Introduction to the California Voting Rights Act (CVRA) Peter Fagen, F3 Larry Ferchaw, CS James Ayden, F3 July 24, 2017

Introduction to the California Voting Rights Act (CVRA) Peter Fagen, F3 Larry Ferchaw, CS James Ayden, F3 July 24, 2017 1

Purpose of Discussion Introduction to CVRA Discuss where District stands Next Steps 2

What is the California Voting Rights Act ( CVRA )? Took effect January 1, 2003 Prohibits the use of at-large elections when such an election system: impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election. (Elections Code 14027.) 3

Does not require intent The CVRA is far broader than its federal counterpart Much easier for a plaintiff to bring a claim against a government entity Proof of intent on the part of voters or elected officials to discriminate against a protected class is not required (Elections Code 14028(d).) 4

Right to Attorneys and Expert Fees CVRA grants a prevailing plaintiff the right to recover reasonable attorneys fees AND expert witness fees. If district wins, it is not granted the same right. (Elections Code 14030.). 5

Major CVRA Litigation to Date Recent Years: $110,000 (Gomez v. Hanford Joint Union School District) $3 million (Sanchez v. City of Modesto) Court of Appeal held that CVRA was constitutional $1.2 million reduced to just under $200,000 (Rey v. Madera Unified School District) Trial court granted preliminary injunction; invalidated the results of upcoming board elections before the elections occurred $500,000 (Avitia, et al. v. Tulare Local Healthcare District) It is important to note that these amounts do not account for the fees paid to the entity s own attorneys 6

Major CVRA Litigation to Date Jauregui v. City of Palmdale (2013) Plaintiffs argued that the City's at-large method of election had resulted in vote dilution for Latino and African American residents December 2013 trial court determined that at-large method of election violated CVRA. City appealed Settled in 2015 for over $4.5 million plus interest. Reportedly spent in excess of $1.5 million in the entity s own attorneys fees 7

What Constitutes a Violation of CVRA? 8

Racially Polarized Voting A violation of the CVRA is established if it is shown that racially polarized voting has occurred in a district s governing board election, or alternatively state or national elections (as measured by voters who live within the District s boundaries). Racially Polarized Voting means voting where there is a difference in: The choice of candidates (or other electoral issues) preferred by voters in a protected class and The choice of candidates (or other electoral issues) preferred by voters in the rest of the electorate. (Elections Code 14026(e); Elections Code 14028.) 9

What Data is Evaluated to Determine Racially Polarized Voting? Voting history of district related to statewide elections (i.e. state seats or propositions) Voting history of district concerning contested elections for governing board seats Evaluation looking to see if minority candidates of choice have been elected or prevented from being elected due to at-large election system 10

Careful Consideration Needed Carefully consider how to reduce any potential liability under the CVRA Carefully consider potential financial risk 11

The Only Safe Harbor Guarantee from a CVRA claim is A transition to bytrustee area election system and holding elections using the by-trustee area election system. 12

What is a By-Trustee Area Election System? School district is divided into trustee areas A governing board member is elected from each trustee area Board members are elected by only the registered voters in the particular trustee area where the governing board member resides 13

Next Steps 14

First Step for Establishing By- Trustee Area Elections Pass a resolution of governing board declaring: Intent to establish by-trustee area election system Must occur within 45 days of receipt of a Demand Letter to limit pre-litigation costs (Capped at $30,000) 15

Next Step: Two Public Hearings (within 30 days or less) Prior to the preparation of draft trustee voting area plans by Cooperative Strategies, a demographics firm that has assisted over 30 local educational agencies with similar transitions Receive community comments and public testimony concerning: The composition of potential trustee voting areas associated with the District s transition to a by-trustee area election system 16

Next Steps for Establishing By- Trustee Area Elections Draw Draft Trustee Area Plans Use 2010 Census Data, as required by law. One person, one vote standard established by U.S. Supreme Court. Population must be as equal as is practicable people, not citizens. Ed Code section 1002: trustee areas shall be as nearly equal in population A certain amount of deviation may be permitted. Up to 10%. 17

District Demographics 2010 Census Data Population Total Population Age 18 and over Total % Total % Hispanic/Latino 6,663 14,47% 5,023 14.05% White 20,380 44,27% 16,392 45.87% Black/ African American American Indian/ Alaska Native 4,214 9.15% 3,747 10.48% 164 0.36% 151 0.42% Asian 12,170 26.44% 8,993 25.16% Native Hawaiian/ Pacific Islander 277 0.60% 238 0.67% Other 141 0.31% 98 0.27% Two or More Races 2,027 4.40% 1,097 3.07% Total Population 46,036 100% 35,739 100% 18 18

