HomeMy WebLinkAboutAGENDA REPORT 2018 1011 CC SPEC ITEM 06A CITY OF MOORPARK,
CALIFORNIA Item: 6.A.
City Council Meeting
of October 11, 2018
ACTION Approved Staff
Recommendation. Adopted
Resolution No. 2018-3755.
BY B.Garza
A. Consider of a Resolution Declaring the City's Intent to Transition to District-
Based Elections with a Separate Directly Elected Mayor, Outlining the Specific
Steps to be Taken to Facilitate the Transition, and Estimating a Time Frame for
Action Pursuant to Elections Code Section 10010 as extended by Agreement;
and Approve an Agreement with a Prospective Plaintiff for Extension of the Time
Period for Specified Steps Provided by the California Voting Rights Act.
Staff Recommendation: 1) Adopt Resolution No. 2018-3755 declaring the City's
intent to transition to district-based elections; and 2) Approve the Agreement
between the City and Mr. Shenkman and his prospective plaintiffs entitled
"Agreement for Extension of Time Period for Specified Steps Provided by the
California Voting Rights Act." (Staff: Kevin Ennis)
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Kevin G. Ennis, City Attorney
DATE: 10/11/2018 Special Meeting
SUBJECT: Consider Resolution Declaring the City’s Intent to Transition to
District-Based Elections with a Separate Directly Elected
Mayor, Outlining the Specific Steps to be Taken to Facilitate
the Transition, and Estimating a Time Frame for Action
Pursuant to Elections Code Section 10010 as extended by
Agreement; and Approve an Agreement with a Prospective
Plaintiff for Extension of the Time Period for Specified Steps
Provided by the California Voting Rights Act
SUMMARY
The City of Moorpark currently elects its City Councilmembers through an “at-
large” election system in which each Councilmember can reside anywhere in the
City and is elected by the voters of the entire City to provide citywide
representation. The office of the Mayor is a separate, directly elected office.
On August 29, 2018, the City received a letter dated August 27, 2018 challenging
the City's current election method and asserting that the City’s at-large election
system violates the California Voting Rights Act (“CVRA”), Elections Code
Sections 14025 through 14032.
At the October 3, 2018 City Council meeting, staff presented a report providing
background information and an overview of the potential process for changing to
district-based elections so that the City Council and community could better
understand what the August 27, 2018 letter means, and what steps are provided
by law to address the challenge to the City’s current election system.
After considering all of the options and the legal opportunities and risks
associated with the options, the City Council set a Special Meeting for October
11, 2018 to consider a Resolution of Intent to initiate the process to transition to
district-based elections for Councilmembers.
Item: 6.A.
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The proposed resolution, attached as Attachment A, declares the City’s intent to
transition to district based elections for Councilmembers, outlines specific steps
to facilitate the transition, and provides an estimate of the time frame for action
pursuant to Elections Code Section 10010.
The proposed “Agreement for Extension of Time Period for Specified Steps
Provided by the California Voting Rights Act”, attached as Attachment B, would
allow for a 90-day extension to the deadline for completing the process of
adopting an ordinance to establish districts and a district-based election system
before a lawsuit challenging the City’s electoral system can be brought.
BACKGROUND
Historically, the City of Moorpark has elected its Councilmembers through an at-
large election system. Under this system, candidates for the City Council can
reside anywhere in the City and are elected by the registered voters of the entire
City. On November 8, 1988, the voters of Moorpark adopted Measure D which
provided that the Office of Mayor would be a separate, directly elected office with
a term of office of two (2) years.
On August 29, 2018, the City received a letter, attached as Attachment C, dated
August 27, 2018, from attorney Kevin Shenkman, claiming that the City's current
method of electing the City Council through at-large elections violates the CVRA.
The letter alleges that “voting within Moorpark is racially polarized, resulting in
minority vote dilution,” and threatens litigation if the City declines to adopt a
district-based election system. The letter highlights the electoral losses of City
Council candidates Ernesto Acosta in 1998, Bernardo Perez in 2002, and Jose
Magdalano in 2008 as evidence of the inability of Latino voters to elect their
chosen candidates. The letter threatens a lawsuit against the City if the City does
not change from an “at-large” election system to a “district-based” election
system.
