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HomeMy WebLinkAbout8.1 Transition to District-Based Councilmember ElectionsSTAFF REPORT CITY COUNCIL Page 1 of 6 Agenda Item 8.1 DATE:February 15, 2022 TO:Honorable Mayor and City Councilmembers FROM:Linda Smith, City Manager SUBJECT:Transition to District-Based Councilmember Elections Prepared by: Jordyn Bishop, Assistant City Attorney EXECUTIVE SUMMARY: Earlier this year, the City received a notification threatening litigation under the California Voting Rights Act if the City did not convert from at-large elections for electing members of the City Council to district-based elections. The City Council will consider adopting a resolution of intent to transition from at-large elections to a district-based councilmember election system. STAFF RECOMMENDATION: Adopt the Resolution Declaring Its Intention to Transition From an At-Large Election System to a District-Based Election System. FINANCIAL IMPACT: If the City Council concurs with Staff’s recommendation, there will be significant staff time associated with the transition to district-based elections and to administer the process moving forward, including the need for at least five public hearings.The City will also incur costs for a demographer to assist with drawing district maps and soliciting public input in order to draw district maps. These costs are currently estimated at approximately $50,000.Additionally, the City may be required to reimburse a prospective plaintiff for its documented attorney’s fees and costs, up to $30,000 (plus an annual adjustment for inflation). If City Council chooses to maintain at-large elections and defend a potential lawsuit, the costs and attorneys’ fees would likely approach several million dollars. 459 Page 2 of 6 DESCRIPTION: Background The City of Dublin utilizes an at-large election system for electing its Mayor and Councilmembers. An at-large election system means that all electors in the City elect each of the four (4) Councilmembers and Mayor. A district-based election system would be one in which the City would be physically divided into separate districts, each represented by one Councilmember who resides in and is chosen by the electors residing in that same district. Under such a system, the Mayor would continue to be elected by the electorate of the entire City. On January 4, 2022, the City received a letter, included as Attachment 1, from Kevin Shenkman of the law firm of Shenkman & Hughes, on behalf of Southwest Voter Registration Education Project, alleging a violation of the California Voting Rights Act (CVRA) and demanding that the City move away from an at-large election system. The letter claims there is “racially polarized voting” in Dublin and threatens litigation if the City declines to voluntarily convert to district-based elections. “Racially polarized voting” means voting in which there is a difference in the choice of candidates or other electoral choices that are preferred by voters of a protected class, than in the choice of candidates and electoral choices that are preferred by voters in the rest of the electorate. Specifically, the letter asserts that the City’s current at-large election system dilutes the ability of Indian American voters to elect candidates of their choice or otherwise influence the outcome of City Council elections, and that, as a result, Dublin’s at-large election system violates the CVRA. After discussing the claim in closed session conferences with legal counsel, the City Council directed staff to move forward with drafting the attached Resolution declaring intent to transition from at-large to district-based elections, for consideration at the February 15, 2022 meeting. The California Voting Rights Act The CVRA prohibits at-large election systems from impairing the ability of a protected class (members of a race, color, or language minority group) to elect candidates of its choice or its ability to influence the outcome of an election. Modeled after the Federal Voting Rights Act (FVRA) (42 U.S.C. § 1973), the CVRA was specifically enacted in 2002 to make it easier for plaintiffs to prevail in lawsuits against public entities that elected their members to its governing body through “at-large” elections. To prove a violation of the CVRA, plaintiffs need only show the existence of racially polarized voting. (Elec. Code §§ 14026(e), 14028(a).) Other factors are also relevant in determining liability. Plaintiffs are not required to show that members of a protected class live in a geographically compact area or prove intent to discriminate on the part of voters or officials. If a CVRA violation is found, the court has authority to impose district-based elections and determine district boundaries with input from the plaintiff’s attorney. (Elec. Code § 14029). As a result, cities and other agencies throughout the State have increasingly been facing legal challenges to their “at-large” systems of electing councilmembers or board members. Almost all have settled claims out of court by agreeing to voluntarily shift to district-based elections. Locally, the City of Pleasanton, the City of Livermore, the Dublin Unified School District, the Dublin San Ramon Services District, and the Pleasanton Unified School District have all transitioned, or are in the midst of 460 Page 3 of 6 transitioning to a district-based election system. Significant financial costs are associated with litigating a challenge under the CVRA. The CVRA grants a prevailing plaintiff the right to recover reasonable attorneysʼ 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. Conversely, a city prevailing against a CVRA challenge has no right to recover either attorneysʼ fees or costs. Also, the city would remain vulnerable to subsequent litigation brought under the CVRA by different plaintiffs. In recent