Implementing Trustee Area Elections: Procedural & Substantive Considerations

Transcription

1 Implementing Trustee Area Elections: Procedural & Substantive Considerations A Presentation by: Chris Skinnell Nielsen Merksamer Parrinello Gross & Leoni, LLP to the San Diego County Board of Education August 9, 2017 Trustee Area Elections 1

2 The California Voting Rights Act of 2001 ( CVRA ) Background & Provisions Trustee Area Elections 2

3 Application of the CVRA Enacted in 2002, the CVRA prohibits at-large electoral systems that impair the right to vote of a protected class: At-large elections From-Trustee Area Elections Combination Systems Multi-member Areas? Alternative Systems? Does NOT apply to single-member trustee area elections known as by-trustee area elections. Trustee Area Elections 3

4 Background of the CVRA Based on Section 2 of the federal VRA. Thornburg v. Gingles, 478 U.S. 30 (1986): A Section 2 plaintiff challenging an at-large voting system must first establish the three Gingles threshold preconditions: Sufficient numbers and compactness Political cohesion of the minority group Third, that the white majority votes sufficiently as a bloc to enable it... to defeat the minority s preferred candidate. Id. at (internal citations and footnote omitted). If the three preconditions are met, then must proceed to totality of circumstances to assess whether there is a discriminatory effect. Trustee Area Elections 4

5 What s Prohibited? Not entirely clear, but Plaintiffs at least need to show: 1. At-large election system 2. Voting patterns correlated with the race of the voter 3. Impairment of the ability of voters in the protected class to elect the candidate of their choice 4. The minority-preferred minority candidate who is also of the same protected class (sometimes) loses. Which other FVRA factors are required, and the exact elements, have never been defined by an appellate court, But, under the Act s terms, plaintiffs need NOT prove a majorityminority district can be created to remedy the alleged violation. Trustee Area Elections 5

6 A New Theory for Plaintiffs: Influence Districts In Bartlett v. Strickland, 556 U.S. 1 (2009), the U.S. Supreme Court rejected a claim that failure to create an influence district could give rise to federal liability. The CVRA, however, seems to anticipate it. What constitutes a failure to provide adequate influence? Good question! A number of courts have recognized that determining what constitutes an adequate amount of influence is an inquiry with no standards. See, e.g., Ariz. Minority Coalition for Fair Redistricting v. Ariz. Indep. Redistricting Comm n, 366 F. Supp. 2d 887, 906 (D. Ariz. 2005); Rodriguez v. Pataki, 308 F. Supp. 2d 346, 379 (S.D.N.Y.), aff d, 543 U.S. 997 (2004)). Trustee Area Elections 6

7 What Defenses Are Available? Sanchez v. Modesto seemed to indicate it s basically a federal action with compactness at the remedy stage. So possible defenses include: No Racial Bloc Voting (Methodological Defects) Numerosity Inadequate Lack of Compactness Minority-Preferred, Minority Candidates Elected Minority-Preferred, Non-Minority Candidates Elected Totality of the Circumstances Lack of Remedy As-Applied Constitutional Challenge Trustee Area Elections 7

8 The CVRA Safe Harbor By-Trustee Area Elections A school district that elects by-trustee area has no liability under the CVRA. Trustee Area Elections 8

9 Effects of the CVRA Though the CVRA passed in 2002, activity was slight prior to the 2010 Census. A handful of cases, all of which settled. Following the 2010 Census, activity ramped up. Since that time hundreds of school districts, cities, special districts, community college districts, and one county have abandoned at-large voting most voluntarily, some after being sued. Jauregui v. City of Palmdale, 226 Cal. App. 4th 781 (2013). Trustee Area Elections 9