A district-based election system is generally one in which a city is divided into
separate districts, with each district’s voters electing a representative from that
district, who must also be a resident of the district.
PUBLIC POLICY CONSIDERATIONS
Given the significant change that transitioning to districts will have on the culture
and governance of the City, it is understandable that the City Council and
community may desire to know the public policy implications of transitioning to
districts and the public policy implications of maintaining the current at-large
election system.
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A. Implications of Transitioning to a District-Based Election
System
If the City proceeds with a transition to a district-based election system, this
would have the advantage of avoiding a costly and time consuming CVRA legal
challenge. Some of the other advantages and disadvantages of having a district-
based election system are:
Pro:
• Each geographic area of the City is represented;
• Viewpoints that might not be citywide can be represented;
• Minority candidates (racial or political) may have a better
opportunity to be elected;
• Running for City Council could be less expensive because
citywide campaigning is not required;
• Each voter has a specific Councilmember to contact for
assistance; and
• Voter choice may be simplified with fewer offices and thus fewer
candidates are provided to each voter.
Con:
• Councilmembers may represent only the interests of their
districts, not the whole City;
• Candidates may be elected with few votes;
• Councilmembers may have more divergent views, and this may
result in greater conflict with each other;
• District lines have to be reviewed and redrawn after each
census potentially disrupting established Councilmember-
constituent relationships;
• “Best qualified” or “interested” candidates may be concentrated
in one district; and
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• There is a very compressed timeline to exercise this option
which will dominate the City’s policy agenda for a period of time
and may delay other priorities.
B. Implications of Maintaining At-Large Election System and
Defending Litigation
The City Council could decide to maintain the status quo and wait for a legal
challenge in court. Some of the advantages and disadvantages of maintaining an
at-large election system are:
Pro:
• Mayor and City Council are all accessible to the public;
• City Councilmembers consider interest of the whole City, not
just their district in making decisions;
• Each voter may approach every City Councilmember for
support;
• Provides City Council with broad perspective, allowing citywide
and regional perspective;
• May mute effects of parochial interests influencing elected
officials;
• Provides largest pool to select candidates;
• Each voter gets to vote for all City Councilmembers every four
years;
• Candidates need substantial citywide support to win; and
• City Councilmembers can move within the City without losing
their seats.
Con:
• May result in elected officials who pay less attention to and have
less familiarity with some neighborhood interests;
• May unduly enhance the influence of business interests and
other special interests;
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• May reduce accountability of elected officials by broadening the
constituency served;
• May result in less representation of minority groups;
• More costly campaigns, higher cost to candidates to get elected;
• Campaigns are more expensive--limiting who may run;
• Several City councilmembers could live close together, leaving
other areas “unrepresented”; and
• Litigation will be expensive and time consuming.
LEGAL CONSIDERATIONS
Despite these very valid and competing public policy considerations, state law
has changed over time to make it more difficult for cities to maintain “at-large”
councilmember election systems.
The CVRA was adopted in 2002, and is based upon the Federal Voting Rights
Act of 1965 ("FVRA") with some important differences that make at-large election
systems much more susceptible to legal challenge.
For a plaintiff to be successful in a claim of violation under the FVRA relating to
at-large elections, the plaintiff must show that: (1) a minority group is sufficiently
large and geographically compact to form a majority of the eligible voters in a
single-member district; (2) the minority group is politically cohesive; and (3) there
is "white bloc voting" sufficient usually to prevent minority voters from electing
candidates of their choice. Stated another way, the racially predominant voting
group effectively submerges the voting strength of a politically cohesive racial
minority. If a plaintiff proves these three elements in a FVRA legal action, then
the federal court will consider whether, under the "totality of circumstances",
minority voters have an equal opportunity to elect their chosen candidates in an
at-large election system.
The CVRA removes two of these factors. It eliminates, at the liability stage, what
is known as the "geographically compact" FVRA precondition. It also purports to
make proof under the "totality of the circumstances" test optional (although nearly
every CVRA court case to date has included proof under the totality factors).
Because the CVRA eliminates some of the elements that a plaintiff must prove, a
CVRA claim is substantially more difficult to defend against than a FVRA claim.