cases brought under the CVRA, awards to prevailing plaintiffs have approached $5 million, which does not capture other significant costs incurred during the course of litigation, such as citiesʼ own attorneysʼfees and staff time. Existing legislation (discussed in the next section) provides a “safe harbor” mechanism for an agency to consider its options after receiving a CVRA litigation threat and take steps to convert to district-based elections without fear of paying substantial attorneysʼ fees to the plaintiff. Safe Harbor under Assembly Bill (AB) 350 Effective January 1, 2017, AB 350 (2016) amended Elections Code section 10010 and attempted to provide a “safe harbor” for agencies facing CVRA litigation if they take immediate steps to transition to district-based elections. If a city receives a demand letter from a “prospective plaintiff,” the city is given 45 days of protection from litigation to assess its situation and determine a course of action. If within that 45 days, a city adopts a resolution declaring intent to transition from at-large to district-based elections, outlining specific steps to be undertaken to facilitate the transition, and estimating a timeframe for action, then a potential plaintiff is prohibited from filing a CVRA action for a 90-day period from the resolutionʼs passage. The city and the prospective plaintiff may enter into a written agreement to extend that 90-day time period for up to an additional 90 days in order to provide additional time to conduct public outreach, encourage public participation, and receive public input. The extension must be in writing and must require the district boundaries be established at least six months before the next regular election. Within 10 days of signing the extension agreement, the city must post a tentative public outreach/public hearing schedule on its website. Thus, the “safe harbor” legislation provides a minimum of 135 days, and up to 225 days upon mutual agreement, for a city to assess and implement a transition to a district- based system before a lawsuit may be filed. Under AB 350, a city’s liability is capped at $30,000 (plus an annual adjustment for inflation) if it follows this safe harbor process after receiving a threat, and the plaintiff must show financial documentation that these costs were actually incurred. Regardless of whether the city is transitioning on its own initiative, or under “safe harbor” in response to a demand letter, the Elections Code sets out a number of steps a city must take in the effort to assess and transition to a district-based election system, steps which are laid out in further detail below. Transition from At-Large to District-Based Elections Under Elections Code section 10010, a city is required to hold at least five public hearings during the transition process. The first two public hearings will give the community an opportunity to provide input on the composition of the districts before any maps are drawn. Subsequently, draft district maps 461 Page 4 of 6 will be drawn and two additional public hearings will be held for the public to provide input regarding the content of the draft maps and the proposed sequence of elections. The maps must be published at least seven days before the public hearings. The fifth, and final, public hearing will be for the City Council to consider an ordinance that establishes the district-based elections and approves the maps. Most communities have taken a phased approach to implementing district-based elections. If district elections are initiated by the city, the City Council may determine the potential sequence of the elections. (Elec. Code § 10010(a)(2)). If a city is compelled to adopt district elections as a result of litigation, district boundaries will be drawn by the presiding court with input from the plaintiff. In establishing a district-based election system, no councilmember’s term may be cut short (Gov. Code § 34873; Elec. Code § 21606(a)), but when their term ends, an incumbent can only run from the new district in which he or she resides. The term of office for each councilmember remains four years. (Gov. Code § 34879). In determining the final sequence of the district elections, the City Council must give special consideration to the purposes of the CVRA. This may require that the election in a district with a majority of voters of a protected class be scheduled in the presidential election year when voter turnout is typically much higher than in the gubernatorial election year. The district boundary maps must meet certain criteria. In particular, the districts must be roughly equal in population, excluding incarcerated persons. (Elec. Code, § 21601, subd. (a).) The districts are further subject to the following criteria in order of priority: geographical contiguity minimize the division of any local neighborhood or local community of interest easily identified and understood by residents geographical compactness (Elec. Code, § 21601, subd. (c).) Process and Timeline The proposed Resolution declares the City Council’s intent to consider adoption of an ordinance establishing district-based elections beginning with the November 2024 regular municipal election. The specific steps to be undertaken to facilitate the transition and the estimated timeframe for doing so are set forth in Exhibit A to the Resolution (Attachment 1), and presented below: 462 Page 5 of 6 Date Event / Action February - March 2022 City conducts public outreach to explain the districting process and to encourage public participation April 2022 City holds first and second public hearings (over a period of no more than 30 days) to obtain input regarding the composition of the districts May - June 2022 City prepares and posts draft maps and potential sequence of councilmember elections June-July 2022 City holds third and fourth