District Demographics Citizen Voting Age Population (Eligible Voters) Population 2011-2015 CVAP Total % Hispanic/Latino 3,771 11.63% White 16,771 51.53% Black/African American American Indian/ Alaska Native 2,716 8.38% 202 0.62% Asian 8,708 26.85% Native Hawaiian/ Pacific Islander 98 0.30% Other N/A 0.00% Two or More Races 222 0.68% Total Population 32,428 100% 19 19

District Demographics Citizen Voting Age Population (Eligible Voters) Population 2011-2015 CVAP Total % Hispanic/Latino 3,771 11.63% White 16,771 51.53% Black/African American American Indian/ Alaska Native 2,716 8.38% 202 0.62% Asian 8,708 26.85% Native Hawaiian/ Pacific Islander 98 0.30% Other N/A 0.00% Two or More Races 222 0.68% Total Population 32,428 100% 20 20

How Might the District be Divided? 21

More Criteria for Consideration Article 21 of the California Constitution: Comply with the U.S. Constitution Achieve population equality as nearly as is practicable Comply with the Federal Voting Rights Act Voting districts shall be geographically contiguous Local communities of interests Geographical compactness Cannot favor or discriminate against an incumbent, political candidate or political party 22

Common Local Considerations Additional considerations/guidance: Dividing school attendance boundaries amongst several trustee areas Distributing school sites amongst trustee areas High growth areas 23

Sharing Draft Voting Area Plans with District Constituents Draft plans should be presented to public for comments before final board consideration Hold public information sessions Place draft plans on district website Translate documents, if necessary Communicate with County during process 24

Procedure for Establishing By- Trustee Area Elections Governing Board Approval of Final Trustee Area Plan Requires 2 public hearings before 3rd public hearing to adopt final plan (within 45 day span) Approval by County Committee on School District Organization at hearing within District Ordinarily, once approved by County Committee, place by-trustee area election proposal and final map on ballot for approval by electorate; HOWEVER 25

Potential Waiver from SBE State Board of Education has power to waive requirement that by-trustee area proposal be placed on ballot (Ed Code 33050.) CDE dialed in on this issue and approving such waivers Waiver will: Expedite implementation of new election system, Avoid uncertainty, and Reduce cost and risk to school district since only safe harbor under CVRA is implementation of bytrustee area election system. 26

General Waiver Request Board must: Consult bargaining units and provide position of bargaining units Consult advisory committees or school site councils and list any objections Pass Resolution approving submittal of General Waiver Request at a duly noticed hearing 27

Final Steps in Completing Transition File new Voting Area Plan with County Registrar of Voters Hold Governing Board elections under new by-trustee area election system 28

Estimated Timelines (July - August 2017) Initiate Transition to By-Trustee Areas** Hold two public hearings to solicit community feedback in advance of the preparation of draft map options by demographer **New law prevents prospective plaintiff from filing a lawsuit for 90 days after the District initiates it s transition hence, the rapid timeline. 29

Estimated Timelines (August September 2017) Demographer obtains necessary information regarding district demographics Demographer prepares initial draft voting area maps for review 30

Estimated Timelines (September October 2017) Share Draft Trustee Voting Area Maps with Public Hold 2-5 community meetings Hold 2 public hearings Seeking public input and feedback Consult with District Bargaining Units, School Site Committees/Councils concerning General Waiver Request to Cal. Dept. of Education to waive election requirement 31

Estimated Timelines (October 2017) Public Hearing to approve submission of General Waiver Request Submit General Waiver Request Approve Final Trustee Voting Area Map at Public Hearing Submit to County Committee on School District Organizations 32

Estimated Timelines (October/November 2017) Receive approval of General Waiver Request Public Hearing by County Committee on School District Organization Submit Final/Approved Trustee Voting Area Map to County Registrar of Voters Hold Elections under By-Trustee Area election system on November 6, 2018 33

Additional Items to Keep in Mind Once transition made to by-trustee area election system, then following each federal census: Governing board must approve adjustment of trustee area boundaries to make sure each the population in each trustee area is as nearly as equal as practical, among other things. (Education Code section 5019.5(a).) 34

Final Thoughts Does not change overall District boundaries Does not change school attendance boundaries Does not change how the District is governed Still one district with common goals and challenges!!! 35

Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances. 36