As a result of the lower threshold for proving a claim under the CVRA, many
jurisdictions have voluntarily switched to district-based election systems instead
of facing litigation.
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Because of the low standards necessary for a plaintiff to prevail in CVRA
litigation, every public entity defendant since the CVRA was enacted in 2002,
(except one that had the case dismissed after its voters enacted by-district
elections during the pending litigation) has either lost in court or settled. To date,
every government defendant has ultimately been forced to pay at least some
portion of the plaintiff's attorney fees and costs. Awards in contested CVRA
cases have reportedly ranged from approximately $400,000 to over $4,500,000.
Few cases have been fully litigated under the CVRA because many jurisdictions
decide to settle with the plaintiff and a growing number of jurisdictions are
voluntarily choosing to change from an at-large election system to a district-
based election system in order to avoid costly litigation.
For example, in a CVRA action involving the City of Highland, knowing that no
jurisdiction has prevailed in a CVRA action, Highland stipulated to liability and
took the position that the court should adopt cumulative voting as an appropriate
remedy. The parties submitted briefing on the issue, and the court held a three-
day trial in which expert witnesses for both the plaintiff and Highland testified.
After the court held that a district-based election system was the appropriate
remedy, the parties settled the issue of attorneys’ fees, and Highland paid the
plaintiff $1,325,000 in attorneys’ fees and costs. In a CVRA action involving the
City of Rancho Cucamonga, upon settling a substantive issue, the plaintiffs were
ultimately awarded $1,387,599 in attorneys’ fees and costs. Additionally, in an
action involving the City of Palmdale, the judgment contained an award of
attorneys’ fees and costs to the plaintiffs in the amount of $4,500,000 plus
interest.
Because of claims of abuses by some plaintiff's attorneys in CVRA cases,
Elections Code Section 10010 offers a "safe harbor" cap of a maximum of
$30,000 on attorney's fees that a plaintiff would be entitled to recover if the target
city, within 45 days of receipt of the plaintiff’s demand letter, voluntarily adopts a
Resolution of Intent to consider an ordinance to establish a district-based election
system, and then actually adopts such an ordinance within 90 days following the
date it adopted the Resolution of Intent. However, if the City decides not to
change its election system and plaintiff files an action and prevails, Section
10010’s $30,000 cap would not apply, and the City would be liable for plaintiff’s
attorneys’ fees and expert witness costs.
STEPS AND TIMELINE REQUIRED BY THE CVRA
By October 13, 2018 (within 45 days after the City’s August 29, 2018 receipt of
the August 27, 2018 letter from Mr. Shenkman), the City Council will need to
decide if it wants to consider starting a process of establishing district-based
elections. As noted previously, the August 27, 2018 letter threatens costly
litigation if the City Council chooses to not adopt a Resolution of Intent to initiate
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the transition to a district-based election system on or before October 13, 2018. If
successful, such a lawsuit would force a district-based election system upon the
City, with districts drawn by the City, but approved by the Court after a finding of
liability. In addition, election dates for each district could be determined by the
court.
To utilize the state law "safe harbor" and cap potential attorney fees that the City
could be required to pay, the City Council would need to adopt the Resolution of
Intent, attached as Attachment A, to initiate the transition to a district-based
election system on or before October 13, 2018. (Elec. Code § 10010 (e)(3)(A).)
If the City Council adopts the Resolution of Intent, then the CVRA provides a 90-
day period to hold public hearings and thereafter adopt an ordinance that
approves a district-based election system and approves district maps for that
purpose. This 90-day period starts to run from the date the Resolution of Intent is
adopted and includes the following steps and requirements:
1) Prior to drawing a draft map or maps of the proposed boundaries of the
districts, the City would hold at least two “public hearings” over a period of
no more than 30 days, at which time the public will be invited to provide
input regarding the composition of the districts. (Elec. Code §10010(a)(1).)
These “public hearings” are not City Council meetings, but community
meetings organized by the City.
2) After the draft maps are drawn, the City would publish and make available
for release at least one draft map and, if members of the City Council will
be elected in their districts at different times to provide for staggered terms
of office, the potential sequence of the elections would also be published.
(Elec. Code §10010(a)(2).)