public hearings (over a period of no more than 45 days) to obtain public input regarding content of the draft maps and potential sequence of councilmember elections August-September 2022 Introduction and adoption of ordinance establishing district-based elections and a final map The candidate nomination period for the November 8, 2022 regular municipal election opens on Monday, July 18, 2022. The County Registrar of Voters has asked for final district maps no later than six months before the election date, which is approximately May 8, 2022. Ordinances take effect 30 days from adoption, meaning the City Council would need to adopt a district-based ordinance and a final map before approximately April 8, 2022 to meet the County’s requested deadline for incorporating the City’s new district map in time for the 2022 election. If the City Council adopts the proposed Resolution on February 15, 2022, that would leave 52 days to conduct the full districting process, which is not enough time to complete the transition in time for the November 2022 elections. That timeline would provide insufficient time to meaningfully engage in the necessary public process to adopt and implement the maps. As stated above, a city is required to hold at least five public hearings during the transition process. The first and second public hearings must be held over a period of no more than 30 days, and the third and fourth public hearings must be held over a period of no more than 45 days. A final, fifth public hearing is required for adoption of the ordinance and map, and all draft maps must also be published at least seven days before the public hearings. It is the City’s desire that the to-be-adopted maps reflect, to the greatest extent possible, meaningful public participation. A 52-day process would severely limit the City’s ability to conduct outreach to the public to explain the districting process and to encourage public participation. The City’s recent experience demonstrates that extra effort is required to engage the public during the COVID-19 pandemic. Additionally, the City’s discussions with demographic consultants that will be used to assist with conducting outreach and hearings and prepare maps indicate that they will continue to be busy during the next several months, as they complete decennial census redistricting. Their unavailability is likely to both delay the process and limit the various map options that the community might desire to consider. In addition, after the maps are completed, the residents of the districts, their various communities of interest, and potential candidates would have a short period of time to identify, organize, and develop potential candidacies, potentially disrupting the existing plans of potential candidates and campaign organizations. 463 Page 6 of 6 As a result, staff recommends that the City Council adopt the proposed Resolution declaring intent to transition to district-based elections beginning with the 2024 election, outlining specific steps to be undertaken to facilitate this transition, and establishing the estimated timeframe for doing so. It is also recommended that the City Council provide the authority to the City Manager to enter into agreements necessary to initiate and facilitate this process when those contracts exceed $45,000. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City Council Agenda was posted. ATTACHMENTS: 1) Resolution Declaring Intention to Transition from an At-Large Election System to a District-Based Election System 2) Demand Letter from Shenkman & Hughes 464 Attachment 1 Reso. No. XX-22, Item X.X, Adopted XX/XX/22 Page 1 of 4 RESOLUTION NO. XX – 22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN DECLARING ITS INTENTION TO TRANSITION FROM AN AT-LARGE ELECTION SYSTEM TO A DISTRICT-BASED ELECTION SYSTEM WHEREAS,members of the City Council of the City of Dublin (“City”) are currently elected in “at-large” elections, in which each City Councilmember is elected by the registered voters of the entire City; and WHEREAS,California Government Code Section 34886 permits the legislative body of a city to adopt an ordinance to change its method of election from an “at-large” system to a “district- based” system in which each councilmember is elected only by the voters in the district in which the candidate resides; and WHEREAS, the City received a letter on January 4, 2022, from Kevin Shenkman of the law firm of Shenkman & Hughes, on behalf of Southwest Voter Registration Education Project and its unidentified members residing within Dublin, alleging that the City’s at-large councilmember electoral system violates the California Voting Rights Act (“CVRA”) and threatening litigation if the City declines to voluntarily change to a district-based election system for electing councilmembers; and WHEREAS, under Elections Code section 14028(a), a violation of the CVRA is established if it is shown that racially polarized voting occurs in elections. “Racially polarized voting” means voting in which there is a difference 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 (Elections Code Section 14026, subd. (e)); and WHEREAS,the City denies that its at-large councilmember electoral system violates the CVRA or any other provision of law, and asserts the City’s election system is legal in all respects and further denies any wrongdoing in connection with the manner in which it has conducted its City Council elections; and WHEREAS, under Elections Code section 10010, a prospective plaintiff can file a lawsuit if the City does not adopt a resolution of intent to transition to district-based elections within 45 days of receipt of a letter sent by certified mail asserting that the City’s method of conducting elections may violate the CVRA; and WHEREAS, Elections Code section 10010 provides a method by which a city