Public agencies across California are facing a wave of demand letters threatening litigation if they do not change their at-large elections (all voters can vote on all candidates) to district-based elections, which requires creating district maps that separate the public entity into defined geographic areas from which that area elects a representative. Further, if public agencies do not switch to district elections, the California Voting Rights Act (CVRA) allows legal challenges to at-large elections. In those lawsuits, plaintiffs seek to prove that at-large elections dilute the voting strength of a protected class, which has been a low bar to cross. Further, public entities that are unsuccessful in defending a legal challenge to their voting system can be on the hook for paying hundreds of thousands of dollars in their own legal bills as well as those of the victorious plaintiff. Meyers Nave attorneys Jason Rosenberg and Naree Chan provided a complimentary webinar to help public agencies understand the legal challenges and financial risks they face and, if they choose, how to transition to district-based elections in compliance with both the California Voting Rights Act and the Federal Voting Rights Act. Their webinar covers the pros and cons of at-large vs. district-based elections; legal and financial implications of city challenges to CVRA litigation; Safe Harbor provisions of AB 2123 and AB 350; and, relevant compliance criteria for drawing population maps for district-based elections.

1. California Voting Rights Act
District-Based Elections
Jason Rosenberg, Of Counsel
Naree Chan, Associate
March 19, 2019

2. 2
Overview
• California Voting Rights Act (CVRA)
• Prior CVRA Challenges
• Safe Harbor Provisions
• Districting Process
• Alternative Approaches
• Practice Tips

3. 3
Introduction
• California Voting Rights Act (CVRA) (2001)
– Expands on Federal Voting Rights Act.
– Easier for plaintiffs to prove at-large elections
dilute the voting strength of a protected class.
• Racially Polarized Voting (RPV)
– Difference in the candidates preferred
by voters in a protected class (i.e. Latino)
compared to voters in the rest of the electorate
(i.e. non-Latino). (Elec. Code 14026(e)).

4. 4
Other CVRA Factors
1. History of discrimination
2. Use of electoral devices
or other voting practices or
procedures that may enhance
dilutive effects of at-large elections
3. Denial of access to the processes
that the determine which groups
of candidates will receive financial
or other support in a given election
(Elec. Code 14028(e))

5. 5
Other CVRA Factors
4. Extent to which members
of a protected class
– Bear effects of past discrimination
in areas such as education,
employment, and health
– Which hinder their ability
to participate effectively
in the political process
5. Using overt or subtle racial appeals
in political campaigns is probative.
(Elec. Code 14028(e))

6. 6
Background
• At-Large Elections (current)
– Voters from the entire Town
choose all five (5) Councilmembers.
• By-District Elections (demand letter request)
– Create maps to divide Town into separate districts.
– Candidate must reside in district he/she represents.
– Only voters living in the same district as the
candidate can vote in that election cycle
(every four years).

7. 7
Prior CVRA Challenges
Limited court decisions:
Only two published California cases
1. Modesto
– Court found CVRA applied to the city.
2. Palmdale
– Court prohibited city from
certifying results of at-large
election.

8. 8
Prior CVRA Challenges
Other cities that challenged CVRA
1. Huntington Beach
• In May 2017, the city responded to the demand letter
and was prepared to defend a lawsuit.
• No lawsuit has since been filed by Shenkman & Hughes.
2. Santa Clara
• City lost lawsuit against Shenkman & Hughes.
• Court ordered city to transition to district elections even though
voters rejected district elections in a June 2018 special election.
3. Santa Monica
• City lost lawsuit against Shenkman & Hughes on Nov. 13, 2018,
and it is uncertain whether the city will file an appeal.

9. 9
Legal and Financial Implications
• CVRA Lawsuits
– Plaintiff has low bar to prevail in CVRA lawsuit
– Even if city prevails, another plaintiff may
allege CVRA violation later
• Costs to Litigate
– Legal fees are approximately $500,000
– Must pay plaintiff’s legal fees if city is unsuccessful
– Broad range of $385K to $4.5M for plaintiff’s legal fees
– Court imposes district elections & draws maps

10. 10
Cities in Northern CA
Transitioned to district elections
after receiving demand letters
• November 2018 District Elections
– Santa Clara (July 2018 court order)
– Santa Rosa (April 2018)
– Menlo Park (April 2018)
– Concord (March 2018)
– Martinez (February 2018)
• November 2020 District Elections
– South San Francisco (July 2018)
– Half Moon Bay (September 2018)
– Redwood City (in transition)

