CC 2019-10-22_11b Calif Voting Rights Act District ElectionsMEMORANDUM
TO: CITY COUNCIL
FROM: HEATHER K. WHITHAM, CITY ATTORNEY
KELLY WETMORE, DIRECTOR OF LEGISLATIVE AND INFORMATION
SERVICES/CITY CLERK
SUBJECT: CONSIDERATION OF ADOPTION OF A RESOLUTION DECLARING
THE COUNCIL’S INTENT TO TRANSITION FROM AT-LARGE TO A
DISTRICT-BASED ELECTION SYSTEM BY NOVEMBER 2022 AND
AUTHORIZING THE CITY MANAGER TO EXECUTE A SETTLEMENT
AGREEMENT WITH MARIA MINICUCCI
DATE: OCTOBER 22, 2019
SUMMARY OF ACTION:
Adopt a Resolution declaring the Council’s intent to transition from at-large to a district-
based election system by November 2022 and enter into a settlement agreement with
Maria Minicucci.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
There is no cost to adopting this Resolution. The approval of the Settlement Agreement
will involve a cost of $31,211 this fiscal year. There will also be a cost of approximately
$25,000 to hire a demographer to draft the district maps, but this cost would not be
expended until 2021 under the recommended schedule.
RECOMMENDATION:
It is recommended that the Council: 1) adopt a Resolution declaring the Council’s
intent to transition from at-large to a district-based election system before the
November 2022 regular election; 2) approve and authorize the City Manager to
execute a Settlement Agreement with Maria Miniccuci; and 3) appropriate $31,211
from the unrestricted General Fund balance.
BACKGROUND:
The Mayor and Arroyo Grande City Council members are currently elected in at-large
elections where each of the four council members along with the mayor are elected by
the registered voters of the entire City.
On October 2, 2019, the City received a “Notice of Violation of California Voting Rights
Act” and a report from attorney Robert Goodman, brought on behalf of Maria Minicucci,
asserting that the City’s at-large method of conducting elections may violate the California
Voting Rights Act (the “Act”) and threatening litigation if the City doesn’t voluntarily
transition to a district-based election system.
Item 11.b. - Page 1
CITY COUNCIL
CONSIDERATION OF ADOPTION OF A RESOLUTION DECLARING THE COUNCIL’S
INTENT TO TRANSITION FROM AT-LARGE TO A DISTRICT-BASED ELECTION SYSTEM BY
NOVEMBER 2022 AND AUTHORIZING THE CITY MANAGER TO EXECUTE A SETTLEMENT
AGREEMENT WITH MARIA MINICUCCI
PAGE 2
The Act prohibits an at-large system of election that impairs the ability of a protected class
to elect candidates of its choice or its ability to influence the outcome of an election. A
plaintiff need only prove the existence of “racially polarized voting” to establish liability
under the Act. Proof of intent on the part of voters or elected officials to discriminate
against a protected class is not required. As a result of the Act, cities, school districts and
other public agencies throughout the State have increasingly been facing legal challenges
to their at-large systems of electing legislative bodies. Almost all have settled claims out
of court by agreeing to voluntarily change to district-based elections. Those that have
defended Act challenges in the courts have ultimately either voluntarily adopted, or have
been forced to adopt, district-based elections. While our office doesn’t have current data,
a December 2017 report noted that at that time at least 80 California cities had
transitioned, or were in the process of transitioning, from at-large to district-based
elections as a result of the Act. In addition, at that time at least 160 school districts, 27
community college districts, and 8 water or special districts had done so or were doing
so. These numbers are significantly higher today. In San Luis Obispo County, the cities
of Paso Robles and Grover Beach are transitioning to district-based elections as a result
of threats of litigation under the Act.
The Act amended Elections Code Section 10010 in an attempt to provide a “safe harbor”
from Act litigation for agencies that choose to voluntarily transition to a district-based
election system after receiving a threat of litigation. If an entity receives a demand letter,
the entity is given 45 days of protection from litigation to assess the situation. If within 45
days, the agency adopts a resolution declaring its intent to transition from at-large to
district-based elections, outlining specific steps to be undertaken to facilitate the
transition, and estimating a time frame for action, then a potential plaintiff is prohibited
from filing an action for an additional 90-day period. Under the Act, the public entity’s
liability is capped at $30,000 1 in reimbursement costs to the prospective plaintiff if it
follows the process outlined in the Act.
ANALYSIS OF ISSUES:
The Census Bureau website shows that in the 2010 Census Arroyo Grande’s White alone
population in Arroyo Grande was approximately 85%, the Hispanic or Latino alone
population was approximately 16%, the Asian alone population was approximately 3%,
the Black or African American alone population was .90%, the American Indian and
Alaska native alone were .72%, the Native Hawaiian and other Pacific native alone were
.08%, the “some other race alone” population was 4.96% and two or more races
population was 4.61%. The Census Bureau’s Population Estimate Program for Arroyo
Grande has a 2018 estimate of a total population of approximately 74% White alone, 17%
Hispanic or Latino alone, 6% Asian alone, .7% Black or African American alone, 1.3%
American Indian and Alaska native alone, .5% Native Hawaiian and other Pacific native
alone, and 4.2% two or more races.
1 Adjusted annually for inflation.
Item 11.b. - Page 2
CITY COUNCIL
CONSIDERATION OF ADOPTION OF A RESOLUTION DECLARING THE COUNCIL’S
INTENT TO TRANSITION FROM AT-LARGE TO A DISTRICT-BASED ELECTION SYSTEM BY
NOVEMBER 2022 AND AUTHORIZING THE CITY MANAGER TO EXECUTE A SETTLEMENT
AGREEMENT WITH MARIA MINICUCCI
PAGE 3
The Act’s broad standards have made racially diverse cities and agencies with few
minorities that hold at-large elections highly susceptible to challenges. Switching to
district-based elections in jurisdictions that have smaller minority concentrations generally
does not have an effect on the outcome of elections as far as electing more minority
representation. Not having retained a demographer to analyze the City’s population, there
is no clear evidence that the City’s at-large electoral system is racially polarized or violates
the Act. However, as illustrated by recent litigation involving the City of Santa Monica,
even a community with a small minority population and no outward history of polarized
voting can be sued and lose. Santa Monica’s demographics are similar to Arroyo
Grande’s. Latinos constitute approximately 13% of the citizen voting age population and
about 16% of the total population. Santa Monica also has a history of electing minorities,
including Latinos, to a variety of local positions. In fact, at the time the lawsuit was filed,
Santa Monica had a Latino mayor. Despite these facts, the court ruled in favor of the
plaintiffs. The city has filed an appeal. If Santa Monica loses on appeal, it will be required
to pay the plaintiff’s lawyers substantial attorney’s fees and expert costs, in addition to the
costs they have incurred for their defense.
Legal challenges to at-large voting systems are easy to bring, costly to defend, and
include risks of a very significant attorney fee award. No public entity has succeeded in
court when challenged under the Act. Awards to plaintiff’s attorneys and expert witnesses
have reportedly reached close to $5 million. The City of Palmdale was ordered to pay
plaintiff’s attorney’s fees in excess of $4,600,000 in its unsuccessful attempt to defend
against a lawsuit brought under the Act. The City of Modesto is reported to have paid $1.7
million to its own attorneys and $3 million to plaintiff’s attorneys.
Rather than challenge Mr. Goodman’s assertions, staff recommends the City adopt a
Resolution declaring its intent to transition from at-large to district based elections by
November 2022. This will cap Ms. Minicucci’s attorney’s fees and demographic costs
associated with preparation of the Notice of Violation of California Voting Rights Act and
report at no more than $31,211. It should be noted that under the Act, the City Council
has the right to determine whether to have 5 districts or 4 districts with a mayor elected
citywide (an “elective mayor”), pursuant to Government Code section 34886. The
Resolution of Intention specifies transitioning to a 4 district election system with an
elective mayor.
While the Act requires public entities complying with Elections Code Section 10010 and
agreeing to transition to district-based elections to do so in an expedited fashion, Mr.
Goodman has agreed to allow the City to defer implementation of the district-based
election system until the November 2022 election if the City is willing to enter into a
Settlement Agreement to that effect. Requiring district-based elections in November 2020
would necessitate the time and significant expense of going through the districting
process twice - once for November 2020 (using 2010 census data) and again for
November 2022 after the decennial 2020 census is complete. In addition, the San Luis
Item 11.b. - Page 3
CITY COUNCIL
CONSIDERATION OF ADOPTION OF A RESOLUTION DECLARING THE COUNCIL’S
INTENT TO TRANSITION FROM AT-LARGE TO A DISTRICT-BASED ELECTION SYSTEM BY
NOVEMBER 2022 AND AUTHORIZING THE CITY MANAGER TO EXECUTE A SETTLEMENT
AGREEMENT WITH MARIA MINICUCCI
PAGE 4
Obispo County Clerk has advised that it is their desire to conduct both the Primary
Election in March 2020 and the General Election in 2020 with the same precinct
consolidations and polling place assignments to prevent voter confusion and that
changing polls between elections is not advised. Further, if the City were required to go
through the districting process twice, the County would charge the City twice within a
couple of years for the work of conforming to the new districts. Therefore, staff
recommends entering into the Settlement Agreement in order to allow for implementation
of district-based elections by November 2022.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1.Adopt the Resolution declaring the City’s intention to transition from at-large to
district-based elections by November 2022 and enter into a Settlement
Agreement with Maria Miniccuci; or
2.Direct staff to return with a Resolution declaring the City’s intention to transition
from at-large to district-based elections by November 2020; or
3.Provide other direction to staff
ADVANTAGES:
Adopting a Resolution declaring the City’s intent to transition from at-large to district-
based elections with an elective mayor and entering into a Settlement Agreement with
Ms. Minicucci will avert having to defend a potentially very expensive Voting Rights Act
lawsuit. Ms. Minicucci’s attorney’s fees and demographic costs related to preparation of
the Notice of Violation of California Voting Rights Act will be capped at an amount not to
exceed $31,211.
DISADVANTAGES:
Adopting a Resolution declaring the City’s intent to transition from at-large to district-
based elections with an elective mayor and entering into a Settlement Agreement with
Mr. Goodman will require the City to undertake the procedures identified in Elections
Code Section 10010 to transition to district-wide elections, which will require the City to
retain a demographer and require significant staff time. In addition, the City will be
required to pay Ms. Minicucci $31,211 in attorney’s fees.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
ATTACHMENTS:
1.Notice of Violation of California Voting Rights Act
Item 11.b. - Page 4
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ARROYO DECLARING ITS INTENTION TO TRANSITION
FROM AT -LARGE TO DISTRICT-BASED ELECTIONS BY
NOVEMBER 2022
WHEREAS, members of the City Council of the City of Arroyo Grande (“City”) are
currently elected in at-large elections in which each of the four Council members along
with the Mayor are elected through a City-wide vote; and
WHEREAS, California Government Code Section 34886 permits the legislative body of
a city to adopt an ordinance that requires members of the legislative body to be elected
by district with an elective mayor, without being required to submit the ordinance to the
voters for approval; and
WHEREAS, on October 2, 2019, the City received a letter entitled Notice of Violation of
California Voting Rights Act (“Notice”) from attorney Robert Goodman on behalf of Maria
Minicucci (“Prospective Plaintiff”), asserting that the City’s method of conducting elections
may violate the California Voting Rights Act (“Act”) and threatening litigation if the City
doesn’t voluntarily transition to a district-based election system; and
WHEREAS, a violation of the Act may be established if it is shown that racially polarized
voting occurs in elections in the jurisdiction; and
WHEREAS, the Act provides a means for prospective plaintiffs to allege racially polarized
voting combined with an at-large voting system impair the ability of a protected class of
voters to elect candidates of its choice or to influence the outcome of an election and to
seek a change from a jurisdiction’s at-large election system to a district-based system;
and
WHEREAS, the Act allows prospective plaintiffs to file a lawsuit against the City if the City
does not adopt a resolution of intent to transition to district-based elections within 45 days
of the Notice; and
WHEREAS, Prospective Plaintiff offered to consider a settlement agreement whereby the
City would not be required to institute district-based elections until the November 2022
regular election in order to allow 2020 U.S. Census data to be used in drawing district
boundaries; and
WHEREAS, the City denies the assertion that its at-large system violates the Act or any
other law and asserts that the City’s election system is legal in all respects; and
WHEREAS, the City Council has concluded that the public interest would best be served
by transitioning to a district-based election system with an elective mayor due to the
Item 11.b. - Page 5
RESOLUTION NO.
PAGE 2
inherent uncertainties and costs associated with defending the City’s at-large election
system.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Arroyo Grande
as follows:
1.The above recitals are true and correct and incorporated herein by this reference.
2.Before the November 2022 regular election, the City Council will consider adoption
of an ordinance to institute a district-based election system with an elective mayor
as authorized under Government Code Section 34886.
3.Prior to considering an ordinance to establish district boundaries for a district-
based election system with an elective mayor, the City will follow the requirements
pursuant to Elections Code Section 10010 including:
a.Hiring a qualified consultant to provide demographic services and assist in the
preparation of proposed district maps;
b.Conduct public outreach, including to non-English speaking communities, to
explain the districting process and to encourage public participation;
c.Before drawing a draft map or maps of the proposed division boundaries, hold
at least two public hearings at which the public is invited to provide input
regarding the composition of the districts and to consider district boundaries;
d.After drawing a draft map or maps, publish the draft map(s) and the potential
sequence of the district elections and hold at least two public hearings at which
the public is invited to provide input regarding the content of the draft map or
maps and the proposed sequence of elections; and
e.Hold a public hearing at which the City Council will consider and adopt an
ordinance establishing district-based elections with an elective mayor,
including a district boundary map and the sequence of the district elections.
4.This Resolution shall take effect upon its adoption.
5.The City Manager is hereby authorized to enter into a professional services
agreement as necessary with a consultant qualified to provide demographic
services to the City.
On motion of Council Member , seconded by Council Member , and
on the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
The foregoing Resolution was passed and adopted this 22nd day of October, 2019.
Item 11.b. - Page 6
RESOLUTION NO.
PAGE 3
_________________________________
CAREN RAY RUSSOM, MAYOR
ATTEST:
_________________________________
KELLY WETMORE, CITY CLERK
APPROVED AS TO CONTENT:
_________________________________
JAMES A. BERGMAN, CITY MANAGER
APPROVED AS TO FORM:
_________________________________
HEATHER WHITHAM, CITY ATTORNEY
Item 11.b. - Page 7
CONDITIONAL SETTLEMENT AGREEMENT AND RELEASE
This CONDITIONAL SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is
entered into on this ___ day of October, 2019 ("Effective Date") by and between the CITY OF
ARROYO GRANDE, a municipal corporation organized and existing under the laws of the State of
California ("CITY"), and MARIA MINICUCCI, a resident of the City ("Prospective Plaintiff"). The
above parties are referred to herein individually as "Party" and collectively as "Parties."
RECITALS
A. The ARROYO GRANDE CITY COUNCIL ("Council") is keenly aware of the importance of
maintaining a fair election system. The Council has always strived to listen to all voices in the
community and represent the interests of the entire community. Currently, members of the
Council are elected pursuant to an "at-large" election system in which registered voters of the
entire jurisdiction elect candidates to the Council.
B. On October 2, 2019, the City received a Notice of Violation ("Notice") of the California
Voting Rights Act ("Act") from Prospective Plaintiff, dated October 1, 2019, alleging that the
City's at-large system of electing City Council members violates the Act and threatening suit
unless the City transitions to a district-based electoral system, an election method in which a
candidate must reside within an election district or "trustee area" that is a divisible part of the
City and is elected only by voters residing within that election district.
C. The City denies that the City's at-large electoral system violates the Act. Nevertheless, in
recognition that litigation involves significant costs and uncertainty, the City desires to enter
into this Agreement.
D. The Parties mutually desire to delay the institution of district-based elections until 2022 so that
the trustee-area boundaries may be drawn based on 2020 federal decennial Census data, which
will not become available until 2021.
E. The Parties now wish conditionally to resolve and settle the Notice and all attendant and
potential litigation arising therefrom.
NOW, THEREFORE, in consideration of the mutual covenants and agreements described
below, and for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
1. Obligations of Parties
A. At or before its regular meeting on October 22, 2019, the City will consider approval of a
resolution of intent to institute a district-based election system for City Council elections by
the November 2022 regular election.1
B. Provided that the City adopts the resolution described in subsection A, Prospective Plaintiff
shall not bring suit against the City prior to November 9, 2022 for any cause of action related
to the City's electoral system, including, but not limited to, suit seeking the implementation of
district-based elections or claims related to or arising from the Notice.
1 The November 2022 regular election will occur on November 8, 2022.
Item 11.b. - Page 8
C. Provided that the City adopts the resolution described in subsection A, within 30 days of such
adoption, the City will remit a payment of $31,211.00 (thirty one thousand two hundred eleven
dollars) to Prospective Plaintiff as reimbursement of its costs incurred for the work product to
support the Notice in fulfillment of the requirement to reimburse Prospective Plaintiff's
reasonable costs pursuant to Elections Code section 10010(f). The check will be made payable
to Prospective Plaintiff's attorney-of-record, Robert Goodman, to his trust account, Robert
Goodman Trust Account. Pursuant to Elections Code section 10010(f)(1), Prospective
Plaintiff has made a demand for reimbursement and staff has substantiated that the
documentation provided by Prospective Plaintiff represents the demography and legal costs
incurred by Prospective Plaintiff supporting her Notice.
2. Condition Precedent
Prospective Plaintiff acknowledges, understands and agrees that the City's passing of the
resolution described in Section 1 is an express condition precedent to the consummation of this
Agreement and the covenants, conditions and agreements contained herein. In the event that the
resolution is not approved as set forth in Section 1, then this Agreement shall be null and void and
shall be of no further force and effect. In such event, neither this Agreement, nor any of its terms
or provisions, shall be admissible in any action or proceeding initiated by Prospective Plaintiff for
any purpose.
Further, the Prospective Plaintiff recognizes and acknowledges that the City is under no obligation
to pass the resolution and that the City reserves its discretion and the full measure of its powers to
evaluate the resolution in accordance with applicable procedures, standards and requirements. It is
understood and agreed that this Agreement shall not be construed in any fashion as an advance
determination and does not provide the Prospective Plaintiff with any expectation as to the
outcome of the City's decision on the resolution. The City's lack of approval or inaction on the
resolution will not constitute a default of this Agreement, but instead will constitute a terminating
event of this Agreement.
3. Admissibility of Agreement
If the City does not institute district-based elections for City Council elections by the November
2022 regular election, this Agreement shall not be construed as an admission by the City that
such failure to act is unreasonable or unlawful under the Elections Code. In addition, this
Agreement may not be introduced into or be admissible in any judicial proceeding other than a
judicial proceeding to enforce the terms of this Agreement.
4. Release
A. Subject to the performance of the Parties' obligations in this Agreement, the Parties hereby fully
and finally waive, release, and permanently discharge each other (and their respective officers,
employees, agents, representatives and attorneys) (the "Releasees"), from any and all past,
present, or future matters, claims, demands, obligations, liens, actions or causes of action, suits
in law or equity, or claims for damages or injuries, whether known or unknown, which they now
own, hold or claim to have or at any time heretofore have owned, held or claimed to have held
against each other by reason of any matter or thing alleged or referred to, or in any way
connected with, arising out of or in any way relating to the Notice (collectively, the "Released
Claims"). In connection with the release of the Released Claims, the Parties waive any and all
rights that they may have under the provisions of section 1542 of the California Civil Code,
which states as follows:
Item 11.b. - Page 9
A general release does not extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the release, which if known by him or her
must have materially affected his or her settlement with the debtor.
In the event that any waiver of the provisions of Section 1542 of the California Code
provided for in this Agreement shall be judicially determined to be invalid, voidable or
unenforceable, for any reason, such waiver to that extent shall be severable from the
remaining provisions of this Agreement, and the invalidity, voidability or unenforceability
of the waiver shall not affect the validity, effect, enforceability or interpretation of the
remaining provisions of this Agreement.
B. The Parties understand and acknowledge that the foregoing release extends to any claims or
damages, without limitation, arising out of the Released Claims that may exist on the date of the
execution of this Agreement, but which the Parties do not know to exist, which, if known,
would have materially affected their decision to execute this Agreement, regardless of whether
their lack of knowledge is a result of ignorance, oversight, error, negligence or any other cause.
C. Each Party acknowledges and agrees that this Agreement is a compromise and settlement of
their disputes and differences, and is not an admission of liability or wrongdoing by any Party.
D. Except as provided in Section 1.C. of this Agreement, each of the Parties waives any and all
claims for the recovery of any costs, expenses, or fees, including attorney fees, associated with
the matters and claims released in this Agreement.
5. Representations and Warranties
A. Prospective Plaintiff hereby represents and warrants to the City, as of the Effective Date, as
follows:
i. She has not heretofore assigned or transferred, or purported to assign or transfer, to any party
not named herein any Released Claim, or any part or portion thereof.
ii. To the best of her knowledge, there are no legal actions, suits or similar proceedings
pending and served, or threatened in writing against the Prospective Plaintiff that would
adversely affect her ability to consummate the transactions contemplated in this
Agreement. To the best of her knowledge, Prospective Plaintiff is not aware of any
existing claims nor of any facts that might give rise to any claims of any type or nature
against the City, whether asserted or not, that have not been fully released and discharged
by the release set forth in this Agreement.
iii. Prospective Plaintiff has freely entered into this Agreement and is not entering into this
Agreement because of any duress, fear, or undue influence; this Agreement is being
entered into in good faith.
iv. Prospective Plaintiff has made such investigation of the facts pertaining to this Agreement
as she deems necessary.
v. Prospective Plaintiff has, prior to the execution of this Agreement, obtained the advice of
independent legal counsel of her own selection regarding the substance of this Agreement
and the claims released herein.
Item 11.b. - Page 10
B. In executing this Agreement, Prospective Plaintiff acknowledges, represents, and warrants to
the City that she has not relied upon any statement or representation of any City officer, agent,
employee, representative, or attorney regarding any facts not expressly set forth within this
Agreement. In entering into this Agreement, Prospective Plaintiff assumes the risk of any
misrepresentations, concealment or mistake, whether or not she should subsequently discover
or assert for any reason that any fact relied upon by her in entering into this Agreement was
untrue, or that any fact was concealed from her, or that her understanding of the facts or of the
law was incorrect or incomplete.
C. The representations and warranties of each of the Parties set forth in this Section and
elsewhere in this Agreement will survive the execution and delivery of this Agreement and are
a material part of the consideration to the City in entering into this Agreement.
6. Interpretation
A. The Parties have cooperated in the drafting and preparation of this Agreement and, in any
construction or interpretation to be made of this Agreement, the same shall not be construed
against any Party. This Agreement is the product of bargained for and arm's length
negotiations between the Parties and her counsel. This Agreement is the joint product of the
Parties.