3) The City Council would hold at least two additional “public hearings” over
a period of no more than 45 days, at which the public shall be invited to
provide input regarding the content of the draft map or maps and the
proposed sequence of elections, if applicable. These additional public
hearings would be City Council meetings.
4) The first version of a draft map is required to be published at least seven
days before consideration at a public hearing. If a draft map is revised at
or following a public hearing, it is required to be published and made
available to the public for at least seven days before being adopted.
If the City Council choses to adopt the Resolution of Intent by October 13, 2018
to initiate the transition to a district-based election system, an experienced
demographer will assist the City in creating districts that meet legal requirements.
Relatedly, the demographer will coordinate public outreach at some of the public
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hearings and through an online interactive system that would allow the public to
draw and submit proposed districting plans for the Council's consideration.
In order to prepare for this possible step, should the City Council choose to adopt
the Resolution of Intent, the City Attorney has engaged National Demographics
Corporation to participate in the public outreach process, including educating the
public about establishment of districts, including criteria and methodology, for
demographic services relating to the drawing of districts, and to assist in
facilitating and coordinating the public hearings and other processes, including
demographic analysis of all maps proposed by members of the public. National
Demographics Corporations has provided CVRA analysis and districting efforts
for more than 80 cities and 250 school districts in California.
AGREEMENT FOR 90-DAY EXTENSION
A new state law that will take effect on January 1, 2019 (AB 2123) provides for
the opportunity for an additional 90-day extension to the process if an agreement
can be reached between the prospective plaintiff and the City regarding that
extension. However, this law does not provide for an overall extension to the
entire process but just to the 90-day period for holding public hearings and
drawing and adopting maps. The prospective plaintiff, represented by Mr.
Shenkman, has agreed to provide the City this additional 90-day extension
should the City adopt the Resolution of Intent at today’s meeting or by October
13, 2018. A copy of this agreement is attached as Attachment B. This Agreement
has the effect of extending the City’s “safe harbor” protection until April 9, 2019,
prohibiting litigation from Mr. Shenkman’s potential plaintiff during that same time
frame if the City adopts a district-based election system within that time. This
means that rather than having to complete the public hearing, map drawing and
map adoption process by January 9, 2019, the City will have an additional 90
days to do so (until April 9, 2019).
The timeline attached as Exhibit A to the Resolution of Intent has been prepared
to take advantage of the 90-day extension.
FISCAL IMPACT
There will be significant staff and consultant time needed should the City
transition to a district-based election system because the City must conduct at
least five public hearings.
Should the City Council determine to adopt the Resolution of Intent, Mr.
Shenkman could seek up to $30,000 in attorney fees and costs (the “Safe
Harbor” fee) from the City, but the City would be protected from litigation if it
adopted a district-based election system within the statutory time frame.
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There will be additional legal and consultant costs related to this matter. If the
Resolution of Intent is adopted, the City will thereafter need to undertake the
process of public hearings, using the services of a demographer, drawing district
maps, and adopting those maps. Staff will come back to the City Council with a
more specific budget for anticipated costs, but at this point, it is estimated to be
no less than $30,000.
STAFF RECOMMENDATION
Staff recommends that the City Council:
1. Adopt Resolution No. 2018-____ attached as “Attachment A” declaring
the City’s intent to transition to district-based elections; and
2. Approve the Agreement between the City and Mr. Shenkman and his
prospective plaintiffs entitled “Agreement for Extension of Time Period
for Specified Steps Provided by the California Voting Rights Act.”