10 Costs of Litigation Under the bill as originally enacted, reasonable attorneys fee awards to prevailing plaintiffs are mandatory, but if the jurisdiction fixes the problem and the case is dismissed as moot, under California Supreme Court case law fees will only be awarded if plaintiffs gave a reasonable opportunity to fix the problem before filing suit. The City of Modesto is reported to have paid $1.7 million to its attorneys and $3.0 million to plaintiffs attorneys. The case never even went to trial, though it did get litigated through the appeals courts up to the U.S. Supreme Court. City of Tulare reportedly paid $250,000. Tulare Local Healthcare District paid $500,000 City of Escondido: reportedly $585,000 City of Palmdale: reportedly $4.5 million through appeal San Mateo County: $650,000 See Voting Rights Cases in California & Settlement Costs, Antelope Valley Times (May 7, 2015), online at Trustee Area Elections 10

11 Legislative Response: AB 350 Certain jurisdictions (City of Whittier, Cerritos Community College District) were sued by would-be plaintiffs, even after indicating their intention to move forward with district-based elections. They were sued because, had they changed without litigation pending, no attorneys fees would have been due. In response to lobbying by the League of California Cities and others, AB 350 adopted a requirement that would-be plaintiffs send a demand letter to a jurisdiction before filing suit, and provides jurisdictions with a grace period (up to 135 days) within which to adopt districts/trustee areas. If it does so, the plaintiffs attorneys can demand reimbursement of their costs without filing suit, but costs and fees are capped at $30,000. If the jurisdiction does not comply within the grace period, the plaintiffs can file suit and seek reimbursement of costs and fees without the $30,000 cap. If the jurisdiction commences the process before receiving a demand letter, it is not on the hook for any costs and fees to would-be plaintiffs. Trustee Area Elections 11

12 Process for Changing Electoral System to Implement By-Trustee Area Elections Trustee Area Elections 12

13 Traditional Ed. Code Process for Changing Electoral System County Committee has sole authority to change a school district s electoral system. County Committees can do so on their own or in response to a district s request. Generally, a school district s request to the County Committee was accompanied by a school board-approved proposed map for single-member trustee areas vetted through a community process. County Committee required to hold at least one public hearing in the District. Voters must approve the change. The State Board of Education can approve a waiver of the election requirement. Trustee Area Elections 13

14 More on AB 350 New Procedures In addition to addressing attorneys fees, AB 350 also established a series of procedural requirements for adopting district-based elections. Now, if a jurisdiction receives a demand letter, it must decide whether to move toward trustee areas within 45 days, during which the would-be plaintiff cannot file suit. If it resolves to move to trustee areas, would-be plaintiffs cannot file suit for an additional 90 days. AB 350 now requires at least five public hearings: Two initial hearings, no more than 30 days apart, to receive public input. These hearings must take place before any draft maps are drawn. Two additional informational hearings to receive public input on proposed maps. Must take place within a period of 45 days, and cannot commence until draft maps have been published for at least seven days. A final hearing, after which the jurisdiction can vote to adopt a map. If a 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. Trustee Area Elections 14

15 Harmonizing AB 350 & Ed. Code AB 350 was clearly drafted without school district procedures in mind. It makes no mention of County Committees. It requires adoption by ordinance. When the Committee resolves to adopt a trustee area plan proposed by, or at least considered by, the school district, there is no indication in AB 350 that the Legislature intended that school trustee areas be subject to 10 public hearings instead of five. If the County Committee initiates the process on its own, rather than in response to a district s request, or if it rejects a district s map and proceeds to adopt its own, the Committee should conduct all five hearings itself. Trustee Area Elections 15

16 Process: Sample Timeline Activity District Formally Resolves to Adopt Trustee Areas; Adopt Criteria and Tentative Calendar; Related Steps Two Public Hearings before any maps are drawn Draft Maps and Election Rotation Published Two additional Public Hearings to receive input Final Public Hearing to adopt proposal/public Hearing on Waiver Application Submit Trustee Area Lines to County Committee/ Waiver to SBE San Diego County Committee Public Hearing(s) Timing Within 45 days of receiving demand letter No more than 30 days apart At least 7 days prior to next round of public hearings No more than 45 days apart At least 7 days after changes to map proposed for adoption and within 90 days of District s decision to adopt trustee area elections As expeditiously as possible As expeditiously as possible State Board of Education Hearing on Waiver Application Must be approved by SBE at least 120 days prior to district s next election Implement Adopted Trustee Areas November 2018/2020 Trustee Area Elections 16