B. This Agreement is an integrated contract and sets forth the entire agreement between the
Parties with respect to the subject matter contained herein. All agreements, covenants,
representations and warranties, express or implied, oral or written, of the Parties with regard to
such subject matter are contained in this Agreement. No other agreements, covenants,
representations or warranties, express or implied, oral or written, have been made or relied on
by either Party.
C. This Agreement may not be changed, modified or amended except by written instrument
specifying that it amends such agreement and signed by both Parties. No waiver of any
provision of this Agreement shall be deemed or shall constitute a waiver of any other
provision whether or not similar, nor shall any waiver be deemed a continuing waiver; and no
waiver shall be implied from delay or be binding unless executed in writing by the party
making the waiver.
D. All of the covenants, releases and other provisions herein contained in favor of the persons and
entities released are made for the express benefit of each and all of the said persons and
entities, each of which has the right to enforce such provisions.
E. This Agreement shall be binding upon and inure to the benefit of each of the Parties, and her
respective representatives, officers, employees, agents, heirs, devisees, successors and
assigns.
7. Further Cooperation
Each Party shall perform any further acts and execute and deliver any further documents that
may be reasonably necessary or appropriate to carry out the provisions and intent of this
Agreement. Except as expressly stated otherwise in this Agreement, actions required of the
Parties or any of them will not be unreasonably withheld or delayed, and approval or disapproval
will be given within the time set forth in this Agreement, or, if no time is given, within a
reasonable time. Time will be of the essence of actions required of any of the Parties.
Item 11.b. - Page 11
8. No Third Party Beneficiaries
Nothing in this Agreement is intended to benefit any third party or create a third party beneficiary.
This Agreement will not be enforceable by any person not a Party to this Agreement.
9. Enforced Delay (Force Majeure)
A. Performance by either Party shall not be deemed to be in default where delays or defaults are
due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, acts of terrorism,
epidemic, quarantine, casualties, acts of God, litigation, governmental restrictions imposed or
mandated by governmental entities, enactment of conflicting state or federal laws or
regulations, or other similar circumstances beyond the reasonable control of the Parties and
which substantially interferes with the ability of a Party to perform its obligations under this
Agreement.
B. An extension of time for any such cause (a "Force Majeure Delay") shall be for the period of
the enforced delay and shall commence to run from the time of the commencement of the
cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30)
days of knowledge of the commencement of the cause. Notwithstanding the foregoing, none
of the foregoing events shall constitute a Force Majeure Delay unless and until the Party
claiming such delay and interference delivers to the other Party written notice describing the
event, its cause, when and how such Party obtained knowledge, the date the event commenced,
and the estimated delay resulting therefrom. Either Party claiming a Force Majeure Delay
shall deliver such written notice within thirty (30) days after it obtains actual knowledge of the
event. The time for performance will be extended for such period of time as the cause of such
delay exists but in any event not longer than for such period of time.
10. Governing Law; Venue
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
California, without regard to any otherwise applicable principles of conflicts of laws. Any action
arising out of this Agreement must be commenced in the state courts of the State of California,
County of San Luis Obispo, and each Party hereby consents to the jurisdiction of the above courts
in any such action and to venue in the State of California, County of County of San Luis Obispo,
and agrees that such courts have personal jurisdiction over each of them.
11. Counterparts
This Agreement may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original, and such counterparts together shall constitute one and the same
instrument.
[Remainder of page left intentionally blank.]
Item 11.b. - Page 12
12. Effectiveness
This Agreement shall become effective immediately following execution by each of the Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth below
(“Date of Execution”).
PROSPECTIVE PLAINTIFF:
Maria Minicucci
Date:
CITY:
CITY OF ARROYO GRANDE
By:
James A. Bergman, City Manager
Date:
APPROVED AS TO FORM AND
CONTENT: Attorneys for Prospective Plaintiff:
Robert Goodman
Date:
APPROVED AS TO FORM AND CONTENT:
City Attorney:
Heather K. Whitham
Date:
Item 11.b. - Page 13
ATTACHMENT 1
Item 11.b. - Page 14
..
ATTORNEY AT LAW
1114 STATE STREET, SUITE 312
SANTA BARBARA, CALIFORNIA 93101
TELEPHONE (805) 965-9869
FACSIMILE (805) 965-8669
October 1, 2019
Ms. Kelly Wetmore, City Clerk
City of Arroyo Grande
300 E. Branch Street
Arroyo Grande, CA 93420
By certified mail
Re: Notice of Violation of California Voting Rights Act
Dear Ms. Wetmore:
On behalf of Maria Minicucci, a member of a protected class and a registered
voter residing in the City of Arroyo Grande, this letter and the enclosed report are to
assert that the City of Arroyo Grande's method of conducting elections may violate the
California Voting Rights Act.
Pmsuant to California law, the Arroyo Grande City Council now has 45 days
from receipt of this letter to adopt a resolution outlining its intention to transition from at-
large to district elections, specifying specific steps it will take to facilitate this transition,
and estimating the time-frame for this transition. If the City Council does not adopt a
resolution to this effect within 45 days from the receipt of this letter, then a legal action
will be commenced in San Luis Obispo County Superior Court to require the City of
Arroyo Grande to institute district elections pmsuant to the California Voting Rights
Act.
District elections are sweeping California, as described in the enclosed report. As
far as this office is aware, no government agency in California has successfully defended
a complaint alleging violation of the California Voting Rights Act. For this reason, we
recommend a collaborative settlement with the City of Arroyo Grande that would cap
costs and enable more participation by the City Council in the transition to district
elections than would be the case through a court action.
As described in the enclosed report, advantages of a settlement agreement would
include that implementation of district elections could be deferred until the November
2022 election. This approach has proved successful in a number of other government
jurisdictions in California.
Item 11.b. - Page 15
•
Letter to Kelly Wetmore
October 2019
Page2
Essentially, a difficulty of requiring district elections in November 2020 is that
this would necessitate the time and expense of two districting processes--one for
November 2020 (using 2010 census data), and a new process for November 2022 after
the decennial 2020 census. Government jurisdictions elsewhere have asked for a process
whereby these costs in time and money could be incurred only once through
commencement of district elections in November 2022. A settlement agreement can
accomplish this goal.
In either case--whether the City of Arroyo Grande would seek implementation of
district elections in November 2020 or enter into a settlement agreement for
implementation in November 2022--reimbursement costs are capped at $30,000, so there
would be no difference to the City in this respect. An additional benefit of a pre-
litigation settlement would be that current city councilmembers in terms that commenced
in 2016 could run for election in 2020 under existing electoral arrangements.
As you are aware, a number of other government jurisdictions in San Luis Obispo
County--including the City of Paso Robles, Paso Robles Joint Unified School District,
City of Grover Beach, and San Luis Coastal Unified School District--as well as elsewhere
in the state, have recently decided to institute district elections. We believe the City of
Arroyo Grande will be an even better and more representative city with district elections,
as well as in compliance with state law.
Thank you for your consideration.
cc: James Bergman, City Manager
Mayor Carrie Ray Russom
Councilmember Kristen Barneich
Councilmember Lan George
Councilmember Jimmy Paulding
Councilmember Keith Storton
Heather Whitham, City Attorney
Sincerely yours,
~~~,~~
Robert Goodman
encl: "Abridgment of Voting Rights and Racially Polarized Voting in the City of
Arroyo Grande"
Item 11.b. - Page 16
Abridgment of
Voting Rights and
Racially Polarized
Voting in the
City of
Arroyo Grande
Ca liforn ia Voti n g Ri ghts Proj ect
Se ptember 2019
Item 11.b. - Page 17
Contents
Introduction . . . . . . • . . . . . . . . . . . . . . . . . . 3
1. United States Voting Rights Act . . . . . . . 5
2. California Voting Rights Act . . . . . . . . . . 6
3. Abridgment of Voting Rights
and Racially Polarized Voting
in the City of Arroyo Grande . . . . . . . . . 9
4. Methods of Instituting District Elections
in the City of Arroyo Grande. . . . . . . . . 20
5. Advantages of a
Pre-Litigation Settlement . . . . . . . . . . . . 22
6. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . 24
7. Benefits of District Elections . . . . . . . . . 26
Conclusion . . . . .. . . . . . . . . . . . . . . . . . . . . 28
Endnotes ..........................•. 29
Exhibits . . . . . . . . . . . .. . . . . • . . . . . . . . . . . . 30
2
Item 11.b. - Page 18
Abridgment of Voting Rights and Racially
Polarized Voting in the City of Arroyo Grande
Introduction
There is a very strong case for establishing district elections in the City of
Arroyo Grande. According to the United States Census Bureau America
Community Survey estimate for 2017, the city is slightly more than 30 percent
nonwhite, of whom more than half are Hispanic or Latino. Since the year 2000,
however. members of protected classes have apparently not been any of the
candidates for election to the City Council, have not received any votes, and
have not been elected to the City Council. As a result of their proportion of the
population, Latinos have been the most underrepresented.
Not only is Arroyo Grande a diverse community, it is becoming more
diverse. Both data from the city and from Arroyo Grande public schools show that
Arroyo Grande is increasingly diverse.
Many government jurisdictions in San Luis Obispo County utilize district
elections, including government jurisdictions that have instituted district elections
in recent years as a result of concerns with respect to the California Voting Rights
Act. There are many cases of racially polarized voting in the City of Arroyo
Grande on state and local ballot measures. There are marked differences
between whites and Latinos in the City of Arroyo Grande with respect to
socioeconomic characteristics pertaining to employment, health, and education.
Abridgment of voting rights and racially polarized voting characterize
candidate elections and other electoral choices in the City of Arroyo Grande. This
is reflected both in the deficit of protected class candidates who have sought
election and been elected to the Arroyo Grande City Council and in other
electoral choices in Arroyo Grande, both within the city and of government
jurisdictions including the City of Arroyo Grande.
The United States Voting Rights Act and, especially, the California Voting
Rights Act provide strong protections for members of protected classes to
challenge at-large forms of election to government bodies in court and to replace
them with district elections. Pursuant to the California Voting Rights Act: "An at-
large method of election may not be imposed or applied in a manner that impairs
3
Item 11.b. - Page 19
the ability of a protected class to elect candidates of its choice or its ability to
influence the outcome of an election, as a result of the dilution or the abridgment
of the rights of voters who are members of a protected class" (Sec. 14027).
To date, no government jurisdiction in California has prevailed in a legal
challenge to its electoral system on the basis of the California Voting Rights Act.1
The current, at-large method of City Council elections in the City of Arroyo
Grande impairs the ability of a protected class to elect candidates of its choice
and its ability to influence the outcome of elections. Therefore, district elections
must be implemented in the City of Arroyo Grande.
4
Item 11.b. - Page 20
1. United States Voting Rights Act
The United States Voting Rights Act is landmark federal legislation
prohibiting racial discrimination in voting. Passed in 1965 in the wake of
suppression of civil and voting rights, the United States Voting Rights Act is
intended to enforce the voting rights guaranteed by the 14th and 15th
Amendments to the United States Constitution and, in particular, the provisions of
the 15th Amendment: "The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any State on account of race ...
[or] color".
According to the United States Voting Rights Act: "No voting qualification or
prerequisite to voting or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner which results in a denial
or abridgment of the right of any citizen of the United States to vote on account of
race or color ... A violation .. . is established if, based on the totality of
circumstances, it is shown that the political processes leading to nomination or
election in the State or political subdivision are not equally open to participation
by members of a class of citizens ... in that its members have less opportunity
than other members of the electorate to participate in the political process and
elect representatives of their choice. The extent to which members of a protected
class have been elected to office in the . . . political subdivision is one
circumstance which may be considered" (52 U.S. Code Sec. 10301 ).
The United States Supreme Court has "long recognized that multi-member
districts and at-large voting schemes may operate to minimize or cancel out the
voting strength" of protected classes (Thornburg v. Gingles, 478 U.S. 30, 47
(1986)). Although legal actions against government jurisdictions in California to
require district ~lections have been brought since 2002 pursuant to the California
Voting Rights Act (rather than the U.S. Voting Rights Act), the federal Voting
Rights Act also provides explicit and strong protection for the voting rights of
members of protected classes.
5
Item 11.b. - Page 21
2. California Voting Rights Act
Building upon the United States Voting Rights Act, the California Voting
Rights Act was passed by the California legislature in 2001 and signed into law in
2002 to allow legal challenges to government jurisdictions in California with at-
large methods of election to require them to institute district elections. According
to the Rose Institute of State and Local Government at Claremont McKenna
College, the statewide leader in gathering information on the transition from at-
large to district elections: "The California Voting Rights Act was written to
promote the use of by-district elections to encourage the election of candidates
preferred by previously 'underrepresented' voters such as Latinos."2 A copy of the
California Voting Rights Act is included here as Exhibit B and incorporated herein
by this reference.
As previously cited, the core provision of the California Voting Rights Act
(CVRA) is:
14027. An at-large method of election may not be imposed or
applied in a manner that impairs the ability of a protected class to
elect candidates of its choice or its ability to influence the outcome of
an election, as a result of the dilution or abridgment of the rights of
voters who are members of a protected class.
The CVRA could not be more clear. An at-large method of election is
illegal in California when it impairs the ability of members of protected classes to
elect candidates of their choice or to influence the outcomes of elections as a
result of dilution of the vote or abridgment of the rights of voters who are
members of a protected class. Upon showing vote dilution or abridgment of the
rights of voters who are members of a protected class, at-large methods of
election must be discontinued.
According to Section 14028 of the CVRA: "A violation of Section 14027 is
established if it is shown that racially polarized voting occurs in elections for
members of the governing body of the political subdivision or in elections
incorporating other electoral choices by the voters of the political subdivision." In
addition: 11 Other factors such as ... the extent to which members of a protected
class bear the effects of past discrimination in areas such as education,
employment, and health ... are probative ... factors to establish a violation" of the
CVRA (Sec. 14028(e)).
6
Item 11.b. - Page 22
The CVRA is clear with respect to what the remedy for illegal, at-large
elections is: "Upon a finding of a violation ... , the court shall implement
appropriate remedies, including the imposition of district-based elections,
that are tailored to remedy the violation" (Sec. 14029, emphasis added). Though
a remedy for a violation of the CVRA other than single-member district elections
may be contemplated here, no remedy has in fact been ordered by a California
court for violation of the California Voting Rights Act other than district elections.
When, as in the City of Arroyo Grande, a government jurisdiction uses an
illegal, at-large method of election, district e!ecuons must be instituted.
To date, dozens of legal actions have been brought against cities, school
districts, special districts, and other government jurisdictions in California for
violation of the California Voting Rights Act, including cities and government
jurisdictions with smaller total and protected class populations than in Arroyo
Grande. All legal actions to enforce the CVRA have been successful. The
replacement of at-large elections by district elections is sweeping the state as a
result of the CVRA.
California cities to institute district elections just since 2016 are presented
in the chart on the next page. More than 100 California cities now utilize district
elections. In addition, more than 160 California public school districts have
implemented district elections in recent years.
The California Voting Rights Act was ruled constitutional by a California
Court of Appeal in Sanchez v. City of Modesto in 2007. This decision held: "The
CVRA is race neutral. It does not favor any race over others or allocate burdens
or benefits to any groups on the basis of race. It simply gives a cause of action to
members of any racial or ethnic group that can establish that its members' votes
are diluted."3 The court also held: "Curing vote dilution is a legitimate government
interest"; and: 'To prove a violation, plaintiffs ... do not need to show that
members of a protected class live in a geographically compact area. "4
The CVRA states as well: "Proof of an intent on the part of the voters or
elected officials to discriminate against a protected class is not required" (Section
14028(d)) to sustain a legal action brought pursuant to the California Voting
Rights Act.
7
Item 11.b. - Page 23
A. California Cities to Institute District Elections
Since 2016 (Partial List)
Anaheim Menlo Park
Banning Merced
Bellflower Novato
Brentwood Oceanside
Buellton Oxnard
Buena Park Palmdale
Camarillo Palm Springs
Carlsbad Paso Robles
Carpinteria Patterson
Cathedral City Rancho Cucamonga
Chino Redwood City
Citrus Heights Riverbank
Claremont San Clemente
Corona San Juan Capistrano
Costa Mesa San Rafael
Chino Santa Clara
Dixon Santa Maria
Duarte Santee
Eastvale Stanton
El Cajon Sunnyvale
Fort Bragg Turlock
Fremont Upland
Fullerton Vallejo
Garden Grove Visalia
Goleta Vista
Grover Beach West Covina
Hesperia Wildomar
Highland Woodland
King City Yucaipa
Lompoc
8
Item 11.b. - Page 24
3. Abridg ment of Votin g Ri g hts and Raci a ll y
Polarized Voting in the City of Arroyo Grande
Abridgment of voting rights and racially polarized voting characterize
elections in the City of Arroyo Grande. The following chart presents the
candidates in each contested City Council election since 2000 and the number of
votes they received (there were no elections some years as a result of
insufficient candidates). An asterisk (*) is placed next to candidates from a
protected class:
B. City Council Candidates and the Votes They Received
In City of Arroyo Grande, 2000 to Present
Candidate Votes
2000 Runels 3,945
Lubin 3,443
Costello 2,971
Guthrie 2,231
2002 Dickens 3,346
Costello 3,021
Fowler 2,901
Bonds 1,514
2004 Arnold 4,529
Guthrie 4,479
Lightfoot 2,246
Baur 2,199
2006 Costello 3,975
Fellows 3,830
Murphy 2,031
9
Item 11.b. - Page 25
candidate Votes
2010 Costello 4,151
Brown 3,426
Kessler 1,839
Laurenzano 1,602
2014 Harmon 3,792
Brown 3,132
Costello 2,834
2016 Ray 4,963
Barneich 4,109
Mack 2,480
Sage 2,452
Akins 1,794
2018 Paulding 5,253
Storton 4,500
Kubel 2,347
Mack 1,833
Fowler-Payne 1,105
Apparently, no member of a protected class ran for or was elected to the Arroyo
Grande City Council between 2000 and 2018.
The next chart on the following page presents the total number of
candidates in each Arroyo Grande City Council election since 2000, the number
of candidates elected, the number of candidates from protected classes who ran,
and the number of candidates from protected classes elected:
10
Item 11.b. - Page 26
C. Arroyo Grande City Council
Elections Since 2000, Candidates
Total Elected ecotect. Class Elected ecotect.
Candidates Candidates candidates Class Cand.s
2000 4 2 0 0
2002 4 2 0 0
2004 4 2 0 0
2006 3 2 0 0
2010 4 2 0 0
2014 3 2 0 0
2016 5 2 0 0
2018 ....5 .-2 .0. Q
Total: 32 16 0 0
As can be seen, apparently no candidates for election to the Arroyo
Grande City Council since 2000 have been members of a protected class, and
apparently no elected candidates have been members of a protected class. As a
result of their proportion of Arroyo Grande's population, Latinos have been
particularly underrepresented.
The next chart on the following page presents the number of total votes in
each Arroyo Grande City Council election since 2000, the number of votes cast
for candidates from protected classes, and the percentage of total votes that
were cast for candidates from protected classes:
11
Item 11.b. - Page 27
D. Arroyo Grande City Council Elections Since 2000, Votes
Yaar Total Votes Protect. Class Percentage
2000 12,590 0 0
2002 10,782 0 0
2004 13,453 0 0
2006 9,836 0 0
2008 11,018 0 0
2012 9,758 0 0
2016 15,798 0 0
2018 15,038 0 _Q_
Total: 98,273 0 0
As can be seen, of almost 100,000 votes cast for the Arroyo Grande City
Council since 2000, apparently none have been for candidates who have been
members of protected classes. Again, as a result of their proportion of the
population, Latinos have been particularly underrepresented.
Racially polarized voting characterizes elections in the City of Arroyo
Grande. According to the 2017 United States Census Bureau American
Community Survey estimate, the current population of Arroyo Grande is slightly
more than 30 percent non-white:
E. Arroyo Grande Ethnicity, 2017
Group Percentage
White 69.4
Latino 15.7
Asian 5.6
Native Am 1.2
African Am 0.6
Multi/Other 7,5
Total: 100.0
12
Item 11.b. - Page 28
Moreover, Arroyo Grande is becoming even more diverse. In the year
2000, according to the Census Bureau, the white population was 77.3 percent
and the Latino population was 11.2 percent.
Arroyo Grande's increasing and significant diversity is reflected even more
in its school age population. The following table presents just the Latino and
white student enrollments at Harloe Elementary School and Arroyo Grande High
School in 2014-15 and 2018-19:
F. Latino and White Enrollments, Harloe Elementary and
Arroyo Grande High Schools, 2014-15 and 2018-19
School 2014-15 2018-19
Lat.% White% Lat,% White%
Harloe Elementary 31.9% 58.7°/4 32.9% 56.5°/o
Arroyo Grande HS 33.1% 58.6% 35.6% 55.1%
As a result of concerns about compliance with the California Voting Rights
Act, a number of· government jurisdictions in San Luis Obispo County have
implemented district elections in recent years. Government jurisdictions in San
Luis Obispo county with district elections include:
G. Government Jurisdictions in
SLO County with District Elections
SLO County Board of Supervisors
SLO County Board of Education
SLO County Community College District
City of Paso Robles
City of Grover Beach
Lucia Mar Unified School District
Paso Robles Joint Unified School District
San Luis Coastal Unified School District
Shandon Joint Unified School District
13
Item 11.b. - Page 29
In Santa Barbara county, the Cities of Santa Maria, Lompoc, Buellton, Goleta,
Santa Barbara, and Carpinteria have all instituted district elections in recent
years as a result of California Voting Rights Act concerns.
Furthermore, pursuant to the California Voting Rights Act, it is not
necessary that racially polarized voting be demonstrated only in elections to a
government jurisdiction's governing board. Rather: "'Racially polarized voting'
means 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" (Sec. 14026(e))--irrespective of whether the differences in
voting occur for the governing board or council of the government jurisdiction in
which district elections are sought.
This is made clear by legal specialists in districting, electoral issues, and
voting rights Marguerite Leoni and Christopher Skinnell. They write in "The
California Voting Rights Act," published by the Public Law Journal (vol. 32, Spring
2009), an official publication of the State Bar of California Public Law Section,
and distributed by the League of California Cities:
No Minority Candidates.
The fact that no members of the minority group have ever run for
membership on the legislative body will not insulate a jurisdiction
from CVRA challenge. The CVRA expressly provides that a violation
can be shown if racially-polarized voting occurs in elections
incorporating other electoral choices that affect the rights and
privileges of members of a protected class, such as ballot measures.