Attachment A: Resolution of Intent to Transition to Districts
Attachment B: Agreement for Extension of Time Period for Specified Steps
Provided by the California Voting Rights Act
Attachment C: August 27, 2018 Letter from attorney Kevin Shenkman,
claiming that the City's current method of electing the City
Council through at-large elections violates the CVRA
Attachment D: CVRA (Elections Code §§ 14025-14032) and Elections Code
Section 10010
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ATTACHMENT A
RESOLUTION NO. 2018-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, DECLARING ITS INTENT TO TRANSITION
FROM AT-LARGE TO DISTRICT-BASED COUNCILMEMBER
ELECTIONS WITH A SEPARATE DIRECTLY ELECTED MAYOR,
OUTLINING SPECIFIC STEPS TO BE TAKEN TO FACILITATE THE
TRANSITION AND ESTIMATING A TIME FRAME FOR ACTION
PURSUANT TO ELECTIONS CODE SECTION 10010
WHEREAS, members of the City Council of the City of Moorpark (“City”) are
currently elected in “at-large” elections in which each City Councilmember may reside
anywhere in the City and is elected by the registered voters of the entire City (Moorpark
Municipal Code Section 2.04.045); and
WHEREAS, pursuant to Measure D, approved by Moorpark voters on November
8, 1988, the office of Mayor is a separate, directly elected office in the City (Moorpark
Municipal Code Section 2.04.045); and
WHEREAS, California Government Code Section 34886 authorizes the
legislative body of a city of any population to adopt an ordinance, without a vote of
people, to change its method of election of councilmembers from an “at-large” system to
a “district-based” system and with a separately elected mayor, in which each
councilmember is elected only by the voters in the district in which the councilmember
resides and with a separate, directly elected mayor; and
WHEREAS, the California Legislature in amendments to Elections Code Section
10010, has provided a method whereby a jurisdiction can expeditiously change to a
district-based election system; and
WHEREAS, the California Voting Rights Act (“CVRA”), as found in Elections
Code Section 14025 through 14032, generally precludes at-large methods of elections
when there is racially polarized voting and minority vote dilution that impairs the ability
of a protected class to elect candidates of its choice; and
WHEREAS, on August 29, 2018, the City received a letter dated August 27, 2018
from Kevin Shenkman on behalf of the Southwest Voter Registration Education Project
asserting that voting in Moorpark is racially polarized, resulting in minority vote dilution
in violation of the CVRA; and
WHEREAS, pursuant to Elections Code Section 10010 (e)(3)(A), the City has 45
days from the date it received Mr. Shenkman’s August 27, 2018 letter for the City
Council to pass a resolution outlining its intent to transition from an at-large election
system to a district-based election system for the election of Councilmembers, and by
so doing, avail itself of a statutory preclusion on a prospective plaintiff’s ability to
commence an action to enforce the CVRA for an additional 90 days; and
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Resolution No. 2018-
Page 2
WHEREAS, the City Council has weighed the public interests served by the
current at-large election system for Councilmembers, the legal risks of maintaining that
system, the public interests served by City Council consideration of a proposal to
transition to a district-based election system for Councilmembers, and has determined
that the public interests would be best served under the circumstances to consider a
transition to a district-based election system for Councilmembers while retaining the
office of Mayor as a separate, directly elected office; and
WHEREAS, if the City Council passes this Resolution, then pursuant to Elections
Code Section 10010 (e)(3)(B), a prospective plaintiff is precluded from commencing an
action to enforce the CVRA for an additional 90 days from the date the Resolution was
passed; and
WHEREAS, the City and Mr. Shenkman, on behalf of a prospective plaintiff, have
entered into an agreement dated and effective October 11, 2018, to extend the time for
completion of the process of adopting an ordinance to transition to a district-based
election system for an additional 90 days; and
WHEREAS, prior to the City Council’s consideration of an ordinance to establish
district boundaries for a district-based electoral system, California Elections Code
Section 10010 requires all of the following:
1. The City shall hold at least two (2) “public hearings” over a period of no
more than thirty (30) days, at which the public will be invited to provide input regarding
the composition of the districts; and
2. After all draft maps are drawn, the City shall publish and make available
for release at least one draft map and, if members of the City Council will be elected in
their districts at different times to provide for staggered terms of office, the potential
sequence of the elections shall also be published; and
3. The City Council shall also hold at least two (2) additional “public
hearings” over a period of no more than forty-five (45) days, at which the public shall be
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 (7) 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 (7) days before being adopted.
WHEREAS, the City, through its City Attorney, has retained an experienced
demographer to assist the City to develop a proposal for a district-based elections
system; and
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Resolution No. 2018-
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WHEREAS, pursuant to Government Code Sections 34886 and 34873, the
adoption of a district-based elections system will not affect the terms of a
Councilmember then serving on the effective date of the ordinance that approves a
district-based election system.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council hereby expresses its intent to consider adoption of
an ordinance to transition to a district-based elections system for City Councilmembers,
as authorized by Government Code Section 34886 for use in the City’s General
Municipal Election for City Councilmembers commencing November 2020.