17 Election Waiver (Educ. Code et seq.) Rests in the hands of the State Board of Education; district makes application directly to SBE. Permits prompt resolution. Failure of the change at the ballot box threatens to put the district at risk of more costly litigation that may still result in trustee area elections, just trustee areas drawn by a court. Trustee Area Elections 17

18 Evaluation of Proposed Trustee Areas for Legal Compliance Trustee Area Elections 18

19 Drawing the Lines Legal Considerations: Population Equality Overriding criterion is total population equality (see Reynolds v. Sims, 377 U.S. 533 (1964); Ed. Code ). Unlike congressional districts, local electoral districts do not require perfect equality some deviation acceptable to serve valid governmental interests. Total deviation less than 10% presumptively constitutional. (Caution: the presumption can be overcome!) Redistricting in Trustee Area Elections 19

20 Drawing the Lines Legal Considerations: Federal VRA Section 2 of the federal Voting Rights Act prohibits electoral systems (including district plans), which dilute racial and language minority voting rights by denying them an equal opportunity to nominate and elect candidates of their choice. Language minorities are specifically defined in federal law: to mean persons of American Indian, Asian American, Alaskan Natives or Spanish heritage. CVRA expressly adopts the definition of language minority. Creation of minority districts required only if the minority group can form the majority in a single member district that otherwise complies with the law. Bartlett v. Strickland, 556 U.S. 1 (2009). California Voting Rights Act is silent with respect to the shape of electoral districts, so long as they are used. Trustee Area Elections 20

21 Voting Rights Act: Cracking District 1 Minority Voters Minority Voters District 4 District 2 District 3 Trustee Area Elections 21

22 Voting Rights Act: Packing District 1 District 4 Minority Voters Minority Voters District 2 District 3 Trustee Area Elections 22

23 Drawing the Lines Legal Considerations: No Gerrymandering The Fourteenth Amendment restricts the use of race as the predominant criterion in drawing districts and the subordination of other considerations. Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995). Looks matter! Bizarrely shaped electoral districts can be evidence that racial considerations predominate. (See next slide, NC CD 12 stretched 160 miles across the central part of the State, for part of its length no wider than the freeway right-of-way.) But bizarre shape is not required for racial considerations to predominate. Fourteenth Amendment does not, however, prohibit all consideration of race in redistricting. Easley v. Cromartie, 532 U.S. 234 (2001). Focus on communities of interest. Trustee Area Elections 23

24 Drawing the Lines Legal Considerations: No Gerrymandering Trustee Area Elections 24

25 Legal Considerations: Other Permissible Criteria Topography. Geography. Cohesiveness, contiguity, compactness and integrity of territory. Communities of interest. See Elec. Code 22000; Educ. Code Trustee Area Elections 25

26 Legal Considerations: Other Criteria Approved by Courts Preventing head-to-head contests between incumbents, to the extent reasonably possible. Respecting the boundaries of political subdivisions (e.g., school attendance areas, city boundaries, etc.). Use of whole census geography (e.g., census blocks). Other non-discriminatory, evenly applied criteria (e.g., location of school facilities, planned development). Political considerations are inevitable. Trustee Area Elections 26

27 Questions? Trustee Area Elections 27

28 Implementing Trustee Area Elections: Procedural & Substantive Considerations A Presentation by: Chris Skinnell Nielsen Merksamer Parrinello Gross & Leoni, LLP to the San Diego County Board of Education August 9, 2017 Trustee Area Elections 1