(Elec. Code Sec.s 14028(a) & (b).) Some particularly obvious
examples ... might include Proposition 187 (denying services to
undocumented immigrants), [and] Proposition 209 (preventing state
agencies from adopting affirmative action programs) ... But other
local measures may also serve the same purpose.5
This article also states that the California Voting Rights Act "makes
fundamental changes to minority voting rights law in California"; the CVRA "alters
established paradigms of proof and defenses ... , thus making it easier for
plaintiffs in California to challenge allegedly discriminatory voting practices"; the
CVRA "prescribe[s] an extremely light burden ... to establish a violation"; the
CVRA "eliminate[s] the first precondition that plaintiffs must prove at the liability
14
Item 11.b. - Page 30
stage in federal litigation, that is, that the minority group is sufficiently large and
geographically compact to form a majority in a single member district"; the CVRA
"eliminates the requirement that plaintiffs prove discrimination\ the CVRA
"mandates the award of costs, attorneys' fees, and expert expenses to prevailing
plaintiffs"; the CVRA "denies not only attorneys' fees but also the costs of
litigation to prevailing defendants"; the "sole fact that the voters of a city or
special district have enacted an at-large electoral system by ballot measure, or
rejected a by-district electoral system by ballot measure, will not protect a
jurisdiction"; and "Demands by minority group representatives for a change to by-
district elections must be taken seriously, even if the minority group is not
numerous enough to form a majority in a new single member district. Changing
voluntarily permits the elected representatives ... to control the districting process
and the considerations that will guide the districting. Once the single member
districts are in place, the [government jurisdiction] is in the CVRA safe harbor."6
A copy of this article is attached here as Exhibit E and incorporated herein by this
reference.
Since 2002, there are many examples of racially polarized voting, vote
dilution, or differential voting in the City of Arroyo Grande on state ballot
measures, as presented in the next chart:
H. Racially Polarized Voting on State
Ballot Measures in Arroyo Grande Since 2002
Year Ballot Measure Purpose
2002 46 Housing shelter
2002 47 Education facilities bonds
2002 49 School programs
2004 61 Children's hospital
2004 63 Mental health services
2004 66 Limit "3 Strikes"
2006 1C Emergency shelter
2006 1D Education facilities bonds
2006 86 Cigarette tax
2008 9 Criminal justice system
15
Item 11.b. - Page 31
Year Ballot Measure Purpose
2010 21 Vehicle license fee
2010 25 State budget vote
2012 30 Education taxes
2012 32 Political contributions
2016 51 School bonds
2018 1 Housing assistance bonds
At the local level, Measure G in 2018 (countywide fracking and oil drilling
ban) provides an example of racially polarized voting, vote dilution, or differential
voting. Research indicates that if this analysis were continued to the 1980s,
incorporating state and local ballot measures and candidates for state and local
office, it would be possible to demonstrate 40 or more instances of racially
polarized voting in the City of Arroyo Grande. Pursuant to the California Voting
Rights Act, district elections must be instituted in the City of Arroyo
Grande.
Furthermore, the California Voting Rights Act also states: "Other factors
such as . . . denial of access to those processes determining which groups of
candidates will receive financial or other support in a given election, the extent to
which members of a protected class bear the effects of past discrimination in
areas such as education, employment, and health, which hinder their ability to
participate effectively in the political process, ... are probative, but not necessary
factors to establish a violation" (Sec. 14028(e)). As well as the examples of
abridgment of voting rights, racially polarized voting, and vote dilution previously
outlined, there is ample evidence of the extent to which members of protected
classes in Arroyo Grande bear the effects of past discrimination in areas such as
education, employment, and health.
The next chart on the following page presents comparisons between the
white and Latino populations in the City of Arroyo Grande on socioeconomic
characteristics pertaining to education, employment, and health according to the
2017 United States Census Bureau American Community Survey estimate:
16
Item 11.b. - Page 32
I. Comparison Between White and Latino Populations in
City of Arroyo Grande on Various Socioeconomic Characteristics, 2017
Education
Adults with high school degree
Adults with bachelor's degree
Employment
Per capita income
Households receiving food stamps
Health
No health insurance
White Population Latino Population
96.4%
36.4%
$41,568
2.3%
4.1%
75.0%
20.5%
$25,172
8.1%
12.4%
In addition, data from schools within the Lucia Mar Unified School District
reveal a gap between white and Latino student performance. The California
Assessment of Student Performance and Progress (CAASPP) is the main state
assessment system for students in California schools. The CAASPP provides
educational performance measures in a variety of areas. The following tables
present achievement for white and Latino students tested in Harloe Elementary
School and Arroyo Grande High School in 2018 in English Language Arts/
Literacy and Mathematics, disaggregated by white and Latino students:
J. Harloe Elementary School 2018 CAASPP
English Language Arts/Literacy Achievement by Ethnicity
Achievement Level Whites Latinos
4 --Exceeds Standard 38.73°/o 24.24%
3 --Meets Standard 31.37% 25.76%
2 --Nearly Meets Standard 18.63% 27.27%
1 --Standard Not Met 11.27% 22.73%
17
Item 11.b. - Page 33
K. Harloe Elementary School 2018 CAASPP
Mathematics Achievement by Ethnicity
Achievement LeveJ
4 --Exceeds Standard
3 --Meets Standard
2 --Nearly Meets Standard
1 --Standard Not Met
Whites
37.07%
28.29%
23.41%
11.22%
Latinos
18.94%
20.45%
34.85%
25.76%
L. Arroyo Grande High School 2018 CAASPP
English Language Arts/Literacy Achievement by Ethnicity
Achievement Level Whites Latinos
4 --Exceeds Standard 35.21% 15.57°/o
3 --Meets Standard 38.58% 28.74%
2 --Nearly Meets Standard 17.23% 32.93%
1 --Standard Not Met 8.99% 22.75%
M. Arroyo Grande High School 2018 CAASPP
Mathematics Achievement by Ethnicity
Achievement Level Whites Latinos
4 --Exceeds Standard 12.93% 6.17%
3 --Meets Standard 27.38% 11.73%
2 --Nearly Meets Standard 25.86% 18.52%
1 --Standard Not Met 33.84% 63.58%
Clear and compelling evidence exists that the City of Arroyo Grande's
current, at-large method of election to its City Council is illegal. In the event this
matter were to become the subject of litigation through a lawsuit being filed, it
would be possible to establish dozens of examples of abridgment of protected
class voting rights, racially polarized voting, vote dilution, differential voting, and
effects of past discrimination. It is inescapable the City of Arroyo Grande would
be ordered by a court to institute district elections. A draft complaint for violation
of the California Voting Rights Act by the City of Arroyo Grande is included here
18
Item 11.b. - Page 34
as Exhibit A and incorporated herein by this reference in the event that court
action is required in this matter.
19
Item 11.b. - Page 35
4. Method s of Instit utin g District
Elections in the City of Arroyo Grande
There are two methods by which district elections may be instituted in the
City of Arroyo Grande: a) litigation, or b) a pre-litigation settlement agreement by
the Arroyo Grande City Council outlining its intention to transition from at-large to
district elections, specifying specific steps it will take to facilitate this transition,
and estimating the time-frame for this transition.
If litigation is the path followed, a court action may--at any time after 45
days from the City's receipt of the certified letter notifying it of a violation of the
CVRA--be commenced in San Luis Obispo County Superior Court against the
City of Arroyo Grande for violation of the California Voting Rights Act.
If the City of Arroyo Grande chooses a pre-litigation settlement, then,
pursuant to Section 1001 O of the California Elections Code, the process the City
must follow, as modified by the settlement agreement, is:
1) Within 45 days of receipt of the certified letter notifying the City of Arroyo
Grande that its method of conducting elections may violate the CVRA, the Arroyo
Grande City Council must adopt a resolution outlining its intention to transition
from at-large to district elections, specifying specific steps it will take to facilitate
this transition, and estimating the time-frame for this transition.
2) If the Arroyo Grande City Council passes a resolution to this effect, a
legal action may not be commenced for another 90 days after the resolution's
passage or until as specified in the settlement agreement.
3) Before district lines are drawn, the Arroyo Grande City Council holds two
public hearings at which the public is invited to provide input concerning the
composition of districts. In advance of these hearings, the City of Arroyo Grande
should conduct outreach to the public, including to non-English-speaking
communities, explaining the districting process and encouraging participation.
4) Following these two public hearings, the City of Arroyo Grande
publishes and makes available for release at least one draft map and the
proposed sequence of elections to the new districts. The Arroyo Grande City
Council must then hold two more public hearings at which the public is invited to
provide input on the draft map or maps and proposed sequence of elections.
20
Item 11.b. - Page 36
5) In determining the sequence of elections, the Arroyo Grande City
Council is required to give special consideration to the purposes of the California
Voting Rights Act. For this reason, it is very likely that among the first districts in
which district elections will be held will be districts including larger proportions of
individuals from protected classes.
6) After adopting the resolution of intention to transition from at-large to
district elections and holding the public hearings, the Arroyo Grande City Council
adopts a map of districts and a sequence of elections.
If the City of Arroyo Grande establishes district elections according to the
above process, as modified by a settlement agreement, no litigation is necessary.
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5 . Ad v a nta ges of a Pre-Liti gat ion Settl em ent
There are many advantages of a pre-litigation settlement agreement rather
than a court action to enforce the California Voting Rights Act to institute district
elections. Most importantly, the City of Arroyo Grande and the Arroyo Grande City
Council retain a greater role in and control over the transition process to district
elections and legal costs are limited.
A greater role by the Arroyo Grande City Council over the transition to
district elections could manifest itself in a number of ways, including:
1) Pursuant to Assembly Bill 2220, passed into legislation in 2016, cities of
any size may adopt a resolution to implement district elections, with or without an
elective mayor. As a result of a court action, the Arroyo Grande City Council
would lose the authority to determine the number of districts in the city (four or
five) and whether or not there would continue to be an elective mayor.
2) Participation in timing of the first district elections, whether in 2020 or
2022. If this matter were to go to court, a court would probably require that the
first district elections be held in 2020. As a result of a pre-litigation settlement
agreement, the first district elections could be held in 2022. Elsewhere in
California, settlement agreements have been reached to hold the first district
elections in November 2022, following the 2020 census. These settlement
agreements have allowed the affected government jurisdiction to commence
district elections in 2022, rather than 2020, to save the costs in time and expense
of redistricting in both 2020 (using 2010 census data) and in 2022. In addition,
existing incumbents elected in 2016 would be eligible to run for reelection in 2020
under existing electoral arrangements under a settlement agreement to
implement district elections starting in November 2022.
3) The Arroyo Grande City Council would retain the ability to draw the lines
of City Council districts both now and in the future rather than the court drawing
the lines of City Council districts through a court-determined process.
4) The existing City Council would be retained and there would be no
chance of a special election. Occasionally in court actions brought pursuant to
the CVRA, past at-large elections have been nullified and courts have ordered
new, special elections to elect councilmembers from districts.
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5) The existing elected, at-large Mayor would be retained. As a result of a
court action, the City of Arroyo Grande could be required to implement five
districts for its city council.
6) Saving of plaintiffs' attorney fees and its own legal expenses by the City
of Arroyo Grande, potentially saving hundreds of thousands or more than a
million dollars.
The preceding are only some of the advantages of a pre-litigation
settlement. It should be noted that pursuant to Assembly Bill 2220 passed in
2016, no vote of the people is required to institute district elections in the City of
Arroyo Grande. A copy of Assembly Bill 2220 is included here as Exhibit C and
incorporated herein by this reference.
As an example f ram another city, a copy of the resolution and settlement
agreement establishing district elections in the City of Carpinteria is included
here as Exhibit Hand incorporated herein by this reference.
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6. Attorneys' Fees
Pursuant to the CVRA: "In any action to enforce [the California Voting
Rights Act] the court shall allow the prevailing plaintiff party . . . a reasonable
attorney's fee ... and litigation expenses including, but not limited to, expert
witness fees and expenses as part of the costs" (Sec. 14030). In addition:
"Prevailing defendant parties shall not recover any costs" (id.).
In recent years, many jurisdictions have had to pay hundreds of thousands
and even millions of dollars in attorneys' fees to prevailing plaintiff parties.
Moreover, jurisdictions are responsible for their own legal costs, which can also
be hundreds of thousands of dollars. The following table presents some
settlements in California Voting Rights Act litigation:
N. Settlements in CVRA Litigation (partial list)
Jurisdiction Settlement
City of Palmdale $4,500,000
City of Modesto $3,000,000
City of Anaheim $1,200,000
City of Whittier $1,000,000
Santa Clarita
Community College Dist. $850,000
San Mateo County $650,000
Tulare Healthcare District $500,000
City of Escondido $385,000
City of Garden Grove $290,000
City of Bellflower $250,000
Madera School District $162,500
As a result of the potentially great costs of litigation, the California Voting
Rights Project strongly recommends that government jurisdictions reach
settlement in the statutory 45-day pre-litigatiQD stage. In this case, pursuant
to Assembly Bill 350 signed into legislation in 2016, costs to government
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jurisdictions are capped at $30,000 plus annual CPI adjustment (now, $31,211).7
It should be emphasized that Assembly Bill 350 applies only to the pre-litigation
phase of cases brought pursuant to the CVRA. If a CVRA action becomes the
subject of litigation through a complaint being filed, then there is no cap on
attorneys' fees and costs other than as stated in the CVRA.
In addition, because Assembly Bill 350 would "impose additional duties on
local agencies, the bill would impose a state~mandated local program. The
California Constitution requires the state to reimburse local agencies and school
districts for certain costs mandated by the state ... This bill would provide that, if
the Commission on State Mandates determines that the bill contains costs
mandated by the state, reimbursement for these costs shall be made pursuant
to ... statutory provisions" (Legislative Counsel's Digest of Assembly Bill 350).
Accordingly, it may be possible for the City of Arroyo Grande to obtain
reimbursement from the state for a pre-litigation settlement. A copy of Assembly
Bill 350 is included here as Exhibit D and incorporated herein by this reference.
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7. Benefits of District Elections
Even if the City of Arroyo Grande were not required to institute district
elections pursuant to the California Voting Rights Act, there are many benefits of
district elections which have been experienced in other communities. These
include greater voter turn-out and participation. In some cities, turn-out in some
precincts increased by as much as one-quarter after district elections were
implemented.
District elections bring government closer to the people. They result in
representatives who are more knowledgable of local problems and issues.
Candidates learn about their voting district when running for office. Voters have a
member of the City Council to whom they can turn on issues, and
councilmembers become more knowledgeable about area-specific concerns.
There is a wider spectrum of views on the City Council and more representation
from all neighborhoods and the entire community. District elections lead to
greater neighborhood identity and have been accompanied by greater diversity of
all sorts on elective bodies.
District elections also result in less expensive political campaigns. It is
easier for younger and lower socioeconomic candidates to run for office if they do
not have to raise as much money. This results in less influence by special
interests. By walking door to door and other inexpensive means, candidates can
be elected who would not be elected in at-large elections.
Arroyo Grande will be a better city with district elections--more
representative of the people, and in compliance with the law. District elections will
make elections to the City Council fairer and more inclusive, and will increase
participation and representation. The universal experience with district elections
in California is that cities and other government jurisdictions have found them to
be a superior form of representation, irrespective of legal requirement.
For further information on the likelihood of district elections being imposed
by a court, see the February 21, 2017, Council Agenda Report in the City of
Santa Maria, included here as Exhibit F and incorporated herein by this
reference. According to this report: "After much analysis and in-depth
conversations with those most familiar with these types of litigation matters, staff
is recommending that the City Council adopt a resolution declaring its intention to
transition from at-large to district-based elections ... Staff makes this
recommendation due to the extraordinary costs to successfully defend against a
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CVRA lawsuit and the fact that no apparent city has successfully prevailed
against a CVRA lawsuit, and that the public interest would best be served by
transitioning to a district-based election system."8
Because candidates for higher elective office are overwhelmingly elected
first to local office, district elections lead in time to greater representation at all
levels of government. In addition, as members of protected classes are elected to
governing boards, there is a tendency for more members of protected classes to
become employed by government jurisdictions, thereby increasing diversity at
the staff level. Although its focus is the benefits of district elections to school
districts, ''The Politics of Latino Education: The Biases of At-Large Elections," by
David Leal, Valerie Martinez-Ebers, and Kenneth Meier, published in the Journal
of Politics, a publication of the Southern Political Science Association, contains
much pertinent information. It is included here as Exhibit G and incorporated
herein by this reference.
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Conclusion
Abridgment of voting rights and racially polarized voting have no place in
the City of Arroyo Grande or anywhere else. Clear and compelling evidence of
racially polarized voting, abridgment of voting rights, vote dilution, differential
voting, and effects of past discrimination exists in the City of Arroyo Grande that
would sustain a legal action brought against the City pursuant to the California
Voting Rights Act to institute district elections. A pre-litigation settlement
agreement by the Arroyo Grande City Council provides the best opportunity to
implement district elections in a manner that retains participation by the City
Council in the transition process to district elections and is cost-effective.
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Endnotes
1 Cf. 11 CVRA Settlement Agreement / Resolution of Intention," Council Agenda
Staff Report, City of Carpinteria (August 14, 2017): "The City Attorney's Office
has surveyed the reported case law concerning litigation based on a violation of
the CVRA. There is no reported case in which the defendant public agency has
prevailed on the merits by proving that a violation of the CVRA did not occur" (p.
3).
2 Justin Levitt et al., "Quiet Revolution in California Local Government Gains
Momentum" (Claremont McKenna College: Rose Institute of State and Local
Government, November 3, 2016), p. 1. The Rose Institute remarks on the switch
from at-large to district elections in California: "This quiet tectonic shift in local
government is accelerating" (id.).
3 . Sanchez v. City of Modesto, Court of Appeal, Fifth District, California, No.
F048277 (December 6, 2006).
4 Id.
5 Marguerite Mary Leoni and Christopher E. Skinnell, "The California Voting
Rights Act," Public Law Journal (Vol. 32, No. 2, Spring 2009; Official Publication
of the State Bar of California Public Law Section; included here as Exhibit E).
6 Id.
7 Pursuant to Assembly Bill 350: "The amount of reimbursement required by this
section is capped at $30,000, as adjusted annually to the Consumer Price Index
for All Urban Consumers, U.S. city average, as published by the United States
Department of Labor" (Section 1. 1001 0(f)(3)). In 2017, the increase in the
Consumer Price Index for All Urban Consumers was 2.1 % and in 2018 the
increase was 1.9%, meaning the cap for reimbursement is now $31,211.
8 City of Santa Maria, "Council Agenda Report" (February 21, 2017; included
here as Exhibit F).
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Exhibits
A. Draft Complaint Against the City of
Arroyo Grande for Violation of the
California Voting Rights Act
B. California Voting Rights Act
C. Assembly Bill 2220
D. Assembly Bill 350
E. Marguerite Mary Leoni and Christopher E.
Skinnell, "The California Voting Rights Act,"
Public Law Journal (Spring 2009)
F. City of Santa Ma ria Council Agenda
Report with Respect to Implementing
District Elections
G. David L. Leal, Valerie Martinez-Ebers, and
Kenneth J. Meier, "The Politics of Latino
Education: The Biases of At-Large
Elections," Journal of Politics (No v. 2004)
H. Resolution and Settlement Agreement
Establishing District Elections in the
City of Carpinteria
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EXHIBIT ''A''
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DRAFT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN LUIS OBISPO
Complaint for Violation of the
California Voting Rights Act of 2001
A 2a inst the City of Arroyo Grande
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Plaintiffs, by and through their counsel of record, hereby bring this action against
defendant City of Arroyo Grande, California, and Does 1 through 25 (collectively "Defendants"
or "the defendants"). In support of their complaint, Plaintiffs allege as follows:
I . INTRODUCTION
1. This action is brought by Plaintiffs for injunctive relief against Defendants for their
violation of the California Voting Rights Act of 2001, California Elections Code Sec.s 14025, et
seq. (the "CVRA). The imposition of the City of Arroyo Grande's at-large method of election
for its four City Council member positions has resulted in vote dilution for members of protected
classes and has denied them effective political participation in elections to these positions on the
City Council of the City of Arroyo Grande. The City of Arroyo Grande's at-large method _of
election for electing members to its four City Council positions prevents members of protected
classes from electing candidates of their choice in Arroyo Grande City Council elections.
2. The effects of the City of Arroyo Grande's at-large method of election are apparent
and compelling. Pursuant to the 2017 United States Census Bureau American Community
Survey estimate, nonwhites comprise slightly more than 30% of the population of Arroyo
Grande. Despite a significant population of members of protected classes who live in the City of
Arroyo Grande, there has apparently not been a single member of a protected class who has run
for or been elected to a City Council position since the year 2000. None of the almost 100,000
votes cast in City Council elections since the year 2000 have been for members of protected
classes. This deficiency of members of protected classes who have been candidates for and been
elected to Arroyo Grande City Council member positions reveals the lack of access to the
political process.
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3. The City of Arroyo Grande's at-large method of election violates the CVRA.
Plaintiffs bring this action to enjoin the City of Arroyo Grande's continued abridgment of the
voting rights of members of protected classes. Plaintiffs seek a declaration from this Court that
the at-large method of election currently employed by the City of Arroyo Grande violates the
CVRA. Plaintiffs seek injunctive relief enjoining the City of Arroyo Grande from further
imposing or applying its current at-large method of election. Further, Plaintiffs seek injunctive
relief requiring the City of Arroyo Grande to design and implement district-based elections to
remedy its violation of the CVRA.
II. THE PARTIES
4. At all material times, Plaintiffs are and have been registered voters residing in the
City of Arroyo Grande and are eligible to vote in the City of Arroyo Grande's elections.
5. At all material times, defendant City of Arroyo Grande, California, is and has been
a political subdivision of the State of California subject to the provisions of the CVRA.
6. Plaintiffs are unaware of the true names and capacities of the defendants sued
herein as Does 1 through 25, inclusive, and therefore sue these defendants by such fictitious
names. Plaintiffs will amend this complaint to allege the true names and capacities of these
defendants when their true names are ascertained. Plaintiffs are informed and believe, and on
that basis allege, that the acts and conduct alleged herein of each defendant was known to,
authorized by, and/or ratified by the other defendants. Does 1 through 25, inclusive, are
individuals or entities which have caused the City of Arroyo Grande to violate the CVRA, failed
to prevent the City of Arroyo Grande's violation of the CVRA, or are otherwise responsible for
the acts and omissions alleged herein.
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7. Plaintiffs are informed and believe, and allege on that basis, that each defendant
named herein, at all times mentioned in this complaint, was the agent, employee, partner, joint
venturer, and/or employer of the other defendants and was at all times herein mentioned acting
within the course and scope of that agency, employment, partnership, ownership, or joint
venture.
III. JURISDICTION AND VENUE
8. All parties hereto are within the unlimited jurisdiction of this Court. The unlawful
acts subject to this complaint occurred in San Luis Obispo County.