11. 11
AB 350 (2016) – Safe Harbor
Town’s liability capped at $30,000
1) 45 days
• Adopt resolution of intention
to transition to “by district” elections
2) 90 days
• Hold 2 public hearings for public input on maps
• Hold 2 public hearings to draw maps
• Introduce and adopt ordinance

12. 12
AB 2123 (2018) – Safe Harbor
Effective January 1, 2019
1) Written Agreement
• If resolution adopted, a city may
enter into a written agreement
with the prospective plaintiff
2) Additional 90-days for Public Input
• Total of 180 days to hold public
hearings and introduce/adopt ordinance

13. 13
What is Districting?
• District-based election system
– Councilmembers are elected
from districts by voters that
live in the same district.
• Process
– Drawing boundaries that will
divide the city’s population into districts.
• 2020 U.S. Census
– Must re-draw district boundaries after each census

14. 14
What are the mapping criteria?
5 criteria used for drawing districts
1. Equal Population
2. Complies with Federal Voting Rights Act
3. Contiguity
4. Compactness
5. Respect for Communities of Interest

15. 15
Criterion 1 – Equal Population
• “One person, one vote”
– U.S. Constitution requires
districts have “reasonably equal”
populations.
– Some deviation above/below “ideal” is allowed (~5%)
• 14th Amendment
– Intentional discrimination is prohibited
(Equal Protection).
• 15th Amendment
– Bans racial discrimination in voting.

16. 16
Criterion 1 – Equal Population
• Ideal = Total population/Number of Districts
• Based on U.S. Census = 100,000
• Assuming Number of Districts is 5
– Retain rotating mayor elected by Council
– Ideal Population = 20,000 people per district
• Assuming Number of Districts is 4
– Transition to mayor elected at large by all Town voters
– Ideal Population = 25,000 people per district

17. 17
Criterion 2 – Federal Voting Rights Act
• Protected class is race or language minority
– Language minority only
includes Asian, Native American,
Alaskan Native, or Spanish heritage
(42 USC § 1973)
• Prohibits certain practices
– Purpose or effect of discriminating on the basis
of race or language minority status.
• Applies nationwide
– To all jurisdictions that conduction elections.

18. 18
Criterion 2 – Federal Voting Rights Act
• Vote Dilution
– Limiting a protected class of voters
“ability to elect a candidate of choice”
• Methods of Vote Dilution
– “Cracking” divides a minority population
so it does not constitute a majority in any district.
– “Packing” groups a minority population
into one district even though they could be
in multiple districts.
• Race cannot be the predominant criterion

19. 19
Criterion 3 - Compactness
• Addresses geography of district
• Guard against gerrymandering
• What is the appearance of the district?

20. 20
Criterion 4 - Contiguity
• All parts of the district are connected.
• A person can travel from one location to another
location without crossing a district boundary.

21. 21
Criterion 5 – Communities of Interest
• COIs are contiguous populations that share common
social and economic interests
 Schools, culture, transportation, parks
 Shared goals of improving parks,
safety, historic resources
 Employment or lack of thereof and
economic opportunities
• Used as building blocks for districts
• Often thought of as “neighborhoods”
• Defined by public input

22. 22
Drawing a District Map

23. 23
Alternative Approaches
• Redistricting Committees
– Independent Committee
• Authorized to adopt district boundaries after
conducting three public hearings
• Required application process must be open to all
eligible residents
• Elections Code Section 23003
– Advisory Committee
• Appointed to recommend a district map to Council
• Elections Code Section 23003

24. 24
Alternative Approaches
• At-Large Mayor
– Authorized by Gov. Code Section 34900
– Example Cities: Palmdale, Whittier, El Cajon
– Election Sequencing Concerns
• 2 districts plus at large mayor in 2020
• 2 districts in 2022

25. 25
Practice Tips
Counseling the Council – 5 Stages of Grief

26. 26
Practice Tips
• Closed session regarding pending litigation
prior to any public hearings
• Handling incumbency questions
• Coordinate with County Elections Office
regarding deadlines if elections consolidated

27. 27
Practice Tips
• Translation of all materials in print and online
• Interpreter available at public meetings
• Community outreach
– Religious organizations
– Farmer’s markets
– High schools (ex. Extra credit for students)

28. 28
Discussion
Q&A

29. 29
Presenters
Jason Rosenberg
Of Counsel
510-808-2000 | jrosenberg@meyersnave.com
Naree Chan
Associate
510-808-2032 | nchan@meyersnave.com