $22 million in attorneys’ fees and costs from the city, would not get a dime.
The city was able to show that Hispanic voters—13.6% of Santa Monica’s voting age population—were able to get their preferred city council candidate elected at least 70% of the time between 2002 and 2016 in at-large elections, in addition to Hispanic-surnamed candidates who were preferred by Hispanic voters winning over 80% of the time in at-large elections for school district, community college and rent control board seats, elections the plaintiffs claimed involved racially polarized voting.
Without the creation of a majority-minority district, enacting a district election system that prevents minorities from organizing across district boundaries actually inhibits the ability to elect candidates of their choice to a position of power, opposite of what the CVRA is intended for. The CVRA actually prohibits the use of districts “in a manner that impairs the ability of a protected class to elect candidates of its choice as a result of the dilution or the abridgment of the rights of voters who are members of a protected class.” The problem is, many of these cities are not actually going to court for simply the fear of going bankrupt in the process, which in cases like Exeter, has resulted in the breakdown of democracy.
However, the CVRA does not require plaintiffs to actually prove that a minority group is sufficiently large and geographically compact to substantiate a majority-minority district, nor does it require proof of intent on the part of voters or elected officials to discriminate against a minority. The water remains muddy around what constitutes a legitimate CVRA case due in part to the lack of cases that have actually seen the light of day in court, and Santa Monica isn’t out of it just yet.
In August 2020, plaintiffs against Santa Monica filed a petition for review by the California Supreme Court. Following a wave of letters in support of the plaintiff’s request for review from a small army of government and civil rights organizations—among them the Dolores Huerta Foundation, multiple California legislative caucuses, the California Secretary of State and FairVote—the court granted petition, and ordered the Court of Appeal’s opinion on its decision in favor of Santa Monica depublished. The plaintiffs briefed the court Dec. 21, 2020, and the rest will play out in the days to come.
The California Supreme Court ordered parties to brief the issue: “What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?” A question perhaps better answered before hundreds of threat letters were issued, millions of dollars paid to lawyers and local democracies altered, some broken.
Ben Irwin 