9. Venue is proper in this court because the City of Arroyo Grande is a public entity
located within this county.
IV. GENERAL ALLEGATIONS
A. Political Background on the City of Arroyo Grande
10. Based on figures from the 2017 United States Census Bureau American
Community Survey estimate, the City of Arroyo Grande has a population of whom
approximately 69.4% are white, 15.7% are Latinos, 5.6% are Asians, 1.2% are Native
Americans, 0.6% are African Americans, and two or more races or other are 7.5%.
11. The City of Arroyo Grande is governed by a City Council. The Arroyo Grande
City Council serves as the governmental body responsible for the operation of the City. There
are four elected members of the City Council who are elected to four-year terms, and there is a
Mayor who is elected to a two-year term.
12. The four City Council members of Arroyo Grande are elected pursuant to an at-
large method of election. Under this method of election, all of the eligible voters of the entire
City of Arroyo Grande elect all four of the City Council member positions.
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13. Vacancies to the four City Council member positions are elected on a staggered
basis. Every two years, the electorate elects two City Council members who each serves a four-
year term. The Mayor is also elected at-large.
14. No member of a protected class has apparently run for or been elected to one of the
four City Council member positions since the year 2000. Members of protected classes have
apparently received none of the approximately 100,000 votes cast in elections for the four City
Council member positions since 2000.
B. Racial Polarization's Impact on the City of Arroyo Grande
15. Elections held within the City of Arroyo Grande are characterized by racially
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16. Racially polarized voting, vote dilution, and differential voting occur when
members of a protected class--as defined by California Elections Code Sec. 14025(d)--vote for
candidates or other electoral choices that differ from the rest of the electorate.
17. Racially polarized voting and vote dilution exist within the City of Arroyo Grande.
There is a difference between the choice of candidates and other electoral choices that are
preferred by members of protected classes and the choice of candidates and other electoral
choices that are preferred by voters in the rest of the electorate.
18. Racially polarized voting and vote dilution consist of both voter cohesion on the
part of members of protected classes and voter cohesion by the non-protected class electorate
against the choices of voters from protected classes.
19. Patterns of racially polarized voting and vote dilution have the effect of impeding
opportunities for voters who are members of protected classes to elect candidates of their choice
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to t~_e !our at-large City Council positions in the City of Arroyo Grande--the non-protected class
population dominates elections.
20. Voters from protected classes are harmed by racially polarized voting.
21. Since 2002, there are many examples of racially polarized voting, vote dilution,
and differential voting in the City of Arroyo Grande on state and local ballot measures and in
candidate elections, where voters from protected classes and other voters have differed in their
electoral choices. State ballot measures which provide evidence of racially polarized voting and
vote dilution include: 2002--Proposition 46 (housing shelter); 2002--Proposition 47 (education
facilities bonds); 2002--Proposition 49 (school programs}; 2004--Proposition 61 (children's
hospital); 2004--Proposition 63 (mental health services); 2004--Proposition 66 (limit "3
Strikes"); 2006--Proposition IC (emergency shelter); 2006--Proposition 1D (educational
facilities bonds); 2006--Proposition 86 (cigarette tax); 2008--Proposition 9 (criminal justice
system); 2010--Proposition 21 (vehicle license tax); 2010--Proposition 25 (state budget vote);
2012--Proposition 30 (education taxes); 2012--Proposition 32 (political contributions); 2016--
Proposition 51 (school bonds); 2018--Proposition 1 (housing assistance bonds). At the local
level, Measure Gin 2018 provides evidences of racially polarized voting and vote dilution.
C. Impact of Polarization on Protected Class Communities
22. Members of protected classes in the City of Arroyo Grande bear the effects of past
discrimination in areas such as education, employment, and health. Latinos, in particular, have
graduated at a lower rate from high school and college than whites, have lower per capita
income, have more households receiving food stamps, and have a higher percentage of
individuals without health insurance. There are marked differences in the educational
performance of white and Latino students in public schools serving Arroyo Grande.
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23. The at-large method of election voting has caused the dilution of the votes of
members of protected classes in the City of Arroyo Grande. Voters from protected classes and
the rest of the electorate regularly express different preferences on candidates and other electoral
choices, which has been to the detriment of voters from protected classes.
24. The obstacles posed by the City of Arroyo Grande's at-large method of election
impairs the ability of voters from protected classes to elect candidates of their choice in elections
held in the City of Arroyo Grande.
25. An alternative method of election exists, district-based elections, that will provide
11 an opportunity for the members of a protected class as defined by the CVRA to elect candidates
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26. All allegations made in this complaint are based upon information and belief,
except those allegations which pertain to the named Plaintiffs, which are based on personal
knowledge. The allegations of this complaint are stated on information and belief and are likely
to have evidentiary support after a reasonable opportunity for further investigation or discovery.
V. CAUSES OF ACTION
First Cause of Action
(Violation of California Voting Rights Act of 2001)
(Against All Defendants)
27. Plaintiffs hereby reallege and incorporate by reference each and every allegation
stated in paragraphs 1 through 26 above as though set forth fully herein.
28. Plaintiffs are registered voters and reside within the City of Arroyo Grande.
29. Plaintiffs are members of a protected class of voters under the CVRA.
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30. Plaintiffs are over the age of 18 and are eligible to vote in the City of Arroyo
Grande 's elections.
31. The City of Arroyo Grande is a political subdivision within the State of California.
32. The City of Arroyo Grande employs an at-large method of election, where voters of
its entire jurisdiction elect members to its City Council.
33. Racially polarized voting has occurred, and continues to occur, in elections in the
City of Arroyo Grande and in elections incorporating other electoral choices by voters in the City
of Arroyo Grande. As a result, the City of Arroyo Grande's at-large method of election is
imposed in a manner that impairs the ability of a protected class as defined by the CVRA to elect
candidates of its choice in City of Arroyo Grande elections.
34. An alternative method--district-based elections--exists that will provide an
opportunity for the members of a protected class as defined by the CVRA to elect candidates of
their choice in Arroyo Grande City Council elections.
35. An actual controversy has arisen and now exists between the parties relating to the
legal rights and duties of Plaintiffs and Defendants, for which Plaintiffs desire a declaration of
rights.
36. Defendants' wrongful conduct has caused and, unless enjoined by this Court, will
continue to cause, immediate and irreparable injury to Plaintiffs, and those similarly situated.
37. Plaintiffs, and those similarly situated, have no adequate remedy at law for the
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VI. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as
follows:
1. For a decree that the City of Arroyo Grande's current at-large method of election
for its four City Council member positions violates the California Voting Rights Act of 2001;
2. For preliminary and permanent injunctive relief enjoining the City of Arroyo
Grande from imposing or applying its current at-large method of election for these positions;
3. For injunctive relief mandating the City of Arroyo Grande to design and implement
district-based elections, as defined by the California Voting Rights of 2001, to remedy the City of
Arroyo Grande's violation of the California Voting Rights Act of 2001;
4. For an award of Plaintiffs' attorney fees, costs, and prejudgment interest pursuant
to the CVRA, California Elections Code Sec. 14030, and other applicable law; and
' 5. For such further relief as the Court deems just and proper.
18 Dated: November 15, 2019
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EXHIBIT ''B''
Item 11.b. - Page 57
CALIFORNIA VOTING RIGHTS ACT
ELECTIONS CODE SECTIONS 14025-14032
14025. This act shall be known and may be cited as the
California Voting Rights Act of 2001.
14026. As used in this chapter:
(a) "At-large method of election" means any of the
following methods of electing members to the governing body
of a political subdivision:
(1) One in which the voters of the entire jurisdiction
elect the members to the governing body.
(2) One in which the candidates are required to reside
within given areas of the jurisdiction and the voters of
the entire jurisdiction elect the members to the governing
body.
(3) One that combines at-large elections with district-
based elections.
(b) "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.
(c) "Political subdivision" means a geographic area of
representation created for the provision of government
services, including, but not limited to, a general law
city, general law county, charter city, charter county,
charter city and county, school district, community college
district, or other district organized pursuant to state
law.
(d) "Protected class" means a class of voters who are
members of a race, color, or language minority group, as
Item 11.b. - Page 58
this class is referenced and defined in the federal Voting
Rights Act of 1965 (52 u.s.c. Sec. 10301 et seq.).
(e) "Racially polarized voting" means voting in which there
is a difference, as defined in case law regarding
enforcement of the federal Voting Rights Act of 1965 (52
u.s.c. Sec. 10301 et seq.), 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. The methodologies for estimating group
voting behavior as approved in applicable federal cases to
enforce the federal Voting Rights Act of 1965 (52 u.s.c.
Sec. 10301 et seq.) to establish racially polarized voting
may be used for pur.poses of this section to prove that
elections are characterized by racially polarized voting.
14027. An at-large method of election may not be imposed or
applied in a manner that impairs the ability of a protected
class to elect candidates of its choice or its ability to
influence the outcome of an election, as a result of the
dilution or the abridgment of the rights of voters who are
members of a protected class, as defined pursuant to
Section 14026.
14028. (a) A violation of Section 14027 is established if
it is shown that racially polarized voting occurs in
elections for members of the governing body of the
political subdivision or in elections incorporating other
electoral choices by the voters of the political
subdivision. Elections conducted prior to the.filing of an
action pursuant to Section 14027 and this section are more
probative to establish the existence of racially polarized
voting than elections conducted after the filing of the
action.
(b) The occurrence of racially polarized voting shall be
determined from examining results of elections in which at
least one candidate is a member of a protected class or
elect.ions involving ballot measures, or other electoral
Item 11.b. - Page 59
choices that affect the rights and privileges of members of
a protected class. One circumstance that may be considered
in determining a violation of Section 14027 and this
section 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 been elected to the governing body of a
political subdivision that is the subject of an action
based on Section 14027 and this section. In multiseat at-
large election districts, where the number of candidates
who are members of a protected class is fewer than the
number of seats available, the relative groupwide support
received by candidates from members of a protected class
shall be the basis for the racial polarization analysis.
(c) The fact that members of a protected class are not
geographically compact or concentrated may not preclude a
finding of racially polarized voting, or a violation of
Section 14027 and this section, but may be a factor in
determining an appropriate remedy.
(d) Proof of an intent on the part of the voters or elected
officials to discriminate against a protected class is not
required.
(e) Other factors such as the history of discrimination,
the use of electoral devices or other voting practices or
procedures that may enhance the dilutive effects of at-
large elections, denial of access to those processes
determining which groups of candidates will receive
financial or other support in a given election, the extent
to which members of a protected class bear the effects of
past discrimination in areas such as education, employment,
and health, which hinder their ability to participate
effectively in the political process, and the use of overt
or subtle racial appeals in political campaigns are
probative, but not necessary factors to establish a
violation of Section 14027 and this section.
Item 11.b. - Page 60
14029. Upon a finding of a violation of Section 14027 and
Section 14028, the court shall implement appropriate
remedies, including the imposition of district-based
elections, that are tailored to remedy the violation.
14030. In any action to enforce Section 14027 and Section
14028, the court shall allow the prevailing plaintiff
party, other than the state or political subdivision
thereof, a reasonable attorney's fee consistent with the
standards established in Serrano v. Priest (1977) 20 Cal.3d
25, 48-49, and litigation expenses including, but not
limited to, expert witness fees and expenses as part of the
costs. Prevailing defendant parties shall not recover any
costs, unless th~ court finds the action to be frivolous,
unreasonable, or without foundation.
14031. This chapter is enacted to implement the guarantees
of Section 7 of Article I and of Section 2 of Article II of
the California Constitution.
14032. Any voter who is a member of a protected class and
who resides in a political subdivision where a violation of
Sections 14027 and 14028 is alleged may file an action
pursuant to those sections in the superior court of the
county in which the political subdivision is located.
Item 11.b. - Page 61
EXHIBIT ''C''
Item 11.b. - Page 62
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Bill Information California Law Publications Other Resources My Subscriptions
AB-2220 Elections in cities: by or from district. (201s-2016)
SHARE THIS:
Assembly BiJI No. 2220
CHAPTER 751
An act to amend Section 34886 of the Government Code, relating to elections.
My Favor ites
[ Approved by Governor September 28, 2016. Filed with Secretary of State
September 28, 2016. J
LEGISIATIVE COUNSEL'S DIGEST
AB 2220, Cooper . Elections in cities: by or from district.
Existing law generally requires all elective city offices, including the members of a city council, to be filled at
large by the city electorate at a general municipal election . Existing law, at any municipal election or special
election held for this purpose, authorizes the legislative body of a city to submit to the registered voters an
ordinance providing for the election of members of the legislative body by district or from district, as defined,
and with or without an elective mayor. Existing law also authorizes the legislative body of a city with a
population of fewer than 100,000 people to adopt an ordinance that requires the members of the legislative
body to be elected by district or by district with an elective mayor without being required to submit the
ordinance to the voters for approval.
This bill would delete the population limitation I n that provision, thereby authorizing the legislative body of a
city to adopt an orc;f inance that requires the members of the legislative body to be elected by district or by
district with an elective mayor wl thout being required to submit the ordinance to the voters for approval.
The bill also would make a conforming change to these provisions.
Vote: majority Appropriation: no Fiscal Committee: no Local Program: no
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 34886 of the Government Code is amended to read :
34886. Notwithstanding Section 34871 or any other law, the legislative body of a city may adopt an ordinance
that requires the members of the legislative body to be elected by district or by district with an elective
mayor, as described in subdivisions (a) and {c) of Section 34871, w i thout being required to submit the
ordinance to the voters for approval . An ordinance adopted pursuant to this section shall include a declaration
Item 11.b. - Page 63
' I
I
that the change in the method of electing members of the legislative body is being made in furtherance of the
purposes of the California Voting Rights Act of 2001 (Chapter 1.5 (commencing with Section 14025) of
Division 14 of the Elections Code).
Item 11.b. - Page 64
EXHIBIT ''D''
Item 11.b. - Page 65
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Bill Information California Law Publications Other Resources My Subscriptions
AB-350 District-based municipal elections: preapproval hearings. (2015-2016)
SHARE THIS:
Assembly Bill No. 350
CHAPTER 737
An act to amend Section 10010 of the Elections Code, relating to elections.
My Favorites
[ Approved by Governor September 28, 2016. Filed with Secretary of State
September 28, 2016. ]
LEGISLATIVE COUNSEL'S DIGEST
AB 350, Alejo. District-based municipal elections: preapproval hearings.
Existing law provides for political subdivisions that encompass areas of representation within the state. With
respect to these areas, public officials are generally elected by all of the voters of the political subdivision (at-
large) or by districts formed within the political subdivision (district-based). Existing law requires a political
subdivision, as defined, that changes from an at-large method of election to a district-based election to hold at
least 2 public hearings on a proposal to establish the district boundaries of the political subdivision before a
public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.
This bill would instead require a political subdivision that changes to, or establishes, district-based elections to
hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries,
as specified.
Existing law, the California Voting Rights Act of 2001 (CVRA), prohibits the use of an at-large method of
election in a political subdivision if it would impair the ability of a protected class, as defined, to elect
candidates of Its choice or otherwise influence the outcome of an election. The CVRA provides that a voter who
is a member of a protected class may bring an action in superior court to enforce Its provisions.
This bill would require a prospective plaintiff under the CVRA to first send a written notice to the political
subdivision against which the action would be brought indicating that the method of election used by the
political subdivision may violate the CVRA. The bill would permit the political subdivision to take ameliorative
steps to correct the alleged violation before the prospective plaintiff commences litigation, and it would stay
the prospective plaintiff's ability to file suit for a prescribed amount of time. This bill would also permit a
prospective plaintiff who sent a written notice, as described, to recover from the political subdivision
reasonable costs incurred in supporting the written notice.
Because the bill would Impose additional duties on local agencies, this bill would impose a state-mandated
local program.
I
I
Item 11.b. - Page 66
The California Constitution requires the state to reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs
mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 10010 of the Elections Code is amended to read:
10010. (a) A political subdivision that changes from an at-large method of election to a district-based election,
or that establlshes district-based elections, shall do all of the following before a public hearing at which the
governing body of the political subdivision votes to approve or defeat an ordinance establishing district-based
elections:
(1) Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision
shall hold at least two public hearings over a period of no more than thirty days, at which the public is Invited
to provide input regarding the composition of the districts. Before these hearings, the political subdivision may
conduct outreach to the public, including to non-English-speaking communities, to explain the districting
process and to encourage public participation.
(2) After all draft maps are drawn, the political subdivision shall publish and make available for release at
least one draft map and, if members of the governing body of the political subdivision will be elected in their
districts at different times to provide for staggered terms of office, the potential sequence of the elections. The
political subdivision shall also hold 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 map or maps and the proposed
sequence of elections, if applicable. The first version of a draft map shall be published at least seven days
before consideration at a hearing. If a draft map is revised at or following a hearing, it shall be published and
made available to the public for at least seven days before being adopted.
(b) In determining the final sequence of the district elections conducted in a political subdivision in which
members of the governing body will be elected at different times to provide for staggered terms of office, the
governing body shall give special consideration to the purposes of the California Voting Rights Act of 2001
(Chapter 1.5 (commenc;ing with Section 14025) of Division 14 of this code), and It shall take into account the
preferences expressed by members of the districts.
(c) This section applies to, but is not limited to, a proposal that is required due to a court-imposed change
from an at-large method of election to a district-based election.
(d) For purposes of this section, the following terms have the following meanings:
, ,,, (1) "At-large method of election" has the same meaning as set forth in subdivision (a) of Section 14026.
(2) "District-based election" has the same meaning as set forth in subdivision (b) of Section 14026.
(3) "Political subdivision" has the same meaning as set forth in subdivision (c) of Section 14026.
( e) ( 1) Before commencing an action to enforce Sections 14027 and 14028, a prospective plaintiff shall send
by certified mail a written notice to the clerk of the political subdivision against which the action would be
brought asserting that the political subdivision's method of conducting elections may violate the California
Voting Rights Act.
(2) A prospective plaintiff shall not commence an action to enforce Sections 14027 and 14028 within 45 days
of the political subdivision's receipt of the written notice described in paragraph (1).
(3) (A) Before receiving a written notice described in paragraph (1), or within 45 days of receipt of a notice, a
Item 11.b. - Page 67
political subdivision may pass a resolution outlining its intention to transition from at-large to district-based
elections, specific steps it will undertake to facilitate this transition, and an e~timated time frame for doing so.
(B) If a political subdivision passes a resolution pursuant to subparagraph (A), a prospective plaintiff shall not
commence an action to enforce Sections 14027 and 14028 within 90 days of the resolution's passage.
(f) {1) If a political subdivision adopts an ordinance establishing district-based elections pursuant to
subdivision (a), a prospective plaintiff who sent a written notice pursuant to sl.)bdivision (e) before the political
subdivision passed its resolution of intention may, within 30 days of the ordinance's adoption, demand
reimbursement for the cost of the work product generated to support the notice. A prospective plaintiff shall
make the demand in writing and shall substantiate the demand with financial documentation, such as a
detailed invoice for demography services. A political subdivision may request additional documentation If the
provided documentation is Insufficient to corroborate the claimed costs. A polltical subdivision shall reimburse
a prospective plaintiff for reasonable costs claimed, or in an amount to which the parties mutually agree,
within 45 days of receiving the written demand, except as provided In paragraph (2). In all cases, the amount
of the reimbursement shall not exceed the cap described in paragraph (3).
(2) If more than one prospective plaintiff is entitled to reimbursement, the political subdivision shall reimburse
the prospective plaintiffs in the order in which they sent a written notice pursuant to paragraph (1) of
subdivision (e), and the 45-day time period described in paragraph {1) shall apply only to reimbursement of
the first prospective plaintiff who sent a written notice. The cumulative amount of reimbursements to all
prospective plaintiffs shall not exceed the cap described in paragraph (3).
(3) The amount of reimbursement required by this ~ection is capped at $30,000, as adjusted annually to the
Consumer Price Index for All Urban Consumers, U.S. city average, as published by the United States
Department of Labor.
SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated b_y the state,
reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
Item 11.b. - Page 68
EXHIBIT ''E''
Item 11.b. - Page 69
THE CALIFORNIA VOTING RIGHTS ACT
Marguerite Mary Leoni*
Christopher E. Skinnen**
In 2002, the California Voting Rights Act, S.B. 976, was signed into law. (Elec. Code§§
14027-14032.) The Act makes fundamental changes to minority voting rights law in
California. As of January 1, 2003, the California Voting Rights Act ("CVRA") alters
established paradigms of proof and defenses under the federal Voting Rights Act, thus
making it easier for plaintiffs in California to challenge allegedly discriminatory voting
practices. 1 The potential consequences of this legislation are significant: it could force a
city or special district to abandon an electoral system that may be perfectly legal under
Ms. Leoni is a partner at Nielsen, Merksamer, Parrinello Mueller & Naylor, LLP (Mill Valley,
California), Phone: (415) 389-6800, E-mail: m1eonit@nms.mv1aw.cum. She specializes in legal counseling and civil
litigation relating to redistricting and voting rights questions, school district reorganiz.ations, campaign, government
and initiative/referendum law. Her practice includes both trial and appellate practice.
Ms. Leoni has represented and currently represents numerous state agencies, municipalities, counties,
school districts and other special districts on districting, redistricting and electoral matters. She has assisted in all
phases of such cases including design of plans, the public hearing process, analysis of proposed alternatives,
enactment procedures, referenda, districting and redistricting, preparing and advocating preclearance submissions to
the U. S. Department of Justice, and defending federal court litigation concerning the legality of electoral systems
under the federal constitution and Voting Rights Act She represented the Administrative Office of the Courts on
federal Voting Rights Act issues and electoral questions pertaining to trial court unification in California. She also
represented the Florida Senate in designing that state's Senate and Congressional districts, Voting Rights Act
preclearance, and in defending against ensuing state and federal court challenges. She also represented the
consultant to Arizona's Independent Redistricting Commission in designing redistricting plans for Arizona's state
legislative and congressional districts .
•• Mr. Skinnen is .an associate (bar results pending) at Nielsen, Merksamer, Parrinello, Mlleller &
Naylor, LLP (Mill Valley, California), Phone: (415) 389-6800, E-mail: csll.innell(ti:nnwovlaw .com. He received his
Bachelor's degree in 1999 from Claremont McKenna College, magna cum Laude, and is a 2003 graduate of the
University of Chicago Law S.chool, where he served as Editor-in-Chiefof The University of Chicago Legal Forum .
Prior to attending law school, he was a political consultant to several California legislative and initiative
campaigns, a research associate at the Rose Institute of State and Local Government, and chairman of a successful
initiative campaign in Southern California.