SECTION 2. The City Council directs staff to work with the City Attorney and
demographer, and other appropriate consultants as needed, to provide a detailed
analysis of the City’s current demographics and any other information or data necessary
to prepare a draft map that divides the City into four voting districts in a manner
consistent with the intent and purpose of the California Voting Rights Act and the
Federal Voting Rights Act.
SECTION 3. The City Council hereby approves the tentative timeline as set forth
in Exhibit A (the “Tentative Timeline”), attached to and made a part of this Resolution,
for conducting a public process to solicit public input and testimony on proposed district-
based electoral maps before adopting any such map.
SECTION 4. The Tentative Timeline may be adjusted by the City Manager as
deemed necessary, provided that such adjustments shall not prevent the City from
complying with the time frames specified by Elections Code Section 10010, as such
timeframes have been extended by agreement of the prospective plaintiff.
SECTION 5. The City Council directs staff to post information regarding the
proposed transition to a district based election system, including maps, notices,
agendas and other information and to establish a means of communication to answer
questions from the public.
SECTION 6. The City Council hereby directs staff to set November 14, 2018 as
the first public hearing required by the City at which the public will be invited to provide
input regarding the composition of the districts.
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Resolution No. 2018-
Page 4
SECTION 7. The City Clerk shall certify to the adoption of this resolution and
shall cause a certified resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this ____ day of October, 2018.
Janice S. Parvin, Mayor
ATTEST:
Maureen Benson, City Clerk
Exhibit “A” - Tentative Timeline - Consideration and Implementation of “District-
Based” Election Method
13
EXHIBIT “A”
TENTATIVE TIMELINE - CONSIDERATION AND IMPLEMENTATION OF “DISTRICT-
BASED” ELECTION METHOD
Action Allotted Time Suggested Timeline
Letter Asserting Violation
of CVRA dated August
27, 2018 Received
August 29, 2018
Open Session
Discussion Item
Discretionary October 3, 2018 (Regular
Council Meeting)
Consider Adoption of
Resolution of Intent to
Transition from at-large
to district-based
elections
45 Days from Receipt of Letter (Elec.
Code § 10010(e)(3)(A))
Period for Public Outreach re
Districting Process ((Elec. Code
§ 10010(a)(1))
October 11, 2018 (Special
Meeting; Last Date Council
is Available Before
Saturday, October 13,
2018 Deadline)
First Public Hearing on
District Composition
(Pre-Map Drawing) - not
intended as a City
Council meeting
November 14, 2018
Second Public Hearing
on District Composition
(Pre-Map Drawing) - not
intended as a City
Council meeting
Within 30 Days of First Public Hearing
(Elec. Code § 10010(a)(1))
December 12, 2018
Demographer Draws
District Maps
December 12, 2018 -
December 31, 2018
Draft Map(s) and
Sequencing Released to
Public
7 Days Prior to Consideration of
Map(s) at Hearing (Elec. Code
§ 10010(a)(2))1
January 9, 2019 or
January 16, 2019
First Public Hearing on
District Maps and
Sequencing - this is
intended to be a City
Council meeting
January 16, 2019 or
January 23, 2019
1 The 7-day public review period is required each time a new map is presented to the public for review. The public
review required for additional maps could delay the schedule.
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Resolution No. 2018-
Page 6
Revised Map(s) and New
Draft Maps and
Sequencing Released to
Public
7 Days Prior to Hearing (for new
maps) or Adoption (of Revised Map)
(Elec. Code § 10010(a)(2))2
January 31, 2019
Second Public Hearing
on District Maps and
Sequencing - this is
intended to be a City
Council meeting
Introduction of Ordinance
Within 45 Days of First Public Hearing
on District Maps and Sequencing
(Elec. Code § 10010(a)(2))
February 6, 2019 or
February 13, 2019
Final Public Hearing and
Adoption of Ordinance
No sooner than 5 Days After First
Introduction (Gov. Code § 36934)
February 20, 2019
Safe Harbor Deadline -
as extended by
Agreement
180 Days After Adopting Resolution of
Intent (Elec. Code § 10010(e)(3)(B))
April 9, 2019
2 The 7-day public review period is required each time a new map is presented to the public for review. The public
review required for additional maps could delay the schedule.
