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Saturday, October 6, 2018

Sunnyvale: District Elections - Part 3

We got a letter.
It is an important letter.
The letter (sent October 2nd, 2018) says Sunnyvale is violating the California Voting Rights Act and therefore must change from "at-large" elections to district elections.

Link to this post:

Part 1 - announcing with details the September 5th, 2018 special city council meeting to consider going to district elections:

Part 2 - considering some of the implications of the move to district elections:

Part 4 - California Code #34886.  The way the City Council could go to district elections.

Part 5 analysis received by Sunnyvale with sample district map and voter data:

Part 6 - Will there be enough candidates in district elections?

A Letter was received by The City of Sunnyvale sent October 2nd, 2018 initiating the legal process which in all likelihood will result in Sunnyvale moving to district elections.  Currently, Sunnyvale has a "numbered seats, all seats at-large" election system.  A photo-copy of the letter is included below but first a summary and some notes.

There is some media coverage of this here:

The letter was sent by Goldstein, Borgen, Dardarian & Ho (GBDH).
Principal attorneys at GBDH
From Left to right: Barry Goldstein, Laura L. Ho, Linda M. Dardarian, and David Borgen
GBDH "is one of the oldest and most successful plaintiffs’ public interest class action law firms in the country.  GBDH represents individuals against large companies and other entities in complex class and collective action lawsuits.  The firm has three primary practice areas: employment discrimination, wage and hour violations, and disability access, and also brings other public interest cases, including voting rights, environmental protection, and consumer cases.  The firm has a national practice, litigating cases in federal and state courts throughout the country."

From their website:

Summary of the letter from the GBDH Law firm, the Asian Law Alliance, and Asian Law Caucus.

Representing a registered voter in Sunnyvale of Asian ethnicity, the letter says:
  1. Sunnyvale's current 7-seat at-large election system violates the California Voting Rights Act (CVRA).
  2. Asians and Asian Americans are 43.3% of residents and 30.8% of voters which is a proportion not represented on the city council now or in the past.
  3. Several Asian candidates have lost previous elections to non-Asians
  4. The writers of the letter are open to extending the "safe harbor" provisions (45 days to pass a resolution, 90 days after that to pass an ordinance to finish the process) before January 1st, 2019, when a new law takes effect limiting safe-harbor extensions to 90 days.

Item 4 above is very, very important.  It is found in the last half of the last paragraph on the 3rd and last page of the letter from GBDH (with other civil rights attorneys).  The letter is reproduced below.

"A very important thing to do"
The current "safe harbor" rule in the CVRA limits to $30,000 the attorney fees that must be paid to those filing a complaint under the CVRA.  That limit goes away if 45 days pass from receipt of the letter without the City of Sunnyvale officially moving to remedy the situation AND concluding the process by 90 days after that initial move.  Both have to happen within the specified time of 45 days followed by 90 days to maintain the limit.

The last paragraph of the letter offers to extend the "safe harbor" provision past the 45 and 90 day limits.  Currently, the amount of extension time they can agree to is not limited but effective January 1st, 2019, a new law kicks in that limits the maximum allowable time extension to 90 days.
Summary presented to CA League of cities by  RWG Law firm;-Aziz-Johnson-Markman;-Californi.aspx

"Safe Harbor" - but not for long
From a California League of Cities document of May, 2018:
  1. "The City has 45 days to to "adopt a resolution outlining its intention to transition from at-large to district-based elections." 
  2. "In short, a jurisdiction receiving a CVRA demand letter has 45 days to declare their intent to change their election system and ...
  3. ...then 90 days after that declaration to adopt the change."  
  4. The City has a maximum of 135 days to get to enacting the ordinance."
Above from:

Once the safe harbor time is over, there is no limit on attorney fees. 

In the case of Palmdale, that city had to pay $4,500,000 for appellant's legal fees, and probably about the same for their own attorneys - so about $9M to $10M in legal fees.  This is a lot of money but it was largely because Palmdale took a long time in court to resolve the issue, during which time they had another election "at large" and therefore in violation of the CVRA.

The conclusion was the same.  They had to go to district elections.  In fact, the judge ruled that the last elections held "at-large" were illegal and were therefore null.  Palmdale needed to go to another "special" election with districts.  The last time Sunnyvale had a special election, it cost close to $1M.

Palmdale: 157,000 residents.
$15,000,000 poorer

Many people are for district elections but not everyone.  At the Sunnyvale City Council meeting on September 5th, 2018, several people spoke passionately against it.  It doesn't matter.  Like it or not, fight it or not, Sunnyvale will be going to district elections.  The CVRA does not specify district elections as the only remedy, but the rulings of the courts to date have interpreted it so that only district elections satisfy the CVRA.

Judges rule
The Courts ruled in 2014 in the case of Jauregui v. City of Palmdale that even though the at-large system is in the city charter, state law supersedes local law so charter provisions running counter to state law are inoperative.

"When its at-large voting system was challenged in recent years, the City of Palmdale argued on appeal that it was not subject to the California Voting Rights Act because it is a charter city.  (Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781.) In evaluating the City’s at-large voting charter provision, the Appeals Court held that while the provision addressed a municipal affair, it nevertheless stood in contradiction to state law because the evidence showed that in application the provision resulted in minority vote dilution. Thus, the court ruled that the CVRA applied to charter cities."

In addition: "The Appeals Court in Jauregui also affirmed the trial court’s injunction that enjoined the certification of the city council election results pending implementation of the trial court’s final plan."

In other words, the last election of Palmdale was invalid because they did not go to district elections as the court ordered them to.  Palmdale's was thus required to hold a special election using a district map.

Above from:

Palmdale, CA,_California
As a side note, the Palmdale case was litigated by the same law firm, GBDH, that sent Sunnyvale the letter.

At the time of the special September 5th city council meeting on district elections, I did not know a simple majority vote of the city council could make it happen.  If I had known I would have moved to do just that.  I think everyone assumed, as I did, that we had to amend the city charter first.  Now that we have the letter, we should pass an ordinance well within the 45 day limit to move to district elections before the 2020 elections.  We can amend the charter to bring it into alignment later at the general election of 2020.  Since that provision of the city charter is over-ridden by California law, changing it is just a formality.

Drawing district boundaries:
Here are some more slides on how to draw the new district boundaries before the 135 days runs out.  At least 4 public hearings are required.

Summary presented to CA League of cities by  RWG Law firm

The letter below was sent to me by a friend (David Wessel) who received it from the law firm of "Goldstein, Borgen, Dardarian, and Ho".  It was not under any attorney-client privilege.  Mr. Wessel was trying to forestall the letter so he could get Sunnyvale to do more on its own without the time pressure.  I have talked with a newspaper reporter and several others who saw the letter before I did.  I believe GBDH and the other attorneys who signed the letter would like the issue well known and understood.

Here is the letter from GBDH (3 separate pages).  Click on image to enlarge:

First page:
Page 1
Second page

Page 2
Third and final page:
Page 3

There will be more to come, but for now, this is...