Mr. Skinnell has extensive experience with voting rights matters, both from the legal and technical
perspectives. In addition to working on various voting rights lawsuits, he has published numerous articles and
studies on voting rights and redistricting, has served as the technical/GI$ consultant on several municipal
redistrictings, and has prepared a successful preclearance submission to the U.S. Department of Justice under
S_ection 5 of the Voting Rights Act.
As noted in a celebratory press statement by the Mexican American Legal Defense and Education
Fund (MALDEF) following the passage of S.B. 976, which along with the ACLU and voting rights attorney Joaquin
Avila, was a primary supporter of the CVRA, the "[b]ill makes it easier for California minorities to challenge 'at-
large' elections."
1
Item 11.b. - Page 70
federal law, in the process exposing the jurisdiction to the possibility of paying very high
awards of attorneys fees to plaintiffs. 2 · .
California's cities, counties~ and special districts have had almost four decades of
experience in complying with the federal Voting Rights Act ("federal VRA"), especially
Section 2, the landmark legislation outlawing both intentional discrimination in voting
practices and those practices that have unintentional but discriminatory effects when
viewed in the totality of the circumstances. (Voting Rights Act of 1965, Pub. L. No. 89-
110, Stat. 437 (1965), codified as amended at 42 U.S.C. §§ 1971, 1973-1973ff-6 (1994).)
Indeed, California has adopted compliance with Section 2 as one of its statutory
redistricting criteria for cities, counties, and special districts. (See, e.g., Elec. Code §§
21601 [general law cities], 21620 [ charter cities], & 22000 [ special districts].) After
decades of litigation under the federal VRA, the courts have provided a wealth of
guidance for cities and special districts in identifying practices that may have
discriminatory effects. Most notable in California is the prevalence of the "at-large"
electoral system (see description below). Jurisdictions have learned to consider changing
to a district-based electoral system when they have minority group residents who are
sufficiently numerous and geographically concentrated to form a majority in a single-
member district, especially when that minority group, despite running candidates for
election, consistently fails to elect.
But now the voting rights legal environment with which cities and special districts have
grown familiar has changed significantly. Here are some of the highlights.
CVRA Highlights.
• Focus of the CVRA: "At•large" and "From-district" Elections.
If your city or special district elects its governing board members "by-district," (i.e., only
by the voters of the district, sometimes called "division" or "area," in which the candidate
resides), you can stop reading now. The CVRA does not apply to a by-district electoral
system. However, if you have an "at-large" or "from-district" system, read on!
The CVRA applies only to at-large and from-district electoral systems, or combination
systems. (Blee. Code §§ 14026(a), 14027.) At-large systems are those in which each
member of the governing board is elected by all the voters in the jurisdiction. Most
2 In federal voting rights cases, the litigation bill can run to hundreds of thousands of dollars even
for a small jurisdiction of a few thousand people. See Florence Adams, Latinos and Local Representation: Changing
Realities, Emerging Theories 73 (Garland 2000) (noting that in the City of Dinuba, California, the costs of federal
voting rights litigation added up to nearly $60 per person, more than the annual cost of Dinuba's Fire Department).
In a voting rights case filed against the City of Santa Paula in 2000 and recently settled, the City reportedly spent
$700,000 for attorneys fees. See T.J. Sullivan, "Santa Paula Quiet on Measure D," Ventura County Star B-01 (Oct.
20, 2002).
2
Item 11.b. - Page 71
jurisdictions in California, especially smaller jurisdictions, have at-large electoral
systems. "From-district" elections differ from at-large systems only in that they require
each member of the governing board to live within a particular district. Election,
however, is still by all the voters in the jurisdiction, rather than being limited to the voters
within a district. There are also combination systems in which, for example, a primary
election may be conducted "by-district", but the general election is conducted "from''
those same districts, e.g., the top two vote winners in the primary in each district run for election "at-large" in the general election.
Each of these variations is equally vulnerable to challenge if the minority plaintiffs can show that racially-polarized voting undercuts their ability to elect or influence the
election of minority-preferred candidates. Features that might cause plaintiffs to
scrutinize a city or special district as a potential target for a CVRA challenge include a history of electoral losses by minority candidates or a history of unresolved . issues
disproportionately affecting the minority community (e.g., affordable housing, street and
sidewalk maintenance, juvenile crime, etc.), coupled with a significant proportion of the
population that are ethnic or racial minorities.
• Protection For Minority Electoral "Influence."
The federal VRA prohibits the use of electoral systems that abridge the ability of
minority voters to elect candidates of their choice. Thus, if the minority plaintiffs would
have ,still been unable to elect their chosen candidates in the absence of the challenged at-large system, the plaintiff would have very little chance of stating a federal claim (see below). Not so under the CVRA. The CVRA invalidates not only at-large elections that prevent minority voters from electing their chosen candidates, but also those that impair
the ability of minority voters to influence elections.
To date, such influence claims have enjoyed very'limited recognition or success in federal
litigation, and California jurisdictions have no real experience with them. The U.S.
Supreme Court has repeatedly declined to address influence claims in recent years. See
Johnson v. De Grandy, 512 U.S. 997, 1008-09 (1994); Holder v. Hall, 512 U.S. 874, 900 n.8 (1994) (Thomas, J., concurring injudgment); Voinovich v. Quilter, 507 U.S. 146, 154
(1993); Growe v. Emison, 507 U.S. 25, 41 n.5 (1993). The federal courts in California
have refused to sanction such influence suits as well. See Aldasoro v. Kennerson, 922 F.Supp. 339, 376 (S.D. Cal. 1995); DeBaca v. County of San Diego, 794 F.Supp. 990, 996-97 (S.D. Cal. 1992); Skorepa v. City of Chula Vista, 723 F. Supp. 1384, 1391-92
(S.D. Cal. 1989); Romero v. City of Pomona, 665 F. Supp. 853, 864 (C.D. Cal. 1987),
ajf'd 883 F.2d 1418, 1424 (9th Cir. 1989).
3
Item 11.b. - Page 72
Indeed, only two federal courts have ever held 3 that the federal VRA requires, rather than:
merely permits, the creation of influence districts in the absence of a showing of intentional discrimination, and both are of questionable precedential value. See Armour v.
Ohio, 895 F.2d 1078 (6th Cir. 1990); East Jefferson Coalition for Leadership & Dev. v.
Parish of Jefferson, 691 F.Supp. 991 (E.D. La. 1988). One of the opinions, Armour v.
Ohio, was subsequently vacated when rehearing en bane was granted, 925 F.2d 987 (6th
Cir. 1991) .. On rem.and the district court implicitly sanctioned such claims again, 775
F.Supp. 1044, 1059 n.19 (N.D. Ohio 1991), but later opinions from the Sixth Circuit
have not treated Armour as binding on this issue, and have, in fact, expressly rejected
influence suits. See Cousin v. Sundquist, 145 F.3d 818, 828 (6th Cir. 1998) ("We do not
feel that an 'influence' claim is pennitted under the Voting Rights Act."); Parker v. Ohio,
2003 U.S. Dist. LEXIS 8745, *11 (S.D. Ohio). The holding of the second case, East
Jefferson Coalition for Leadership, was effectively undennined when the court subsequently amended the finding that necessitated the influence claim: that the minority
community was too widely dispersed in the jurisdiction to constitute a majority in a single-member district. See East Jefferson Coalition for Leadership & Dev. v. Parish of Jefferson, 926 F.2d 487, 491 (5th Cir. 1991) (noting the amended finding that the minority group could indeed constitute a majority in a single-member district).
Given the reluctance of federal courts to enter the political thicket of influence suits, by opening the door to such claims the CVRA greatly expands protection for minority
voting rights and, consequently, the potential for liability of cities and special districts.
The next question, of course, is obvious: what constitutes "influence"? The answer,
unfortunately, is not so obvious. The CVRA does not define "influence" and there is very little federal precedent on which to rely for guidance. As the federal district court for
Rhode Island put it in Metts v. Almond:
"Ability to influence" itself, is a nebulous term that defies precise definition. If it
means only the potential to alter the outcome of an election, it provides no standard at all because a single voter can be said to have that ability. On the other
hand, if it means something more, there does not appear to be any workable
definition of how much more is required and/or any meaningful way to detennine
whether the requirement has been satisfied.
Several other courts have assumed as much, without so deciding, instead ruling on other grounds. See, e.g., Voincivich, 507 U.S. at 154; West v. Clinton, 786 F.Supp, 803,806 (W.D. Ark; l992). 4 The district court in Armour purported to avoid the question of influence claims. See 775 F.Supp. at 1059 n.19 ("We need not reach the question of whether [an influence claim] may be viable under the Voting Rights Act because we find that the plaintiffs have met their burden of demonstrating an ability to elect a candidate of their choice."). But as Judge Batchelder noted in dissent, the Court only avoided the issue by first holding that the plaintiffs need not constitute a majority in the reconfigured district. 775 F.Supp. at 1079 (Batchelder, J., dissenting). In so ruling, "the majority opinion effectively h[eld] that there is a cause of action under Section 2 when political boundaries are drawn so ~at they fail to maximize a minority group's ability to influence the outcome of elections." Id.
4
Item 11.b. - Page 73
217 F.Supp.2d 252, 258 (D.R.I. 2002).
Nevertheless, defining "influence" is the task that a California court may soon face. The
definition may well be case-specific to the demographic and political circumstances in
each defendant jurisdiction, leaving loc~l jurisdictions without clear guidelines.
• Streamlined Proof for Plaintiffs.
Federal voting rights cases under Section 2 require that a successful plaintiff show that
( 1) the minority group be sufficiently large and geographically compact to form a
majority of the eligible voters in a single-member district, (2) there is racially-polarized
voting, and (3) there is white bloc voting sufficient usually to prevent minority voters
from electing candidates of their choice. Thornburg v. Gingles, 478 U.S. 30, 50-51
(1986). If (and only if) all three of these "preconditions" are proven, the court then
proceeds to consider whether, under the "totality of circumstances" the votes of minority
voters are diluted. (42 U.S.C. § 1973(b) [prescribing the totality of the circumstances
standard].)
The CVRA, by contrast, purports to prescribe an extremely light burden on the plaintiff
to establish a violation. Under the CVRA, plaintiffs apparently can prove a violation
based solely on evidence of racially-polarized voting. (Elec. Code §§ 14027 & 14028(e).)
Racially-polarized voting is defined as "voting in which there is a difference, as defined
in case law regarding enforcement of the federal Voting Rights Act (42 U.S.C. Sec.1973
et seq.), in the choice of candidates or other electoral choices that are preferred by voters
in a protected class, and the electoral choices that are preferred by voters in the rest of the
electorate." (Elec. Code § 14026(e).) See Ruiz v. City of Santa Maria, 160 F.3d 543, 552
(9th Cir. 1998) (adopting relatively lenient "separate electorates" test for determining
whether a candidate was a minority-preferred candidate who was defeated by white bloc
voting), cert. denied, 527 U.S. 1022 (1999).
The CVRA appears to eliminate the first precondition that plaintiffs must prove at the
liability stage in federal litigation, that is, that the minority group is sufficiently large and
geographically compact to form a majority in a single member district. (Elec. Code §
14028(c).) Assuming that racially-polarized voting can be proven, the CVRA defers
inquiry into the size and geographical compactness of the minority group and the impact
of those factors on the minority voters' ability to elect or ability to influence elections, to
the remedial phase of the litigation. (See discussion below.)
The CVRA also eliminates the requirement that plaintiffs prove discrimination under the
totality of the circumstances test. (Elec. Code § 14028(e).) This departure from the
federal standards may prove to be the most significant. Some federal courts have been
very lenient in finding racially-polarized voting. They could afford to be so lenient,
5
Item 11.b. - Page 74
because, under federal law, establishing racially-polarized voting is not sufficient to
prove a violation. The other Thornburg v. Gingles preconditions must be established and
a violation must be proven in the "totality of the circumstances" phase of the lawsuit. The
totality analysis then permits a federal judge to take into account such matters as the
degree of the racially-polarized voting and perhaps find that it was not severe enough to
warrant judicial intervention into the electoral processes of a city.
The CVRA does not require any comparable "totality of the circumstances" analyses as
part of the plaintiff's proof. Under what would seem to be a draconian application of the
CVRA, plaintiffs could argue that a jurisdiction is subject to liability if 51 % of minority
voters vote one way, 51 % of non-minority voters vote the other way, and the minority-
preferred candidate loses. Whether a court would sanction such an extreme application of
the CVRA, without the subsequent safety valve of the totality analysis, cannot be known
at this time. Another plausible reading of the CVRA is that the Legislature meant to ease
the burden on plaintiffs but still permit the totality analysis to come in by way of defense.
(Elec. Code § 14028(e) [stating that many of the traditional totality factors are
"probative," but not necessary to establish a violation].)
Despite the ·fact that Section 14028(a) provides that a violation is established if racially-
polarized voting is shown, the legislation does identify at least one other factor that bears
on the question of liability. Specifically the CVRA provides that the extent to which
candidates who ar,e members of a protected class and who are preferred by voters of the
protected class have been elected to the governing body of a jurisdiction is "one
circumstance that may be considered in determining a violation." (Elec. Code § 14028(b)
[emphasis added].) Thus phrased, the relevance of such evidence would not appear to be
limited to the remedial stage, but would affect the question of liability as well. Moreover,
the phraseology suggests that other, unspecified circumstances may be considered on the
question of liability as well. Under the federal scheme, minority plaintiffs whose
preferred candidates have a winning record would find it difficult, if not impossible, to
establish a violation of the federal VRA. Presumably this would be the result under the
CVRA, but the new law is not explicit on that point. Also, the CVRA specifies that the
successful candidate must also be a member of the minority group in order to be taken
into consideration as "one circumstance" that may be considered at the liability phase of
the litigation. The CVRA is silent on whether the election of non-minority persons who
are proven to be the preferred candidates of minority voters can also be considered.
Plaintiffs may well argue that such successful minority-preferred candidates do not count.
• New Remedies.
The most likely remedy in a successful CVRA action would be to order cities and special
districts with at-large, from-district, or mixed electoral systems to change to by-district
systems in which a minority group will be empowered either to elect its preferred
candidates, or influence the election outcome. But judicial remedies under the Act may
6
Item 11.b. - Page 75
not be limited to the imposition of a by-district system. In cases where the minority group
may be too small to form a majority in a single member district (i.e., a district from which
one member of the governing board is elected), the CVRA mandates that a court impose
remedies "appropriate" to the violation. Indeed, the advocates of limited or cumulative
voting systems may see the CVRA as an opportunity to attempt to impose such
experimental remedies in California.
In a limited voting system, voters either cast fewer votes than the number of seats, or
political parties nominate fewer candidates than there are seats. Theoretically, the greater
the difference between the number of seats and the number of votes, the greater the
opportunities for minorities to elect their chosen candidates. Versions of limited voting
are used in Washington, D.C., Philadelphia (PA), Hartford (CT) and many smaller
jurisdictions.
In a cumulative voting system, voters cast as many votes as there are seats. But unlike
winner-take-all systems, voters are not limited to giving only one vote to a candidate.
Instead voters can cast some or all of their votes for one or more candidates. Chilton
County (AL), Alamogordo (NM), and Peoria (IL) all use a version of cumulative voting,
as do a number of smaller jurisdictions. The State of Illinois used cumulative voting for
state legislative elections from 1870 to 1980.
• No-Risk Litigation For Plaintiffs.
The CVRA mandates the award of costs, attorneys fees, and expert expenses to
prevailing plaintiffs. (Elec. Code § 14030.) Prevailing defendants, however, are not
treated so kindly. The CVRA denies not only attorneys fees but also the costs of litigation
to prevailing defendants, unless the court finds a suit to be "frivolous, unreasonable, or
without foundation," an extremely high standard. (Id.)
Furthermore, Calif omia law interprets "prevailing party" more broadly than does the
analogous federal law governing attorneys fees awards for actions brought under Section
2 of the Voting Rights Act. The United States Supreme Court has, as a matter of statutory
interpretation, recently rejected the "catalyst" theory of prevailing parties. Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Servs., 532 U.S. 598, 603-05
(2001 ). The catalyst theory, which the California Supreme Court has previously
approved, permits recovery of attorneys fees if there is any "causal connection" between
the plaintiffs' lawsuit and a change in behavior by the defendant. Maria P. v. Riles, 43
Cal.3d 1281, 1291 (1987). The Maria P. court continued:
"'The appropriate benchmarks in determining which party prevailed are (a) the
situation immediately prior to the commencement of suit, and (b) the situation
today, and the role, if any, played by the litigation in effecting any changes
between the two."' . . . An award of attorney fees under section 1021.5 is
7
Item 11.b. - Page 76
appropriate when a plaintiffs lawsuit "'was a catalyst motivating defendants to provide the primary relief sottght, "' or when plaintiff vindicates an important right '"by activating defendants to modify their behavior."'
Id. at 1291-92 (quoting Folsom v. Butte County Assn. of Governments, 32 Cal.3d 668, 685 n.31 (1982); Westside Community for Independent Living, Inc. v. Obledo, 33 Cal.3d 348,353 (1983)) (internal citations omitted).
Federal law, by contrast, requires some "change [in] the legal relationship between [the plaintiff] and the defendant." Buckhannon, 532 U.S. at 604 (quoting Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792 (1987)). In other words., it is not enough under federal law that the defendant changed its conduct voluntarily-there must be some legally compelled impediment to the defendant falling back into the old ways, .like a judgment or a settlement.
The California Supreme Court has traditionally treated federal precedent interpreting 42 U.S.C. § 1988 as persuasive authority, but it has also held that such federal precedent is not binding with regards to interpretation of state attorneys fee law. See Serrano v. Unruh, 32 Cal.3d 621, 639 n.29 (1982). Thus, the Buckhannon holding will not inevitably lead California to reject the catalyst theory in CVRA litigation as well.
Charter Cities.
Charter cities should not be complacent in a belief that they are immune from successful challenge under the new CVRA. The CVRA, after all, purports to apply to "cities" without making any explicit distinction between general law or charter cities. (Blee. Code § 14026(c).) It is true that a charter can provide for a form of government or electorai process for a city that is different from the general law. A charter city, however, remains subject to the California Constitution and would be prohibited from adopting or maintaining a discriminatory electoral system or electoral practices that violate the equal protection clause or the right to vote. See Canaan v. Abdelnou.r, 40 Cal.3d 703 (1985), overruled on other grounds by Edelstein v. City & County of San Francisco, 29 Cal.4th 164, 183 (2002); Rees v. Layton, 6 Cal.App.3d 815 (1970). Furthermore, California courts have recognized that state statutes can override city charters if they are narrowly-tailored to address an issue of statewide concern, even in the core areas of charter city control like election administration. Edelstein, 29 Cal.4th at 172-174; Johnson v. Bradley, 4 Cal.4th 389, 398-400 (1992). The CVRA expressly provides that it is intended to implement the guarantees of Section 7 of Article I (Equal Protection) and Section 2 of Article II (Right to Vote) of the California Constitution, which are themselves regarded as matters of statewide concern. See Cawdrey v. City of Redondo Beach, 15 Cal.App.4th 1212, 1226 (1993).
8
Item 11.b. - Page 77
It is always possible that the California Supreme Court would decide that, even if preserving the right to vote is a matter of statewide concern, the CVRA sweeps too broadly and cuts too deeply into municipal affairs in violation of the principle 9f home rule. As the Supreme Court has noted, "[T]he sweep of the state's protective measures may be no broader than its interest." Johnson, 4 Cal.4th at 400. Cf Bd. of Trustees. of the Univ. of Ala. v. Garrett, 53 I U.S. 356, 365 (2000) (when Congress seeks to enforce constitutional protections with legislation, the statutory scheme must be congruent and proportional to the injury to be prevented or remedied); City of Boerne v. Flores, 521 U.S. 507 (1997). For example, charter cities could argue that, assuming eradicating the adverse effects of racially-polarized voting in at-large electoral systems is a matter of statewide concern, the CVRA is not narrowly-tailored because the federal VRA presents a scheme more carefully-crafted to weed out those at-large systems in which, under the totality of circumstances> minority voting rights are abridged, and leave in place those at-large systems in which a minority candidate may have simply lost an election.
Vote of the People.
The sole fact that the voters of a city or special district have enacted an at-large electoral system by ballot measure> or rejected a by-district electoral system by ballot measure, will not protect a jurisdiction. Indeed, the latter may increase the risk to the jurisdiction by serving as persuasive proof. of a violation of the CVRA if the by-district system was rejected in an election characterized by a racially-polarized vote.
No Minority Cand'idates.
The fact that no members of the minority group have ever run for membership on the legislative body will not insulate a jurisdiction from CVRA challenge. The CVRA expressly provides that a violation can be shown if racially-polarized voting occurs · in elections incorporating other electoral choices that affect the rights and privileges of members of a protected class, such as ballot measures. (Elec. Code §§ 14028(~) & (b).) Some particularly obvious examples from the last decade might include Proposition 187 ( denying state .services to undocumented immigrants), Proposition 209 (preventing state agencies from adopting affirmative action ,programs), and Proposition 227 (barring the use of bilingual education in California public schools). See Cano v. Davis, 211 F.Supp.2d 1208, 1241 n.37 (C.D. Cal. 2002) (assuming these initiatives may be used to demohstrate racially-polarized voting). But other local measures may also serve the same purpose.
CONCLUSION
California's cities and special districts are entering a new and uncertain era in voting rights law. Much about the CVRA is unclear and federal precedent on key issues appears to have been legislatively overruled. It may require years of litigation to sort it all out. It
9
Item 11.b. - Page 78
is impossible to know now whether California courts will uphold the constitutionality of the CVRA, how they will interpret the new law, or what defenses will be available. Perhaps the "totality of the circumstancesn test will be reinvigorated by way of defense. In the meantime, there is a safe harbor under the CVRA (though still not necessarily under the federal Voting Rights Act): a by-district electoral system.
Jurisdictions with a history of electoral losses by candidates who are members of a minority group should consider analyzing those elections for racially-polarized voting. If polarized voting is detected, these jurisdictions may want to consider whether a change to a by-district electoral system is warranted. D~mands by minority group representatives for a change to by-district elections must be taken seriously, even if the minority group is not numerous enough to form a majority in a new single member district. Changing voluntarily permits the elected representatives and the voters, rather than adverse plaintiffs or a court, to control the districting process and the considerations that will guide the districting. Once the single member districts are in place, the city or special district is in the CVRA safe harbor, even if the districts are not exactly those that plaintiffs would have preferred.
S:\ces\drafts\0823.00 CVRA Article\THE CALIFORNIA VOTING RIGHTS ACT article [07-22-2003 rev).doc
10
Item 11.b. - Page 79
EXHIBIT ''F''
Item 11.b. - Page 80
u
FOR COUNCIL MEETING OF FEBRUARY 21, 2017
COUNCIL AGENDA REPORT
TO: City Council
FROM: City Manager and City Attorney
SUBJECT: RESOLUTION DECLARING THE CITY OF SANTA MARIA'S
INTENTION TO TRANSITION FROM AN AT-LARGE CITY COUNCIL
ELECTED PROCESS TO A DISTRICT-BASED ELECTION PROCESS
PURSUANT TO ELECTIONS CODE SECTION 10010
RECOMMENDATION: ..