15
ATTACHMENT B
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ATTACHMENT B
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ATTACHMENT B
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ATTACHMENT B
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VIA CERTIFIED MAIL
August 27, 2018
Attn: City Council
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
Re: Violation of California Voting Rights Act
Dear City Council,
28905 Wight Road
Malibu, California 90265
(310) 457-0970
kishenkman@shenkmanh ugh es. com
I write on behalf of our client, Southwest Voter Registration Education Project.
The City of Moorpark ("Moorpark") relies upon an at-large election system for
electing candidates to its City Council. Moreover, voting within Moorpark is
racially polarized, resulting in minority vote dilution. Therefore, Moorpark's at-
large elections violate the California Voting Rights Act of 2001 ("CVRA").
The CVRA disfavors the use of so-called "at-large" voting -an election method
that permits voters of an entire jurisdiction to elect candidates to each open seat.
See generally Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 667
("Sanchez"). For example, if the U.S. Congress were elected through a nationwide
at-large election, rather than through typical single-member districts, each voter
could cast up to 435 votes and vote for any candidate in the country, not just the
candidates in the voter's district, and the 435 candidates receiving the most
nationwide votes would be elected. At-large elections thus allow a bare majority
of voters to control every seat, not just the seats in a particular district or a
proportional majority of seats.
Voting rights advocates have targeted "at-large" election schemes for decades,
because they often result in "vote dilution," or the impairment of minority groups'
ability to elect their preferred candidates or influence the outcome of elections,
which occurs when the electorate votes in a racially polarized manner. See
Thornburg v. Gingles, 478 U.S. 30, 46 (1986) ("Gingles"). The U.S. 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 minorities.
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Id. at 47; see also id. at 48, fn. 14 (at-large elections may also cause elected
officials to "ignore [minority] interests without fear of political consequences"),
citing Rogers v. Lodge, 458 U.S. 613, 623 (1982); White v. Register, 412 U.S. 755,
769 (1973). "[T]he majority, by virtue of its numerical superiority, will regularly
defeat the choices of minority voters." Gingles, at 4 7. When racially polarized
voting occurs, dividing the political unit into single-member districts, or some
other appropriate remedy, may facilitate a minority group's ability to elect its
preferred representatives. Rogers, at 616.
Section 2 of the federal Voting Rights Act ("FVRA"), 42 U.S.C. § 1973, which
Congress enacted in 1965 and amended in 1982, targets, among other things, at-
large election schemes. Gingles at 37; see also Boyd & Markman, The 1982
Amendments to the Voting Rights Act: A Legislative History (1983) 40 Wash. &
Lee L. Rev. 1347, 1402. Although enforcement of the FVRA was successful in
many states, California was an exception. By enacting the CVRA, "[t]he
Legislature intended to expand protections against vote dilution over those
provided by the federal Voting Rights Act of 1965." Jauregui v. City of Palmdale
(2014) 226 Cal. App. 4th 781, 808. Thus, while the CVRA is similar to the FVRA
in several respects, it is also different in several key respects, as the Legislature
sought to remedy what it considered "restrictive interpretations given to the
federal act." Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001-2002
Reg. Sess.) as amended Apr. 9, 2002, p. 2.
The California Legislature dispensed with the requirement in Gingles that a
minority group demonstrate that it is sufficiently large and geographically compact
to constitute a "majority-minority district." Sanchez, at 669. Rather, the CVRA
requires only that a plaintiff show the existence of racially polarized voting to
establish that an at-large method of election violates the CVRA, not the
desirability of any particular remedy. See Cal. Elec. Code § 14028 ("A vioiation
of Section 14027 is established if it is shown that racially polarized voting occurs
... ")(emphasis added); also see Assem. Com. on Judiciary, Analysis of Sen. Bill
No. 976 (2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 3 ("Thus, this bill
puts the voting rights horse (the discrimination issue) back where it sensibly
belongs in front of the cart (what type of remedy is appropriate once racially
polarized voting has been shown).")
