At their February 6, 2018 meeting, Jim Nevin, local resident, informed the Ione City Council that he would be initiating a California Voting Rights Act (CVRA) lawsuit against the citizens of Ione for “racially polarized voting.” In Mr. Nevin’s opening comments, he stated:
“First came Modesto, Compton, Anaheim, Escondido, Whittier, Palmdale and other California cities being pushed into the growing ranks of cities under pressure to change how they elect their City officials. Activists seeking minority representation on City Councils are clamoring to have members elected by geographic district. Diverse cities that hold “at-large” elections such as Ione have proved vulnerable to lawsuits under the 11 year old California Voting Rights Act. In 2002, the CVRA Senate Bill 976 was signed into law. The Act makes fundamental changes to minority voting right law in California. As of January 1, 2003 the CVRA altered established paradigms and proofs and defenses under federal voting right acts. Thus, making it easier for plaintiffs in California to challenge allegedly discriminatory voting practices.”
Later in his comments, Mr. Nevin stated:
“I would like the Council to move forward on their own in eliminating the “at-large” elections and go with district representatives to more accurately represent the demographics of the City. One quick example, 46 percent of the populous voted in favor of legalizing marijuana, yet there wasn’t a representative on the Council that had that opinion. I do not want to see the City get involved in a lawsuit, unnecessary litigation that could prove costly, so I would pray that the Council would move forward on their own to address this issue. However, if there is a lack of movement within the next month, then we really have no alternative but to seek legal remedy. Again, I do not want to see the Council with any more litigation than it already is, so please in all sincerity, let’s put this on the agenda, let’s take it forward, get the public hearing scheduled to talk about districting so we can get this settled before the November election.”
A full copy of Mr. Nevin’s February 6, 2018 comments related to “by-district” elections can be obtained by making a Public Records Request to Janice Traverso, City Clerk, Ione City Hall, #1 East Main Street, Ione, California 95640.
As stated earlier, the California Voting Rights Act was signed into law in 2002. The law’s intent was to expand protections against vote dilution over those provided by the Federal Voting Rights Act of 1965. The passage of the CVRA has made it easier for plaintiffs to prevail in lawsuits against public entities that elected their members to its governing body through “at-large” elections. A plaintiff need only to prove the existence of “racially polarized voting” to establish liability under the law. Proof of intent on the part of voters or elected officials to discriminate against a protected class is not required.
As a result, cities throughout the state have increasingly been facing legal challenges to their “at-large” election systems. Almost all have settled claims out of court by agreeing to voluntarily change to district-based elections. Those that have defended CVRA challenges have ultimately adopted, or have been forced to adopt, district based elections. The CVRA grants a prevailing plaintiff the right to recover reasonable attorneys’ fees and expert witness fees. This has resulted in payment of huge amounts of money in attorneys’ fees by cities that have chosen to litigate the CVRA challenge.
On September 28, 2016, the Governor signed AB 350 into law, codified as Elections Code Section 10010 (effective on January 1, 2017). The legislation attempts to provide a “safe harbor” from CVRA litigation for cities that chose to voluntarily transition to a district election system. If a city receives a demand letter, the city is given 45 days of protection from litigation to assess its situation. If within that 45 days, a city adopts a resolution declaring the Council’s 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 a CVRA action for an additional 90-day period. Thus, the legislation provides time (a safe harbor) for the City to assess and implement a transition to a district-based election system before a lawsuit may be filed. The legislation sets forth a number of steps a city must take in the effort to assess and transition to a district-based election system, including five (5) public hearings. Under AB 350, a city’s liability is capped at $30,000 if it follows this process after receiving a CVRA notice letter, and the plaintiff must show financial documentation that these costs were actually incurred.
Should the Council choose to adopt a Resolution of Intent to Establish District Elections, it will have an opportunity to determine the number of districts to be formed, how their boundaries are defined, whether to have a directly elected Mayor, and the timing and sequence of district elections. By law, there is no ability to cut short or extend the terms of sitting Ione Councilmembers through this process.
Under AB 350, if a demand letter is received, the City has 45 days to respond. Assuming an affirmative vote to move to district elections, the City has another 90 days to convert. The total time for completing the districting process is approximately 135 days. During that time, the City must hold two public hearings for input on district composition before maps are drawn, release draft maps at least 7 days before the next public hearing, and hold two public hearings on maps, and then adopt an enacting ordinance. Once “by-district” elections are implemented, citizens would only be voting for candidates to represent their district.
If the City Council decides to move forward with district elections, there will be significant staff time needed to transition to district-based elections and to administer the process including the need for five (5) public hearings. The City will also incur the costs for a demographer, elections consultant, and special legal counsel. Staff anticipates these costs being approximately $150,000 and will be paid for from the City’s General Fund account. Additionally, the City will be required to reimburse the plaintiffs for their documented attorney’s fees and costs up to a combined total of $30,000. If the City Council chooses to maintain at-large elections and defend a potential lawsuit, the costs and attorneys’ fees could be substantial.
The Ione City Council will be holding a public hearing at Evalynn Bishop Hall on Tuesday, April 3 at 7 p.m. to discuss whether the citizens of Ione want to move towards “by-district” elections. Evalynn Bishop Hall is located at 600 S. Church, Ione CA 95640. Mr. Nevin has been invited to present his position as to why “at-large” elections in Ione are racially polarized and his plans to litigate Ione citizens into requiring “by-district” elections. The Ione City Council hopes you are able to attend this important meeting that will change the way you elect your local Councilors.