That the City Council adopt a resolution declaring its intention to transition from an at-
large City Council election process to a district-based elections process, outlining
specific steps it will take and providing an estimated timeline for doing so pursuant to
Elections Code Section 10010.
BACKGROUND:
The City received a certified letter on December 16, 2016, from Jason Dominguez,
Esq., on behalf of his client Hector Sanchez, an unsuccessful candidate for City Council
in the November 2016 election, asserting that the City's at-large electoral system
violates the California Voting Rights Act, codified at California Elections Code sections
14025-14032 ("CVRA"). Mr. Dominguez claims "polarized voting" may be occurring
and threatens litigation if the City declines to adopt district-based elections.
The CVRA was signed into law in 2002. The law was motivated, in part, by the lack of
success by plaintiffs in California in lawsuits challenging at-large electoral systems
brought under the Federal Voting Rights Act ("FVRA"). In fact, the City of Santa Maria
had successfully defended a FVRA lawsuit in the early 19901s brought by the Mexican
American Legal Defense and Education Fund. This litigation cost over $1 million to
defend and to~k ten years to resolve in the City's favor.
The passage of the CVRA made it much easier for plaintiffs to prevail in lawsuits
against public entities that elected their members to its governing body through "at-
large" elections with the ultimate goal to transition to "district-based" elections. By way
of background, in a district-based election system, a candidate must live in the district
he or she wishes to represent.
It is staff's understanding that no such FVRA lawsuits have been filed in California since
2000. Accordingly, all voting rights lawsuits in California have been filed under the
CVRA since its passage. Under the CVRA, to prove a violation, plaintiffs must only
demonstrate that there is "racially polarized voting." This occurs when there is a
Item 11.b. - Page 81
difference between the choice of candidates preferred by voters in a protected class
and the choice of candidates preferred by voters in the rest of the electorate. Plaintiffs
in other litigation have taken the position that the CVRA does not require a showing of
discriminatory intent or an actual electoral injury. They have further argued that the
CVRA does not require proof that racially polarized voting actually resulted in the defeat
of a group's preferred candidate. No appellate court has yet ruled on these issues.
Cities throughout the State have increasingly been facing legal challenges to their uat-
large" systems of electing City Council members. Almost all have settled claims out of
court by essentially agreeing to voluntarily shift to district-based elections, while others
have defended CVRA challenges through the courts. Ultimately, these cities have either
voluntarily adopted, or have been forced to adopt, district-based elections. The
exception is the City of Santa Clarita that resolved the CVRA action filed against it by
agreeing to change the date of its general municipal election to November of even-
numbered years.
Cities that have attempted to defend their existing "at-large" system of City Council
elections in court have incurred significant legal costs, including attorneys' fees incurred
by plaintiffs. Awards in these cases have reportedly ranged from about $400,000 to
over $3,500,000. When sued, the settlements entered into by cities typically have
included paying the plaintiff's attorney fees. For example, in February 2015, the City of
Santa Barbara reportedly paid $800,000 in attorneys' fees and expert costs to settle
their CVRA lawsuit. Another example is the City of Palmdale that incurred expenses in
excess of $4.5 million in its unsuccessful attempt to defend against a lawsuit brought
under the CVRA. Moreover, what is most concerning is that staff is unaware of any city
that has prevailed in defending its "at-large" system of election under a claim filed by
any individual or group under the CVRA. Accordingly, staff has concluded that the
public's best interest is in preserving and protecting vital general fund revenues from
being unnecessarily expended (given the low probability of defending against a CVRA
lawsuit) and that this interest outweighs the public's interest in maintaining the current
at-large voting system.
DISCUSSION:
Accordingly, after much analysis and in-depth conservations with those most familiar
with these types of litigation matters, staff is recommending that the City Council adopt
a resolution declaring its intention to transition from at-large to district-based elections
following the procedures required by Elections Code section 10010, as amended by AB
350, to establish voting districts. Staff makes this recommendation due to the
extraordinary costs to successfully defend against a CVRA lawsuit and the fact that no
apparent city has successfully prevailed against a CVRA lawsuit, and that the public
interest would best be served by transitioning to a district-based electoral system.
While the City has a sustained history of electing Latinos/as to the City Council, the
outcome of litigation is always uncertain. Unlike other cities where at-large elections
have prevented Latinos from electing candidates of their choice, the election history for
the Santa Maria City Council has demonstrated that Latino candidates have been
2
Item 11.b. - Page 82
regularly elected. Since 1996, at least one Latino/a has been elected to the City
Council in each election except the November 2012 election where a Latina candidate
(Waterfield) lost by only two votes. In all, ten Latinos/as have been elected to the City
Council in the last twenty years. In addition, partly because of appointments made by
the City Council to fill unexpired terms, the City Council has been represented by a
Latino majority from 2002 until 2010 and the current City Council is a Latino elected
majority. Not withstanding the aforementioned history of being able to elect Latinos to
the City Council, the CVRA essentially makes any at-large election vulnerable to
challenge with a low probability of successfully defending against such a challenge.
Staff estimates that the cost to defend this lawsuit would exceed $1,000,000 even if it
were successful, and would likely exceed $2,000,000 if the plaintiff prevailed and the
City was ordered to pay plaintiff's attorneys' fees. These attorney fees and costs would
be a General Fund liability which would be a significant unexpected expense that could
not come at a worse time since the City already has a multi-million dollar structural
budget deficit AND pension-related expenses continue to escalate.
It should be noted that Government Code section 34886 permits the legislative body of
any city to adopt an ordinance establishing election of members of th~ legislative• body
by district. AB 350 was recently adopted by the State Legislature and became effective
on January 1, 2017, and amended Elections Code section 10010 to place a cap of a
maximum of $30,000 on attorneys' fees that a plaintiff would be entitled to recover if the
target city voluntarily adopted an ordinance to establish voting districts either before or
after receiving notice of a CVRA violation. In addition, AB350 prohibits a plaintiff from
filing a CVRA lawsuit within 90 days of a city's adoption of a resolution declaring its
intention to transition to district-based elections. Accordingly, should the City Council
adopt the proposed resolution, the maximum the City will have to reimburse Mr.
Dominguez in attorneys' fees and costs is $30,000, and plaintiff would be prohibited
from filing a CVRA lawsuit until May 22, 2017.
Alternatives:
1. The City Council may elect to place this issue on the ballot and let the electorate
decide if they prefer district-based elections. However, even if the voters
rejected district-based elections, the City would be vulnerable to a CVRA lawsuit
if racially polarized voting is occurring in the City.
2. The City Council may direct staff to defend against any CVRA lawsuits that may
be filed. This option will be very expensive to defend, and even if successful,
would expose the City to an award of costly attorneys' fees.
Fiscal Considerations:
There will be significant staff time needed to transition to district-based elections
because of the staff time that will be incurred for the five (5) public hearings that will be
required in addition to the cost for a demographics and elections consultant and special
legal counsel. Should the City Council concur with staff's recommendation, the City will
only be required to reimburse plaintiff for its attorney's fees and costs up to $30,000. In
addition, staff expects roughly a $10,000 increase in election costs for district-based
3
Item 11.b. - Page 83
elections during each of the upcoming election cycles. These fiscal impacts are
necessary and unavoidable if the Council transitions to district-based elections.
Im pact to the Communi ty :
The decision to change from at-large to district-based voting may have a substantial
impact on the community since the City Council has been elected at-large since the
City's incorporation in 1905. There may be a profound and noticeable impact to the
community if the City adopts district-based elections and confusion until district-based
elections are fully implemented in 2020. As proposed, two council seats will be elected
by-district in the 2018 election and two or three council seats {pending the outcome of
the five public hearings) in the 2020 election after the current incumbet1ts have served
their full terms. In some situations, the Mayor may be elected at-large, but all other
members of the City Council must reside in the district they represent. The decision
whether to establish four voting districts with the Mayor elected at-large, or five voting
districts is one of the topics that will be decided upon by the City Council as a result of
the minimum of five (5) public hearings that will be held as required by California
Election Code ection 10010 should it adopt the proposed resolution.
4
Item 11.b. - Page 84
EXHIBIT ''G''
Item 11.b. - Page 85
The Politics of Latino Education: The Biases of
At-Large Elections
David L. Leal
The University of Texas at Austin
Valerie Martinez-Ebers
Texas Christian University
Kenneth J. Meier
Texas A&M University
This paper investigates the determinants and c-0nsequences of Latino political representation in the
field of K-12 education. The first task is to examine the association between Latino population and
the Latino presence on school boards. We then investigate if Latino representation is affected by the
electoral structure of school boards, as scholars have reached differing conclusions on whether at-
large and ward systems hinder or enhance minority descriptive representation. The next ste-p exam-
ines the consequences of Latino representation, specifically whether board membership is associated
with the share of Latino school administrators and teachers. The regression results show that Latino
population positively affects Latino board representation, but that at-large systems hinder descriptive
representation. The primary determinant of Latino administrators is Latino school board member-
ship, and the primary determinant of Latino teachers is Latino administrators. In sum, at-large elec-
tions negatively influence Latino educational representation, which produces a ripple effect that
ultimately reduces the share of Latino teachers .
Latinos are now the largest minority group in the United States, but numbers
alone are no guarantee of political influence. The traditional view of how minori-
ties gain access to the benefits of the U.S. political system is via education, but
research has Jong established that access to education itself is inherently politi-
cal. The Latino community has for many generations struggled for educational
equity but has faced numerous structural and other impediments. We therefore
investigate the political dynamics of Latino education in the field of K-12 edu-
cation, a subject of major academic and policy consequence.
This paper specifically will examine the politics of Latino representation on
school boards and whether such descriptive representation has substantive effects.
The first question is whether Latino population size is associated with the Latino
presence on school boards. We then investigate if such representation is affected
by the electoral structure of school boards because scholars disagree whether at-
THE JOURNAL OF POLITICS, Vol. 66, No. 4, November 2004, Pp. 1224-1244
@ 2004 Southern Political Science Association
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Item 11.b. - Page 86
The Politics of Latino Education: The Biases of At-Large Elections 1225
large and ward systems influence minority representation. Third, we test whether
such descriptive representation influences the proportion of Latino administra-
tors and teachers. Because the most recent prior research on these questions used
data from the late 1980s, this paper provides needed evidence on how current
conditions have changed given the dramatic growth in the Latino population.
School board representation is an integral aspect of the political system. School
boards in America are the most local electoral unit in the federal system. Almost
100,000 people serve on 15,000 boards, and they constitute the largest bloc of
elected officials in.America. Overseeing the education of forty-five million public
school students, they are entrusted with annual school expenditures of approxi-
mately three hundred billion dollars (Toch and Glast1is 1994).
Boards are involved in all aspects of school policy. They hire and fire super-
intendents, set the curricula, decide spending priorities, and adopt reform plans.
Although many decisions are in practice left to superintendents and other admin-
istrators, school boards are tasked to oversee these expe1ts (Wirt and Kirst 1989).
Boards, therefore, shoulder much responsibi1ity for the quality of public educa-
tion in America.
The question of Latino representation in school policymaking might be "less
urgent if Latino educational achievement were high, but this is far from the case.
While education may be the be.st way to escape poverty and realize the Ameri-
can dream, many Latinos find their hopes prematurely dashed through low edu-
cational achievement. A report by the White House Initiative on Educational
Excellence for Hispanic Americans (1999) documents how Latino under-
achievement in education begins as eady as kinderga1ten and continues through
higher education. By the age of nine, Latino children perform below their non-
Latino peers in the subjects of reading, mathematics, and science. Their overall
scores on the National Assessment of Educational Progress (NAEP) are also con-
sistently below average. One-third of Latino students between the ages of 15 and
17 are enrolled below grade level, and Latinos are less likely to take college
preparatory courses in high school.
The high Latino dropout rate is well known: 1998 data show a dropout rate of
30%, in comparison to 14% for African Americans and 8% for Anglos. Overall,
Latinos perform lower than most groups on standardized tests, and they have the
lowest high school graduation rates and four-year college enrollments of all racial
and ethnic groups in the country (Riley and Pompa 1998; Secada et al. 1998).
Latinos also attend schools that are increasingly segregated in terms of race,
ethnicity, and class (Orfie]d and Yun 1999). They often face institutional racism
and cultural biases at school in terms of programming, curriculum, and tracking
and ability grouping practices (Carrasquillo 1994; Grossman 1995; Spring 2000).
In swn, Latinos are arguably the most educationally disadvantaged of an groups
in the United States today (Riley and Pompa 1998).
Whether the dfamal state of Latino education is related to political dynamics
is a key question for political scientists to investigate. Meier and Stewart was one
of the first investigations of this possibility. Using regression analysis and con-
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Item 11.b. - Page 87
1226 David L. Leaf, Valerie Martinez-Ebers, and Kenneth J. Meier
trolling for intermediary factors, they discovered that Latino students were
subject to more suspensions and expulsions, were underrepresented in gifted and
talented classes, and were oven-epresented in special education classes. Not only
were such practices associated with lower student achievement, but they also
served as "a substitute for segregation" (1991, 197).
Meier and Stewart also discovered that such treatment was associated with
community political power. Most importantly, Latino representation on school
boards was associated with better educational conditions. In districts with more
Latino representation, Latino students experienced greater acce.ss to equal edu-
cation and less "second-generation" discrimination. There also appeared to be a
ripple effect, whereby more Latino school board members led to more Latino
school administrators, which in tum led to more Latino teachers.
Others have found evidence that Latino representation on school boards is
associated with policy outcomes of interest to this community. Leal and Hess
(2000), for instance, found that the percentage of school board members who
are Latino is positively associated with funding for bilingual education
programs, even after controlling for objective student need for bilingual educa-
tion. Board representation is, therefore, not just symbolic or of interest to a
small number of activists but is inseparable from the aspirations of the larger
community.
The first empirical part of this paper investigates the relationship between
Latino population and the Latino presence on school boards. The overall litera-
ture on representation discusses two general linkages between constituents and
representatives. The first is indirect representation, whereby a legislature may col-
lectively represent the people even if there is no clear link between specific leg-
islators and specific constituents (Weisberg 1978). Policy outcomes are therefore
congruent with public opinion, even if elected officials are not actively trying to
represent their constituents.
The second form of representation is direct. This takes place when the votes
of a legislator are linked to the interests of his or her constituents. Elected offi-
cials in this scenario take seriously the delegate view of representation, as
opposed to the trustee view exemplified by Edmund Burke in his famous letter
to Bristol. Pitkin (1967) named this substantive representation and contrasted it
with descriptive representation. The latter takes place when a constituency elects
a representative who shares key traits but not necessarily policy views.
This paper begins by examining the descriptive representation of Latinos on
school boards. While descriptive representation does not always lead to substan-
tive representation, voters generally see a connection. This is not to say that Anglo
school board members cannot adequately represent Latino constituencies, as
many have undoubtedly done so. In a similar way, a lawyer may be able to rep-
resent a district of farmers. Farmers, however, may want their elected represen-
tatives to share an agricultural background. Not only would the latter likely know
more about farming, but they could be better trusted to fight for farm interests
behind closed doors in Washington.
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Item 11.b. - Page 88
The Politics of Latino Education: The Biases of At-Large Elections 1227
This issue of trust is particularly important in the study of representation. Hall
noted that many key legislative activities take place out of public view, such as
"Building a coalition for a legislative package, drafting particular amendments,
planning and executing parliamentary strategy, [and] bargaining with or per-
suading colleagues to adopt one's point of view" (1996, 2). Constituents must
trust that members are acting in a way that furthers their interests, as there are
few ways for them to monitor such legislative behaviors.
Bianco further observed that "many kinds of behavior that are not usually
thought of as rational choices, such as voters' desire to be represented by
'someone like them,' are the product ofa systematic, predictable calculus-more-
over, a calculus aimed at securing favorable policy outcomes" (1994, ix). Voters
therefore "focus on attributes because they cannot be the product of calculation
and provide a clearer signal of a candidate's policy concerns" (62). In this way,
descriptive representation is a shortcut voters use to increase the likelihood of
their interests being served.
Electing a member of one's group to office also has symbolic value. As David-
son and Oleszek wrote, "When a member of an ethnic or racial minority goes to
Congress, it is a badge of legitimacy for the entire grouping. Such legislators
speak for people like them throughout the nation" (2000, 133 ). What is true for
Congress at the national level is also true for school boards at the local level.
Prior studies of Latino representation in local political entities have docu-
mented its low levels. Scholars usually derive a statistic of group representation
through the Engstrom and McDonald (1981) method, which regresses minority
population on minority descriptive representation. Taebel (1978) found a Latino
representation index of .44 for 60 large urban city councils, meaning an under-
representation of 56%. Karnig and Welch (1979) found a similar city council ratio
of .45 for 124 southwestern cities. Fraga, Meier, and England (1986) noted a ratio
of .77 for 35 school districts in very large cities, and Meier and Stewart (1991)
found it was .86 for a larger population of districts.
The second part of this paper examines whether specific types of electoral
mechanisms affect the level of Latino descriptive representation. Historically,
such representation was impeded by a variety of legal and extralegal tactics. Lit-
eracy tests, poll taxes, and simple intimidation were effective tools against the
electoral participation of Latinos as well as African Americans and poor Anglos.
These have largely passed from the political scene, but election laws originally
adopted with discriminatory intent may still affect political representation.
School board membership is chosen through three means: elections by ward,
elections at-large, and by appointment. Progressive reformers at the turn of the
twentieth century advocated at-large elections as one prong in a larger effort to
isolate school boards and city councils from the influence of political parties,
immigrants, those of lower socioeconomic status, and the vagaries of the demo-
cratic process generally (Tyack 1974). This refom1 proved a substantial obstacle
to minority communities, as minority candidates often lack the resources to
launch district-wide campaigns and find it difficult to attract Anglo votes.
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Item 11.b. - Page 89
1228 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier
In recent decades, underrepresented minority groups used the voting Rights
Act of 1965 as "the legal f0tmdation for creation of district-based elections
to replace at-large elections to city councils and other multimember bodies"
(Bezdek, Billeaux, and Huerta 2000, 209). The above authors described the
example of Corpus Christi, where the efforts of the Mexican American Legal
Defense and Education Fund (MALDEF) led to the replacement of eight at-large
city council seats with five ward seats and three at-large seats.1
Whether at-large elections have discriminatory effects on minority representa-
tion is the subject of debate in the political science literature, and one with impor-
tant practical ramifications. Some scholars have found that ward systems are
positively associated with Latino representation on school boards (Davidson and
Korbel 1981; Meier and Stewart 1991; PoJinard, Wrinkle, and Longoria 1990,
1991 ). Others, however, have discovered no statistically significant effects (Fraga,
Meier, and England 1986; Welch and Karnig 1978).
These varying findings are also present in different decades. Using data largely
from the l 980s, Fraga, Meier, and England (1986) arrived at different conclu-
sions than did Polinard, Wrinkle, and Longoria (1991) and Meier and Stewart
(1991 ). Studies using data from the 1970s (Davidson and Korbel J 981 ; Welch
and Kamig 1978) similarly arrived at opposite conc1usions. hi light of these dif-
ferences across time, it is desirable to investigate representational dynamics with
a contemporary survey.
A new study is also needed because the Latino population is located :in a very
different social and political space than was the case in the 1970s and 1980s. The
2000 Census revealed how this group is expanding throughout the United States,
and many educational jurisdictions that have historically educated few Latino
children are now encountering significant and growing numbers of such students.
The state with the fastest-growing Latino population, for instance, is not Texas
or California but North Carolina. The Latino population of this state increased
by just over 440% from 1990 to 2000, growing from 69,020 to 372,964 people.
The next largest growth rates were found in Arkansas (337%), Georgia (324%),
and Tellllessee (284%). The issues of Latino representation on school boards and
the quality of education received by Latino children are therefore relevant to a
growing number of states and regions. Consequently, a study using current data
is vital to understanding how Latino educational representation fares in this new
and expanding context.
The above dynamics are a larger and more noticeable continuation of previous
trends. As Meier and Stewart noted, the school districts in their sample "have not
had a stable enrollment composition over time. The average district increased its
Hispanic enrollment by about ten percentage points since 1968 (Table 1-3). Some
districts, of course, have become substantially Hispanic during this time period"
1 Many school boards have incorporate-d both ward and at-large elections under the theory that
minorities can benefit from coalition building and win some of the at-large seats. McDonald and
Engstrom (1992), however, suggested that this did not transpire in practice.
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Item 11.b. - Page 90
The Politics of Latino Education: The Biases of At-Large Elections 1229
(1991, 31). They surveyed districts with at least 5,000 students, of whom at least
5% were Latino. Their total number of usable observations was 145; in compar-
ison, our survey includes 857 such districts. Given these Latino population trends,
additional studies might also be useful after each future census.
There is also a contemporary interest in Latinos that was largely absent in pre-
vious decades. Latino influence is now more strongly felt and more frequently
commented upon in both politics and popular culture. This suggests that the role
of Latinos in the contemporary po1itical system may be qualitatively as well as
quantitatively different than in previous decades.
In addition, given the extensive litigation over city council districts in recent
decades, school boards are also probably the last place where at-large districts
are still permitted in the presence of racial polarization. For those interested in
whether and how electoral structures affect the representation of minorities on
political bodies, school boards are the only arena to study. This was much less
the case in the 1970s and 1980s, so a new study of school boards is the best way
to investigate whether and how electoral structure can influence representation.
A related literature explores the impact of electoral systems on minority rep-
resentation on city councils. Davidson and Korbel (1981) and Bezdek, Billeaux,
and Huerta (2000) argued that ward districts increase Latino representation. On
the other hand, Zax ( 1990) argued that residential segregation was a more impor-
tant determinant than electoral method in the election of Latino officials.
MacManus (1978) found that at-large plans did not impair the city council
representation of African Americans and the Spanish speaking, although the
details of the system and the socioeconomic environment were important. Taebel
(1978) argued that city council size was more relevant for Latino representation
than the electoral system. Rabinovitz and Hamilton (1980) suggested that a mixed
system was better than a ward system for the representation of blacks on city
councils.
Some have argued that electoral systems affect the representation of African
Americans but not Latinos. Karnig and Welch (1979) and Welch (1990) found
this was the case for city councils. One explanation is that Latinos are not sub-
jected to the same degree of residential segregation as African Americans (Lopez
1981).