To establish a violation of the CVRA, a plaintiff must generally show 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." Elec. Code § 14028(a). The CVRA
specifies the elections that are most probative: "elections in which at least one
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candidate is a member of a protected class or elections involving ballot measures,
or other electoral choices that affect the rights and privileges of members of a
protected class." Elec. Code § 14028(a). The CVRA also makes clear that
"[ e ]lections conducted prior to the filing of an action . . . are more probative to
establish the existence of racially polarized voting than elections conducted after
the filing of the action." Id.
Factors other than "racially polarized voting" that are required to make out a claim
under the FVRA -under the "totality of the circumstances" test -"are probative,
but not necessary factors to establish a violation of' the CVRA. Elec. Code §
14028( e ). These "other factors" indude "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." Id.
Moorpark's at-large system dilutes the ability of Latinos (a "protected class")-to
elect candidates of their choice or otherwise influence the outcome ofMoorpark's
council elections.
Moorpark' s election history is illustrative. In the last twenty years, three Latino
candidates sought election to Moorpark City Council: Ernesto Acosta in 1998,
Bernardo Perez in 2002, and Jose Magdalano in 2008. Despite receiving
significant support from Latino voters, Mr. Acosta, Mr. Perez, and Mr. Magdalano
were unable to secure seats on the City Council due to the bloc voting of the non-
Latino majority. Mr. Perez had even been a city council member and the mayor of
Moorpark prior to his 2002 loss. Further, all three of the aforementioned
candidates were "last place" in their respective competitions.
As mentioned above, in a period of twenty years, only three Latino candidates
competed in Moorpark City Council elections. The paucity of Latino candidates
to seek election to the Moorpark City Council reveals vote dilution. See Westwego
Citizens for Better Government v. City of Westwego, 872 F. 2d 1201, 1208-1209,
n. 9 (5th Cir. 1989).
According to recent data, Latinos comprise approximately 31.41 % of the
population of Moorpark. However, there are currently no Latinos on the City
Council, nor has there been a single Latino on the council since Mr. Perez in 1998.
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The absence of Latino council members is hard to ignore, yet somehow, it has
been ignored. Further, the effects of this absence have spread to other parts of city
government. Specifically, of the twenty-eight appointed city officials, only three
are Latino.
As you may be aware, in 2012, we sued the City of Palmdale for violating the
CVRA. After an eight-day trial, we prevailed. After spending millions of dollars,
a district-based remedy was ultimately imposed upon the Palmdale City Council,
with districts that combine all incumbents into one of the four districts.
Given the historical lack of Latino representation on the City Council in the
context of racially polarized elections, we urge Moorpark to voluntarily change its
at-large system of electing council members. Otherwise, on behalf of residents
within the jurisdiction, we will be forced to seek judicial relief. Please advise us
no later than October 16, 2018 as to whether you would like to discuss a voluntary
change to your current at-large system.
We look forward to your response.
Kevin I. Shenkman
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ELECTIONS CODE
DIVISION 14. ELECTION DAY PROCEDURES [14000 ‐ 14443]
( Division 14 enacted by Stats. 1994, Ch. 920, Sec. 2. )
CHAPTER 1.5. Rights of Voters [14025 - 14032]
( Chapter 1.5 added by Stats. 2002, Ch. 129, Sec. 1. )
14025.
This act shall be known and may be cited as the California Voting Rights Act of
2001.
(Added by Stats. 2002, Ch. 129, Sec. 1. Effective January 1, 2003.)
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 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 purposes
of this section to prove that elections are characterized by racially polarized voting.
(Amended by Stats. 2016, Ch. 86, Sec. 121. (SB 1171) Effective January 1, 2017.)
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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.
(Added by Stats. 2002, Ch. 129, Sec. 1. Effective January 1, 2003.)
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 elections involving ballot measures, or other electoral 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.
(Added by Stats. 2002, Ch. 129, Sec. 1. Effective January 1, 2003.)
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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.
(Added by Stats. 2002, Ch. 129, Sec. 1. Effective January 1, 2003.)
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 the court finds the action to
be frivolous, unreasonable, or without foundation.
(Added by Stats. 2002, Ch. 129, Sec. 1. Effective January 1, 2003.)
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.
(Added by Stats. 2002, Ch. 129, Sec. 1. Effective January 1, 2003.)
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.
(Added by Stats. 2002, Ch. 129, Sec. 1. Effective January 1, 2003.)
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