The third part of this paper investigates the consequences of descriptive rep-
resentation, specifically whether the share of Latino board members is associated
with the share of Latino school district employees. Administrators and teachers
influence the quality of education received by students, and teachers in particu-
lar wield much power in their classrooms as "street level bureaucrats" (Lipsky
1980; on the substantive issue see Hess and Leal 1997 and Meier and Stewart
1991).
There is widespread agreement in the professional education community that
minority students gain academically when they are taught by minority teachers.
Empirical evidence for these propositions is less common than their assertion,
however, although a growing number of scholars are testing this hypothesis in a
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Item 11.b. - Page 91
1230 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier
variety of settings. Hess and Leal (1997) examined the relationship between
teacher race/ethnicity and student achievement in large urban school districts.
They found that the proportion of minority teachers was positively associated
with the college matriculation of all students. While they noted that the hiring of
minority teachers might serve as a proxy for unobserved school conditions rele-
vant to student achievement, the article provides intriguing evidence that minor-
ity teachers may promote the learning of both minority and Anglo students.
Meier, Wrinkle, and Polinard (1999) and Meier et al (2001) tested how the
percentage of minority teachers was associated with the student pass rates of stan-
dardized exams required by the state of Texas. They found that pass rates were
higher for both minority and Anglo students in districts with a larger share of
minority teachers (although see Nielsen and Wolf 2001). Meier, Wrinkle, and
Polinard (1999) suggested an explanation based on discriminatory hiring prac-
tices. Districts less focused on the quality of educators than on their race will on
average hire less competent teachers, thereby negatively affecting the educational
outcomes of all students.
Dee (2001) argued that this question needed a randomized experimental
methodology to accurately understand whether racial dynamics were factors in
student achievement. He examined test score data from the Tennessee Project
STAR (Student Teacher Achievement Ratio) class-size experiment, finding sig-
nificant math and reading improvements among students randomly provided
same-race teachers. There are also a number of more qualitative studies of Latino
student achievement that highlight the importance of Latino faculty and staff
(Garcia 2001; Nieto 1999; Reyes, Scribner, and Scribner 1999; Valdes 1996).
Substantial evidence also suggests that the Latino community wants more
Latinos teaching their children (Nieto 1999; Romo and Falbo 1996). While the
above debate asks whether minority teachers improve the educational outcomes
of minority and Anglo children, this dynamic is less important from the per-
spective of representation theory. Many schola1·s have investigated whether
elected officials and political institutions are responsive to constituents, but there
is less discussion of the more difficult question-whether constituent wishes are
objectively in their best interests. The presence of minority teachers is, therefore,
an important indicator of political responsiveness to minority communities
regardless of its effect on minority students.
The only previous research on board representation and the minority presence
in teaching faculties and educational administrations is Meier and Stewart ( 1991 ).
They found the share of Latino school board members was positively associated
with Latino administrators but not with Latino teachers. They did find, however,
a positive con-elation between Latino administrators and Latino teachers.
Data and Methods
Data for this paper derive from three sources. Information on school board
selection structures, school board ethnicity, administrator ethnicity, teacher eth-
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Item 11.b. - Page 92
The Politics of Latino Education: The Biases of At-Large Elections 1231
nicity, and student ethnicity were obtained from an original survey. All school
districts with more than 5,000 students were sent mail surveys in June 2001.2
Nom·espondents received two follow-ups by mail. Up to six phone calls were then
placed to nonrespondents in an effort to contact as many of the districts as pos-
sible; the phone interviews collected information only on the school board vari-
ables. A final attempt was made via email.
Of the 1,831 surveyed districts, 1,751 provided data on school boards (95.6%)
and 1,532 (83.7%) on teachers and administrators. The actual numbers in the
regression analysis are somewhat lower due to missing data for other variables.
Nonrespondents on the electoral information were no different from respondents
in terms of size of district, ethnic distribution in the district, and similar census
data on which comparisons could be made. For the teacher and administrator data,
district sizes were the same but nonrespondents were from locations with slightly
smaller Latino populations. Given that the distinction between respondents and
nonrespondents could not explain as much as 1% of the variance in any variable
where measures existed, we are confident that any selection biases in the survey
are slight and do not affect the results presented. 3
Population :figures and other demographic variables for 2000 were available
from the 2000 census. Additional information used to check the accuracy
of student enrollment figures on the survey were from the U.S. Department of
Education (2001).
Findings
School Board Representation
The first step in assessing the level of descriptive representation is to examine
the simple relationship between Latino population and Latino school board rep-
resentation (both variables are expressed as a percentage of the total) as suggested
by Engstrom and McDonald (1981 ). This equation essentially predicts the
expected value of representation for a given level of population. The first column
of Table 1 presents this seats-population relationship for all districts. The level of
explained variation is consistent with past models for school board representa-
tion reported by Meier and Stewart [.60 (1991, 92)] and Fraga, Meier, and
England [.77 (1986)]. Both previous studies, however, excluded districts with
2 Districts with more than 5,000 students were surveyed for two reasons. First, these districts
educate the overwhelming majority of Latino students, as they are located in the areas with the largest
Latino populations. Our school districts had a total Latino population in 2000 of32.84 million. which
is 93% of the 35.3 million Latinos in the overall population. Second, there are significant data col-
lection problems in many of the smaller distiicts. They often do not keep the type of records that
larger districts do, particularly in terms of EEO data, as it is the larger districts that are regularly sur-
veyed by the EEOC.
3 We also checked to see if the districts lost from the sample because of missing data were differ-
ent from those included in the analysis. The only difference we can find is that the districts with
missing data are slightly smaller than other districts, which is not a major concern.
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Item 11.b. - Page 93
1232 David L. Leal, Valerie Martinez-Ebers, and Kenneth J Meier
TABLE 1
The Representation Relationship: Latino School Boards
Dependent variable = Percent Latinos on School Board
All Minority Majority Five Percent +
Variable Districts Districts Districts Latino
Intercept -3.66 -1.36 -68.54 -8,97
(13.05) (6.12) (7.54) (13.57)
Population .71 .43 .72 .84
(57.48) (40.44) (13.50) (40.44)
R-squared .66 .33 .64 .66
Standard error 9.54 6.89 19.20 12.72
F 3,304.37 793.62 182.14 1,635.55
N of cases 1,739 1,633 106 857
Numbers in parentheses are t-scores.
fewer than 5% Latino students; Fraga et al. also only included districts with more
than 25,000 students.
Two coefficients from the first regression in Table l merit discussion. First, the
slope coefficient reveals that for each one percentage point increase in Latino
population, Latino representation on the school board increases by . 71 percent-
age points.4 In short, the translation of population into representation is only 71 %
effective. This figure should not be interpreted by itself as the precise estimate
of underrepresentation, however. The intercept (-3.66) is negative and significant,
thereby indicating a threshold effect. At low levels of population, increases in
Latino population have no influence on expected representation levels. Only after
a threshold is breached does population predict a positive value for expected rep-
resentation. That "threshold" can be estimated by using the regression equation
to predict the level of population where estimated representation will be at least
zero. fu the present situation, the threshold is 5.2%.
The findings in the first column suggest that the relationship between repre-
sentation and population is not linear. The next two columns therefore show the
same regression for districts where Latinos are a minority of the population and
districts where they are a majority of the population. Previous arguments about
electoral structure and representation presuppose the group in question, in this
4 We use population as the base for all our regressions rather than voting-age population, estimated
population who are citizens, or school enrollment for both an empirical reason and a normative reason.
Empirically, the measw-es are highly correlated. The R 2 between voting-age population and popula-
tion is .9963, and between enrollment and population it is .9631. Using other measures of popula-
tion changes the size of the coefficients but has no impact on the statistical significance of any
findings. The population numbers also predict representation better than any of the other three meas-
ures. In normative terms, to paraphrase the Supreme Court, these electoral units were created to rep-
resent populations, not citizens or school age children or even voting-age populations.
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Item 11.b. - Page 94
The Politics of Latino Education: The Biases of At-Large Elections 1233
case Latinos, constitutes a minority of the total population. After all, if Latinos
have a voting majority, then they can use at-large elections in the same manner
as Anglos do when there is an Anglo majority.
The . 71 coefficient for all districts drops to .43 in minority districts but jumps
to . 72 in majority districts. Comparing these figures directly is somewhat mis-
leading simply because the intercepts are so dramatically different. Majority dis-
tricts, for example, have an expected representation value of 17.5% for districts
that are 50% Latino but 100% for districts with 98% or more Latinos. Both sets
of :findings strongly suggest that nonlinear estimates of the expected value ofrep-
resentation should be examined.
Before moving to the nonlinear estimates, the last column provides a compar-
ison to the Meier and Stewart results by limiting the analysis to districts with at
least 5% Latino population. Two things are immediately apparent. The represen-
tation coefficient increases to .84, essentially the same as the .86 coefficient
reported by Meier and Stewart (1991, 92). The difference in intercepts in the two
analyses, however, suggests caution in comparing these two values.
Table 2 estimates nonlinear equations linking population to representation. The
differences between minority and majority jurisdictions are once again dramatic .
.bi minority-Latino districts, the population-squared term is significant and adds
additional explanation to the overall equation. In majority districts, the nonlinear
terms induce massive collinearity so that neither coefficient is significant and the
level of explained variation has not changed at all.
These findings suggest that when Latinos are a minority of the population, the
population-representation relationship is nonlinear, with larger percentages
TABLE 2
The Nonlinear Population-Representation Relationship:
Latino School Boards
Dependent variable = Percent Latinos on School Board
Variable Minority Districts
Intercept -1.3619 .0135
(6.12) (.05)
Population .4315 .0683
(28.17) (1.45)
Population Squared .0096
(17.33)
Adjusted R-squared .33 .35
Standard error 6.89 6.76
F 793.62 445.75
N of cases 1,633 1,633
Numbers in parentheses are t-scores.
Majority
-68.54
(7.54)
1.72
(13.50)
.64
19.20
182.14
106
Tolerances for nonlin.ear equations, minority districts . JO, majority districts, .0061.
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Districts
-46.31
(.81)
1.08
(.66)
.00
(.39)
.63
19.20
90.41
106
Item 11.b. - Page 95
1234 David L. Leal, Va.lerie Martinez-Ebers, and Kenneth J Meier
getting significantly more representation than smaller percentages. The insignif-
icant intercept for minority districts also eliminates the problematic threshold
effect of the linear estimation. The insignificant linear term in this model sug-
gests that it can be dropped from the analysis with no loss of information. The
best interpretation for majority districts, however, is that the relationship between
Latino population and Latino representation remains linear.
The now traditional way to assess the bias of electoral systems is to run an
interaction between the various selection plans and population within a single
regression (Engstrom and McDonald 1981). As noted above, there are three
major selection plans for school districts: at-large systems, ward systems,
and appointed systems. For those districts with less than 50% Latinos, the
current sample contains 985 pure at-large systems (where all board members
are elected at-large), 443 pure ward systems, and 53 pure appointed systems.
The remaining 163 systems contain mixed combinations of the three selection
types.
We created three variables for each district: the proportion of members elected
from wards, the proportion elected at large, and the proportion appointed. Scores
of 1.0 on any of these variables indicate a pure system, and lower scores indicate
fewer members selected in the manner indicated by the variable. This process
permits us to retain the 163 districts that do not have pure selection systems; the
precise characteristics of these mixed systems are the subject of future research.
To continue our distinction between majority and minority distiicts, these equa-
tions are estimated for both sets of districts with the hypothesis that structure
matters when Latinos are a minotity but does not matter when they are a
majority.
Table 3 investigates this relationship for districts where Latinos are a minor-
ity. Adjusting for the nonlinear population coefficient, the regression contains five
variables: Latino population squared, the ward selection percentage, the
appointed selection percentage, ward selection multiplied by Latino population
squared, and appointed selection multiplied by Latino population squared. This
regression equation can then be used to derive representation estimates for each
of the three pure systems.
Because several of the variables reduce to zero when other systems are in place,
three equations can be derived from the results in Table 3:
At-Large Elections Representation = .5283 +. 0094 x Population2
Ward Elections
Appointed
Representation= -.1743+.0148 xPopulation2
Representation= .8701 + .023 x Population 2
Because the various intercepts are not different from the at-large intercept, they
can basically be ignored in discussions. Suffice it to say that while the at-large
intercept is significantly different from zero, its size is trivial (that is, at 0% Latino
population, the expected value of representation is .5% ). The larger size of the
population-squared coefficient for ward elections shows that they generate higher
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Item 11.b. - Page 96
The Politics of Latino Education: The Biases of At-Large Elections 1235
TABLE 3
The Detrimental Impact of At-Large Elections: Latino School Boards
Dependent variable = Percent Latinos on School Board
Variable Slope t tol. Slope t tol.
Intercept .5283 2.25 .5282 2.25
Latino Population Squared .0094 21.45 .70 .0094 21.53 .70
Ward System -.7026 1.77 .83 -.7054 1. 78 .83
Ward x Population Squared .0054 6.17 .67 .0054 6.20 .67
Appointed System .3418 ,33 .79 -1.2978 1.11 .63
Appointed x Population Squared .0136 5.91 .78
Appointed x Population .5112 6.21 .62
R-squared .38 .38
Standard enor 6.61 6.60
F 201.41 202.60
N of cases 1,628 1,628
Analysis includes districts only with less than 50% Latino population.
1evels of Latino representation than at-large systems. Appointed systems gener-
ate the largest levels of representation, as found previously by Meier and Stewart
(1991 ). For instance, with a Latino district population of 5 %, expected Latino
representation is .8% in at-large systems, .2% in ward systems, and 1.4% in
appointed systems. With a Latino population of 25%, the respective numbers
increase to 6.4%, 9.1 %, and 15.2%; at 45%, the figures are 19.6%, 29.9%, and
47.2%.
The clear conclusion from Table 3 is that both electoral systems systematically
underrepresent Latinos when they are a minority of the population, but at-large
elections are significantly more detrimental to Latino representation than ward
elections. It is unclear why some prior research found a lack of bias in at-large
systems, but one possibility is that analyses that do not distinguish between
majority and minority Latino districts may sometimes produce incorrect results,
It is also possible that past research indicating differential ward and at-large
effects was substantively correct but derived using incorrect models. Only a
reanalysis of the data from previous projects would detennine if this is the case.
We might also investigate some additional dimensions of the school board rep-
resentation process, as Table 3 incorporated only two types of independent vari-
ables: population and selection plan. Such a regression overlooks the fact that
Latinos are generally poorer, less well educated, less likely to own homes, and
less likely to be citizens-all factors that affect voter turnout (Leighley 2001 ).
Several demographic variables were therefore added to the equation in Table 3:
percent of Latinos with college degrees, percent noncitizens, percent living in
poverty, and median Latino family income. This new regression, which is not pre-
sented because of space considerations, shows that only the percentage of Latinos
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Item 11.b. - Page 97
1236 David L. Leal, Valerie Martinez-Ebers, and Kenneth J Meier
who were noncitizens added any statistically significant explanation to the equa-
tion, and in that case the substantive impact was very small. To reduce Latino
representation by 1.3 percentage points, fully one-ha]f of all Latinos would need
to not be citizens. 5
As noted above, the theorntical arguments about electoral structure and ethnic
minorities assume that ethnic minorities are a numerical minority. When Latinos
become a numerical majority, electoral structure should have little effect on rep-
resentation because they can simply use majoritarian electoral systems, such as
at-large elections, to their advantage. To determine whether or not majority status
changes the relationship between structure and representation, we replicated our
analysis with the 106 school districts with a Latino majority. The equations in
Tab]e 4 include both linear relationships for population (as found in Table 2) and
nonlinear relationships for population for comparison purposes.
Despite the substantial size of the coefficients for ward-based systems in both
equations, none of the relationships are statistica11y significant. In short, when
Latinos are a majority, there is no difference in the representational consequences
of at-large elections compared to ward-based elections.
This finding should be qualified somewhat based on two additional bits of evi-
dence. First, the equations are marked by a high degree of collinearity, thus
making statistical significance difficult to obtain; tolerance levels for the linear
relationship .are especially low. At the same time, a joint f-test compaiing the
equations in Table 4 with those in Table 2 shows that the four additional variables
as a group do not add a statistically significant level of explanation (F-test for the
nonlinear specification= 1.67 with 4, lOOdf, p = .16; F-test for the linear spec-
ification= 2.01, p = .10). Second, the appointive system relationships do appear
to be somewhat different, with coefficients that approach or modestly exceed tra-
ditiona] levels of statistical significance. Because the translation of descriptive
representation into substantive representation has been called into question in the
literature (Meier and Stewart 1991 ), we leave the precise meaning of the rela-
tionships in appointive systems for future research.
Administrative Representation
Political representation on urban legislatures, be they city councils or school
boards, has been linked to greater access to jobs for the represented group
(Eisinger 1982; Mladenka 1989). Although there is some question as to whether
the causal relationship runs from elected officials to employment or from employ-
ment to elected officials (Meier and Smith 1994 ), we wi11 assume, as does the
overwhelming majority of the literature, that the process flows from the top
down-that is, representation on school boards increases representation in admin-
5 One reason why citizenship does not matter more than it does is that school district elections have
very low turnout (often as little as 5% of registered voters). We also tried an interaction of the Latino
population and the citizenship variable, but it was statistically insignificant.
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Item 11.b. - Page 98
The Politics of Latino Education: The Biases of At-Large Elections 1237
TABLE 4
Selection Process Does Not Affect Latino Representation When
Latinos Are a Majority
Dependent variable = Percent Latinos on School Board
Linear
Population
Squared
Population
Variable Slope t tol. Slope t tol.
Intercept -65.40 6.21 -7.0380 1.25
Latino Population 1.68 11.33 .71 .0116 11.25 .71
Ward System -23.48 1.1 l .04 -10.0413 .88 .15
Ward X Population .34 1.15 .04 .0020 .98 .14
Appointed System 106.94 1.84 .04 48.6729 1.45 .11
Appointed x Population -1.71 2.12 .04 -.0119 1.96 .11
R-squared .65 .64
Standard error 18.82 18.96
F 39.46 38.55
N of cases 106 106
Analysis includes districts only with more than 50% Latino population.
istrative positions, and both in turn increase representation at the street level (in
this paper, the teachers).
The first equation in Table 5 shows the relationship of Latino school board rep-
resentation and population with the percentage of Latino administrators for
minority districts. Population can be interpreted as a labor pool characteristic.
Administrators are hired from a pool of individuals, a percentage of which will
be Latino. To control for variation in the composition of the labor pool, there-
fore, the Latino population percentage is needed In addition, the quality of this
labor pool is affected by factors such as education levels, income, and even cit-
izenship. Table 5 therefore controls for the Latino population percentage with
college degrees, living in poverty, and who are not citizens.
Even with these controls, Latino board members are positively associated with
more Latino administrators; a one percentage point increase in Latino board . .
members is associated with a .16 percentage point increase in Latino adminis-
trators, ceteris paribus.6 The level of explained variation in Table 5 reveals that
the hiring of Latino administrators is a far more predictable process than the elec-
tion of school board members.
6 The relationships in this table may all be nonlinear. When squared tenns are added for both vari-
ables, all four slopes are positive and statistically significant. The level of explained variation increases
by only three percentage points, however, and the literature does not contain any arguments about a
nonlinear relationship.
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Item 11.b. - Page 99
1238 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier
TABLE 5
Latino Board Representation and Latino Administrators
Dependent variable = Percent Latino Administrators
Districts Districts
Minority Majority
Variable Slope t tol. Slope t tol.
Intercept -.774 2.22 -26.866 2.85
Latino Population .327 30.31 .59 .391 2.40 .31
School Board Representation .156 11.89 .68 .319 4.40 ,33
Latino Non-Citizens -.026 3.97 .89 -,359 2.55 .74
Latino College Graduates .031 3.18 .68 1.619 3.76 .82
Latino Poverty .014 1.44 .82 l.D40 5.69 .66
R-squared .62 .76
Standard error 3.50 13.33
F 450.86 65.63
N of cases 1,371 101
Table 5 also demonstrates how much other factors affect administrative hi.ling.
The major influence on the percentage of Latino administrators hired is the per-
centage of Latino population, a percentage that reflects both the potential politi-
cal clout of the Latino community as well as the potential pool of candidates for
administrative positions. As expected, administrative representation increases
with the percentage of colJege-educated Latinos. Even though citizenship is not
a requirement for holding an administrative position in a school system, noncit-
izenship likely correlates with other factors that disadvantage Latinos, so the neg-
ative relationship is expected. The positive relationship between Latino poverty
and administrative representation is likely a function of job opportunities. In com-
munities with low poverty levels, well-payingjobs in the private sector are likely
to attract many Latinos who might opt to be school administrators. High levels
of poverty make safe, although lower paying, jobs in school systems more attrac-
tive. Even though each of these three relationships is statistically significant, their
substantive impacts are relatively minor.
The second equation shows the same set of relationships for districts with a
Latino majority. All relationships remain statistically significant although the size
of the relationships, except for population, changes dramatically. The school
board representation coefficient is now better than twice the size it was for minor-
ity Latino districts. Such a relationship is consistent with the notion that Latino
representatives will be less constrained in pursuing their own interests in Latino
majority jurisdictions than in jurisdictions where they are a minority. The other
labor pool factors also increase in in1portance, thus suggesting that majority dis-
tricts might be pushing up against the constraints of the size of the qualified labor
force. The important finding in this second equation, however, is that Latino rep-
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Item 11.b. - Page 100
The Politics of Latino Education: The Biases of At-Large Elections 1239
TABLE 6
The Determinants of Latino Teachers
Dependent variable = Percent Latino Teachers
Districts Districts
Minority Majority
Variable Slope t tol Slope t tol.
Intercept -.058 ,28 -32.268 7.16
Latino Population .200 21.62 ,36 .539 4.20 .30
School Board Representation .055 5.93 .62 -.012 .19 .28
Latino Administrators .290 16.04 ,38 .467 6.04 .24
Latino College Grads .013 2.06 .70 .890 2.54 .75
Latino Poverty -.005 .72 .83 ,435 2.64 .50
R-squared .74 .82
Standard error 2.35 10.43
F 773.52 94.15
N of cases 1,365 102
resentation in majority districts differs from Latino representation in minority dis-
tricts in significant ways.
Teacher Representation
Our final empirical analysis examines the determinants of Latino teachers.
Well-developed models of teacher ethnicity in the literature suggest that labor
pool characteristics (the size of the Latino population and the education levels of
that population), Latino administrators, and Latino board members will be sig-
nificantly linked to teacher representation. The strongest determinant of Latino
teachers, however., is likely to be the percentage of Latino administrators. 7
Table 6 reveals such a pattern. In Latino minority districts, a one percentage
point increase in Latino administrators is associated with a .29 percentage point
increase in Latino teachers, all other things being equal. Latino population also
plays a role, but its impact is substantially less. Both Latino board representation
and Latino college percentage have marginally significant relationships, but their
direct substantive impact is small.8
7 One potential question is what percentage of Latino teachers in the sample are bilingual educa-
tion teachers. There are no national statistics on this question, but a separate Texas school data set
indicates that less than 5% of Latino teachers are bilingual education teachers.
8 To more fully explain this result, one might ask whether (I) non-Latino administrators resist hiring
Latino teachers, (2) Latino administrators make extra efforts to hire Latino teachers, or (3) Latino
teachers prefer to work for schools with relatively large numbers of Latino administrators. We cannot
be certain which of these dynamics is taldng place, but for the purposes of our study, it does not make
a large difference whether one, two, or even all three are at work. The regressions show that the pres-
ence of Latino administrators leads to more Latino teachers, and it is beyond the scope of our paper
to determine the relative importance of these three potential explanations.
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Item 11.b. - Page 101
1240 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier
The relationships for Latino majority districts are even more clear cut. Latino
population, Latino administrators, and labor force characteristics matter, but
school board representation does not. A one percentage point increase in Latino
administrators is associated with a .4 7 percentage point increase m Latino teach-
ers, all other things being equal. The corresponding impact for Latino population
is a .54 percentage point increase.
The relative magnitude of the school board and administrators findings makes
sense because administrators hire teachers and much of this process takes place
in the schools rather than in front of the board. A number of researchers have
indeed noted the indirect impact of school boards on many district decisions, as
much power has devolved to administrators over time.9 In Latino minority dis-
tricts, the impact of school board members is very small; in Latino majority dis-
tricts, the influence cannot be distinguished from zero. Board members may lack
a direct way to influence the composition of these street level bureaucrats. If the
causal sequencing is correct, however, Latino school board members have a sub-
stantial indirect effect on teacher composition by affecting the ethnicity of school
administrator-s. 10
Conclusions
This is the first paper in a national study designed to update and expand the
:findings of previous research regarding the political factors and policy practices
that influence educational outcomes for Latino students. Multiple studies suggest
greater minority representation in the educational policy process translates into
more positive outcomes for minority students (Meier, Stewart, and England 1989;
Reyes, Scribner, and Scribner 1999; Spring 2000). Meier and Stewart went
further in their assessment of the importance of Latino representation when they
identified it as the one contributmg variable that can be manipulated or changed
by "concerted political efforts and appropriate policy decisions" (1991, 210). In
this report we focus on descriptive representation with the objective of improv-
ing our ability to explain and predict the population-representation relationship.
A contemporary study of this topic is useful for several reasons. First, research
in the 1970s and the 1980s arrived at different conclusions about the influence
of electoral structure on minority educational representation. Second, the Latino
population is now located in a different social and political situation. The 2000
Census revealed how this group is expanding throughout the United States, and
many educational jurisdictions that have historically educated few Latino chil-
9 See Tyack (1974) for a discussion ofhow the responsibility for teacher hiring changed over time.
Other research further suggests that the impact of Latino board members on the hiring of Latino
teachers is real although indirect (Wirt and Kirst 200 I, 164).
10 One might ask whether any of the above relationships vary according to which Latino national-
origin group comprises the majority of the district population. We were able t,o test this possibility
by separately analyzing majority Mexican-American districts and majority Puerto Rican districts. The
regression results derived from these subsamples were very similar t,o those derived from the overall
sample. There were only two plurality Cuban-American districts, however, and there were no major-
ity or plurality districts for other Latino :national-origin groups.
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Item 11.b. - Page 102
The Politics of Latino Education: The Biases of At-Large Elections 1241
dren are now encountering significant and growing numbers of such students. A
new and comprehensive national study is therefore important to understanding
how Latino educational representation fares in this new and expanding context.
Third, to advance the methodology of analysis, the paper tests for a nonlinear
population effect, which was not conducted in the educational representation lit-
erature. We also separately examine majority Latino population districts and
minority Latino population districts, which was not done by previous research.
Lastly, given the extensive litigation over city council districts, current school
boards may represent the last opportunity to investigate whether and how elec-
toral structures affect minority representation on political bodies in contempo-
rary America.
Overall, our findings highlight the complexity of the relationship between
Latino populations and their representation on school boards. Looking strictly at
levels of population and levels ofrepresentation on school boards, earlier studies
found Latinos significantly underrepresented. Our analysis shows this trend con-
tinues and appears to be growing.
The presence of a threshold effect, however, suggests that a nonlinear specifi-
cation may be appropriate. We also note that Latinos (like any group) may be
able to profit from at-large districting when they are a majority of the population.
We test a squared population term and divide the sample into majority and minor-
ity Latino districts. The nonlinear Latino population variable is significant in the
minority Latino districts and adds additional explanation to the overall equation.
Both population variables are insignificant in the majority Latino districts and the
model contains significant collinearity, however, thus suggesting that in these dis-
tricts the relationship between Latino population and Latino representation
remains linear.
A key question in the literature is the etlmic bias of different selection plans.
Our study supports the :findings of earlier research showing minority population
translating into minority school board seats at a substantially higher rate with
ward elections than with at-large elections. Our findings show that at-large e1ec-
tion systems usually disadvantage Latinos; the obvious policy recommendation
is that at-large systems should be replaced by single-member systems.
Interestingly, appointment systems appear more efficient than ward elections.
We contend that the circumstances in appointment systems, however, are funda-
mentally different from elections. These differences may produce higher repre-
sentation but potentially change the impact of representation. Why? The attitudes
and priorities of political appointees may more closely reflect those of community
elites rather than the general population, or appointees simply may behave differ-
ently than elected officials. Further study is clearly needed on the political context
of appointment systems and its effect on appointee attitudes and behaviors.
We also explored other population demographics that were hypothesized to
influence the low level of Latino representation on school boards. Based on the-
ories of participation and group power, we expected the political resources of the
population-income, education, and citizenship-to play a role. We found that
the low socioeconomic status of the Latino population has no effect on the rela-
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Item 11.b. - Page 103
1242 David L. Leal, "Wilerie Martinez-Ebers, and Kenneth J. Meier
tionship . The percentage of the population that is ineligible to vote (noncitizens)
has a negative effect, not surprisingly, but the size of that impact is trivial.
Finally, although our models predicting Latinos in lower positions of school
authority basically mirror those previously repo1ted, our analysis serves to
emphasize the linkage between descriptive and substantive representation. While
characteristics of the available labor pool play a role in predicting the presence
of Latino administrators and teachers, they are overshadowed by the impo1tance
of having Latinos at higher levels of authority. Latino representation on school
boards is significantly associated with increases in the percentage of Latino
administrators, and the percentage of Latinos in administration is the most impor-
tant variable determining the presence of Latino teachers. As we know the Latino
community wants more Latinos teaching their children, greater Latino school
board representation is therefore more likely to lead to education policies con-
gruent with community wishes .
Acknowledgment
An earlier version of this paper was presented at the 2002 annual meeting of the
Western Political Science Association, Long Beach, CA. We would like to thank
Eric Gonzalez Juenke, Miner P. Marchbanks, Ill, and Nick Theobald for assis-
tance collecting the data and compiling the data set. Financial support was pro-
vided in part by the Cantu Hispanic Education and Opportunity Endowment and
the Texas Educational Excel1ence Project at Texas A&M University. The first
author would like to acknowledge the support of a National Academy of Educa-
tion/Spencer post-doctoral fellowship.
Manuscript submitted November 12, 2002
Final manuscript received January 30, 2004
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Item 11.b. - Page 106
EXHIBIT ''H''
Item 11.b. - Page 107
RESOLUTION NO. 5743
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARPINTERIA, CALIFORNIA, DECLARING ITS INTENTION TO
TRANSITION FROM AT-LARGE TO DISTRICT-BASED ELECTIONS
BY NOVEMBER OF 2022
WHEREAS, members of the City Council of the City Carpinteria are currently
elected in "at-large" elections, in which each councilmember is elected by the
registered voters of the entire City; and
WHEREAS, California Government Code section 34886 permits the legislative
body of a city to change its method of election by ordinance from an "at-large" system
to a "district-based" system in which each member of the legislative body is elected by
the voters in the district in which the candidate resides; and
WHEREAS, on July 3, 2017, the City received a letter entitled Notice of
Violation of California Voting Rights Act ("Notice") from Jatzibe Sandoval and Frank
Gonzalez ("Prospective Plaintiffs") asserting that the City's elections are
characterized by racially polarized voting and demanding that the City commence the
process to transition to district based elections pursuant to the California Voting
Rights Act (''CVRA"); and
WHEREAS, a violation of the CVRA is established if it is shown that racially
polarized voting occurs in elections (Elections Code section 14028(a)). "Racially
polarized voting" means 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 (Elections Code section 14026(e)): and
WHEREAS, the CVRA allows for Prospective Plaintiffs to file a lawsuit against
the City if the City does not adopt a resolution of intent to institute district based
elections within 45 days of the Notice ("45-day period 11
) (Elections Code section
10010); and
WHEREAS, the Notice states that if the City declines to do adopt a resolution
of intention to transition to district elections within the 45-day period, Prospective
Plaintiffs will commence a lawsuit to compel district based elections; and
WHEREAS, August 17, 2017 is the 45th day from the date the City received
the Notice; and
WHEREAS, at its July 31 special meeting the City Council received public
comment on the potential to transition to district elections and a majority of those
commenting spoke in favor of instituting a district-based election system; and
15876382.1
Item 11.b. - Page 108
WHEREAS, the Prospective Plaintiffs offered to consider a settlement
agreement whereby the City would not be required to institute district elections until
the November 2022 regular election in order to allow 2020 census data to be taken
into account in drawing district boundaries; and
WHEREAS, the City denies that its at-large election system violates the CVRA
or any other provision of law and asserts that the City's election system is legal in all
respects; and
WHEREAS, the City Council has concluded that the public interest would be
served by transitioning to a district-based electoral system due to public support for
district elections, the extraordinary cost to defend against a CVRA lawsuit and the
uncertainties inherent in litigating a CVRA claim.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF CARPINTERIA AS FOLLOWS:
SECTION 1.
The above recitals are true and correct.
SECTION 2.
Before the November 2022 regular election, the City Council 'will consider
adoption of an ordinance to institute a district-based election system, as
authorized by Government Code section 34886.
SECTION 3.
Prior to considering an ordinance to establish district boundaries for a district-
based electoral system, the City will follow the requirements pursuant to
Elections Code section 10010 to solicit public input in the district map drawing
process.
PASSED, APPROVED, AND ADOPTED this 14th day August, 2017 by the
following vote:
AYES: COUNCILMEMBER{S):
NOES: COUNCILMEMBER(S):
ABSENT: COUNCILMEMBERS(S):
ABSTAIN: COUNCILMEMBER(S):
15876382.1
Item 11.b. - Page 109
CONDITIONAL SETTLEMENT AGREEMENT AND RELEASE
This CONDITIONAL SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is
entered into on this 14th day of August, 2017 ("Effective Date") by and between the CITY OF
CARPINTERIA, a general law city and municipal corporation ("City"), and JATZIBE SANDOVAL
and FRANK GONZALEZ, residents of City ("Prospective Plaintiffs"). The above parties are referred to
herein individually as "Party" and collectively as "Parties."
RECITALS
A. Since incorporation in 1965, the City Council has been elected through the at-large election
system in which each voter may cast one vote for each Council seat that is up for election.
B. On July 3, 2017, City received a Notice ofViolation ("Notice") of the California Voting Rights
Act ("Act") from Prospective Plaintiffs, alleging that the City's at-large system of electing City
Council members violates the Act and threatening suit unless the City transitions to a district-
based electoral system, which is an election method in which the candidate must reside within an
election district that is a divisible part of the city and is elected only by voters residing within
that election district.
C. On July 31, 2017, the City Council held a public meeting to receive public input on the Notice
and the potential for transitioning to a district-based election system. The majority of those
commenting spoke in favor of instituting a district-based election system.
D. The City Council denies that the City's at-large electoral system violates the Act. Nevertheless,
in recognition of the public support voiced at the July 31 meeting for instituting district-based
elections and in recognition that litigation involves significant costs and uncertainty, the City
Council desires to enter into this Agreement.
E. The Parties desire to delay the institution of district elections until 2022 so that the district
boundaries may be drawn based on 2020 census data, which will not become available until
2021.
F. The Parties now wish conditionally to resolve and settle the Notice and all attendant and
potential litigation arising therefrom.
NOW, THEREFORE, in consideration of the mutual covenants and agreements described
below, and for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Settling Parties hereby agree:
I. Obligations of Parties
A. At its regular meeting on August 14, 2017, the City Council will consider approval of a
resolution of intent to institute a district-based election system for City Council seats by
the November 2022 regular election. 1 The Council retains the discretion to determine
1 The November 2022 regular election will occur on November 8, 2022. (Blee. Code§ lO00(d).)
1
Item 11.b. - Page 110
whether to institute district-based elections for four City Council seats with the mayor
elected at large or to institute district elections for all five Council seats with the mayor
appointed by the Council.
B. Provided that the City Council adopts the resolution described in subsection A,
Prospective Plaintiffs shall not bring suit against the City prior to November 9, 2022 for
any cause of action related to the City's electoral system, including, but not limited to,
suit seeking the implementation of district-based elections or claims related to or arising
from the Notice.
C. Provided that the City Council adopts the resolution described in subsection A, within 30
days of such adoption, the City will remit a payment of $30,000 to Prospective Plaintiffs
as reimbursement of its costs incurred for the work product to support the Notice in
fulfillment of the requirement to reimburse prospective plaintiffs' reasonable costs
pursuant to Elections Code section I 001 0(:f). The check will be made payable to
Prospective Plaintiffs' attorney-of-record Robert Goodman to his trust account Robert
Goodman Trust Account. Pursuant to Elections Code section 10010(f)(l), Prospective
Plaintiffs have made a demand for reimbursement and staff has substantiated that the
documentation provided by Prospective Plaintiffs represents the demography and legal
costs incurred by Prospective Plaintiffs supporting their Notice.
2. Condition Precedent
Prospective Plaintiffs acknowledge, understand and agree that the City Council's passing of the
resolution described in Section 1 is an express condition precedent to the consummation of this
Agreement and the covenants, conditions and agreements contained herein. In the event that the
resolution is not approved as set forth in Section 1, then this Agreement shall be null and void
and shall be of no further force and effect. In such event, neither this Agreement, nor any of its
~rms or provisions, shall be admissible in any action or proceeding initiated by Prospective
Plaintiffs for any purpose.
Further, the Prospective Plaintiffs recognize and acknowledge that the City Council is under no
obligation to pass the resolution and that the Council reserves its discretion and the full measure
of its powers to evaluate the resolution in accordance with applicable procedures, standards and
requirements. It is understood and agreed that this Agreement shall not be construed in any
fashion as an advance determination and does not provide the Prospective Plaintiffs with any
expectation as to the outcome of the City Council's decision on the resolution. The City
Council's lack of approval or inaction on the resolution will not constitute a default of this
Agreement, but instead will constitute a terminating event of this Agreement.
3. Admissibility of A greement
If the City does not institute district-based elections for City Council seats by the November
2022 regular election, this Agreement shall not be construed as an admission by the City that
such failure to act is unreasonable or unlawful under the Elections Code. In addition, this
2
Item 11.b. - Page 111
Agreement may not be introduced into or be admissible in any judicial proceeding other than a
judicial proceeding to enforce the terms of this Agreement.
4. Release
A. Subject to the performance of the Parties' obligations in this Agreement, the Parties
hereby fully and finally waive, release, and permanently discharge each other (and their
respective officers, employees, agents, representatives and attorneys) (the "Releasees"),
from any and all past, present, or future matters, claims, demands, obligations, liens,
actions or causes of action, suits in law or equity, or claims for damages or injuries,
whether known or unknown, which they now own, hold or claim to have or at any time
heretofore have owned, held or claimed to have held against each other by reason of any
matter or thing alleged or referred to, or in any way connected with, arising out of or in
any way relating to the Notice (collectively, the "Released Claims"). In connection with
the release of the Released Claims, the Parties waive any and all rights that they may
have under the provisions of section 1542 of the California Civil Code, which states as
follows:
A general release does not extend to claims which the creditor does not know or suspect
to exist in his or her favor at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the debtor.
In the event that any waiver of the provisions of Section 1542 of the California Code
provided for in this Agreement shall be judicially determined to be invalid, voidable or
unenforceable, for any reason, such waiver to that extent shall be severable from the
remaining provisions of this Agreement, and the invalidity, voidability or
unenforceability of the waiver shall not affect the validity, effect, enforceability or
interpretation of the remaining provisions of this Agreement.
B. The Parties understand and acknowledge that the foregoing release extends to any claims
or damages, without limitation, arising out of the Released Claims that may exist on the
date of the execution of this Agreement, but which the Parties do not know to exist,
which, if known, would have materially affected their decision to execute this
Agreement, regardless of whether their lack of knowledge is a result of ignorance,
oversight, error, negligence or any other cause.
C. Each Party acknowledges and agrees that this Agreement is a compromise and settlement
of their disputes and differences, and is not an admission of liability or wrongdoing by
any Party.
D. Except as provided in section 1.C. of this Agreement, each of the Parties waives any and
all claims for the recovery of any costs, expenses, or fees, including attorney fees,
associated with the matters and claims released in this Agreement.
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Item 11.b. - Page 112
5. Representations and Warranties
A. Prospective Plaintiffs hereby represent and warrant to the City, as of the Effective Date,
as follows:
1. They have not heretofore assigned or transferred, or purported to assign or transfer, to
any party not named herein any Released Claim, or any part or portion thereof.
ii. To the best of their knowledge, there are no legal actions, suits or similar proceedings
pending and served, or threatened in writing against the Prospective Plaintiffs that
would adversely affect their ability to consummate the transactions contemplated in
this Agreement. To the best of their knowledge, Prospective Plaintiffs are not aware of
any existing claims nor of any facts that might give rise to any claims of any type or
nature against the City, whether asserted or not, that have not been fully released and
discharged by the release set forth in this Agreement.
iii. Prospective Plaintiffs have freely entered into this Agreement and are not entering into
this Agreement because of any duress, fear, or undue influence; this Agreement is
being entered into in good faith.
1v. Prospective Plaintiffs have made such investigation of the facts pertaining to this
Agreement as they deem necessary.
v. Prospective Plaintiffs have, prior to the execution of this Agreement, obtained the
advice of independent legal counsel of their own selection regarding the substance of
this Agreement and the claims released herein.
B. In executing this Agreement, Prospective Plaintiffs acknowledge, represent, and warrant
to the City that they have not relied upon any statement or representation of any City
officer, agent, employee, representative, or attorney regarding any facts not expressly set
forth within this Agreement. In entering into this Agreement, Prospective Plaintiffs
assume the risk of any misrepresentations, concealment or mistake, whether or not they
should subsequently discover or assert for any reason that any fact relied upon by them in
entering into this Agreement was untrue, or that any fact was concealed from them, or
that their understanding of the facts or of the law was incorrect or incomplete.
C. The repr.esentations and warranties of each of the Parties set forth in this Section 4 and
elsewhere in this Agreement will survive the execution and delivery of this Agreement
and are a material part of the consideration to the City in entering into this Agreement.
6. Interp retation
A. The Parties have cooperated in the drafting and preparation of this Agreement and, in any
construction or interpretation to be made of this Agreement, the same shall not be
construed against any Party. This Agreement is the product of bargained for and arm's
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Item 11.b. - Page 113
length negotiations between the Parties and their counsel. This Agreement is the joint
product of the Parties.
B. This Agreement is an integrated contract and sets forth the entire agreement between the
Parties with respect to the subject matter contained herein. All agreements, covenants,
representations and warranties, express or implied, oral or written, of the Parties with
regard to such subject matter are contained in this Agreement. No other agreements,
covenants, representations or warranties, express or implied, oral or written, have been
made or relied on by either Party.
C. This Agreement may not be changed, modified-or amended except by written instrument
specifying that it amends such agreement and signed by both Parties. No waiver of any
provision of this Agreement shall be deemed or shall constitute a waiver of any other
provision whether or not similar, nor shall any waiver be deemed a continuing waiver;
and no waiver shall be implied from delay or be binding unless executed in writing by the
party making the waiver.
D. All of the covenants, releases and other provisions herein contained in favor of the
persons and entities released are made for the express benefit of each and all of the said
persons and entities, each of which has the right to enforce such provisions.
E. This Agreement shall be binding upon and inure to the benefit of each of the Parties, and
their respective representatives, officers, employees, agents, heirs, devisees, successors
and assigns.
7. Furth\t;r Coop eration
Each Party shall perform any further acts and execute and deliver any further documents that
may be reasonably necessary or appropriate to carry out the provisions and intent of this
Agreement. Except as expressly stated otherwise in this Agreement, actions required of the
Parties or any of them will not be unreasonably withheld or delayed, and approval or disapproval
will be given within the time set forth in this Agreement, or, ifno time is given, within a
reasonable time. Time will be of the essence of actions required of any of the Parties.
8. No Third P arty Beneficiaries
Nothing in this Agreement is intended to benefit any third party or create a third party
beneficiary. This Agreement will not be enforceable by any person not a Party to this
Agreement.
9. Enforced Delay (Force Majeure)
A. Performance by either Party shall not be deemed to be in default where delays or defaults
are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, acts of
terrorism, epidemic, quarantine, casualties, acts of God, litigation, governmental
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Item 11.b. - Page 114
restrictions imposed or mandated by governmental entities, enactment of conflicting state
or federal laws or regulations, or other similar circumstances beyond the reasonable
control of the Parties and which substantially interferes with the ability of a Party to
perform its obligations under this Agreement.
B. An extension of time for any such cause (a "Force Majeure Delay") shall be for the
period of the enforced delay and shall commence to run from the time of the
commencement of the cause, if notice by the Party claiming such extension is sent to the
other Party within thirty (30) days of knowledge of the commencement of the cause.
Notwithstanding the foregoing, none of the foregoing events shall constitute a Force
Majeure Delay unless and until the Party claiming such delay and interference delivers to
the other Party written notice describing the event, its cause, when and how such Party
obtained knowledge, the date tlie event commenced; and-the estimated delay resulting
therefrom. Either Party claiming a Force Majeure Delay shall deliver such written notice
within thirty (30) days after it obtains actual knowledge of the event. The time for
performance will be extended for such period of time as the cause of such delay exists but
in any event not longer than for such period of time.
l 0. Governing Law; Venue
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
California, without regard to any otherwise applicable principles of conflicts oflaws. Any action
arising out of this Agreement must be commenced in the state courts of the State of California,
County of Santa Barbara, and each party hereby consents to the jurisdiction of the above courts
in any such action and to venue in the State of California, County of Santa Barbara, and agrees
that such courts have personal jurisdiction over each of them.
I I . Counterp arts
This Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original, and such counterparts together shall constitute one
and the same instrument.
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