can expeditiously change from an at-large elections system to a district-based election system and avoid the high cost of litigation; and WHEREAS,under Elections Code section 10010, if the City adopts a resolution outlining its intention to transition from at-large to district-based elections, including specific steps it will undertake to facilitate this transition and an estimated timeframe for doing so, then a prospective plaintiff may not bring a CVRA lawsuit within 90 days after that resolution’s passage and attorneys’ fees would be capped at a maximum of $30,000; and 465 Attachment 1 Reso. No. XX-22, Item X.X, Adopted XX/XX/22 Page 2 of 4 WHEREAS, prior to the City Council’s consideration of an ordinance to establish district boundaries for a district-based electoral system, Elections Code section 10010 requires all of the following: 1. Before drawing a draft map or maps of the proposed boundaries of the districts, the City shall hold at least two public hearings over a period of no more than 30 days, at which the public is invited to provide input regarding the composition of the districts. Before these hearings, the City may conduct outreach to the public, including to non-English-speaking communities, to explain the districting process and to encourage public participation; 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. The City shall also hold at least two additional hearings over a period of no more than 45 days, at which the public is 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 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 days before being adopted; and WHEREAS, the City intends to retain an experienced demographer to assist the City to develop a proposal for a district-based electoral system. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin declares its intention to consider adoption of an ordinance to transition to a district-based election system beginning with the November 2024 regular municipal election, as authorized by Government Code section 34886. BE IT FURTHER RESOLVED that City Council authorizes and directs staff to work with a 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 voting districts in a manner consistent with the intent and purpose of the CVRA and all other applicable laws. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to enter into an agreement with a demographer, and other appropriate consultants, in excess of $45,000 to carry out the intent of this Resolution. BE IT FURTHER RESOLVED that City Council directs staff to make every effort, prior to the commencement of the hearings required by law, to conduct outreach to the public, including to non-English speaking communities, to explain the districting process and to encourage public participation in the process for determining the composition of the districts and the sequence of district elections. BE IT FURTHER RESOLVED that the City Council hereby declares its intention to take the specific steps, and approves the estimated timeline for taking such steps, as set forth in Exhibit A, attached hereto and made a part hereof. The City Manager may adjust such timeline if she deems it necessary, provided that any such adjustments may not prevent adoption of an ordinance in sufficient time for district-based elections to be used at the November 2024 regular municipal election. 466 Attachment 1 Reso. No. XX-22, Item X.X, Adopted XX/XX/22 Page 3 of 4 BE IT FURTHER RESOLVED that if any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Resolution, or any part hereof, is held invalid or unconstitutional, such decision shall not affect the validity of the remaining sections or portions of this Resolution. The City Council hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase in this Resolution irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases may be declared invalid or unconstitutional. PASSED, APPROVED AND ADOPTED this 15th day of February 2022, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk 5056821.5 467 Attachment 1 Reso. No. XX-22, Item X.X, Adopted XX/XX/22 Page 4 of 4 Exhibit A Estimated Timeframe for Transitioning to District-Based Elections Date Event / Action January 4, 2022 City received letter asserting violations of CVRA February 15, 2022 City adopts resolution of intent to transition to district- based elections February - March 2022 City conducts public outreach to explain the districting process and to encourage public participation April 2022 City holds first and second public hearings (over a period of no more than 30 days) to obtain input regarding the composition of the districts May - June 2022 City prepares and posts draft maps and potential sequence of councilmember elections June - July 2022 City holds third and fourth public hearings (over a period of no more than 45 days) to obtain public input regarding content of the draft maps and potential sequence of councilmember elections August-September 2022 Introduction and adoption of ordinance establishing district-based elections and a final map 468 Attachment 2 469 470 471 472 Item 8.1 Transition to District-Based Councilmember Elections February 15, 2022 473 Background •January 4, 2022 –City received a letter from Shenkman & Hughes, on behalf of Southwest Voter Registration Education Project, alleging a violation of the CVRA •California Voting Rights Act (CVRA) –Prohibits at-large elections from impairing the ability of a protected class (members of a race, color, or language minority group) to elect candidates of its choice or its ability to influence the outcome of an election 474 At-Large vs. District Elections •At-Large Elections (current) –All voters in Dublin elect each of the four (4) Councilmembers and Mayor •District-Based Elections –Create maps to physically divide City into separate districts of equal population –Each district represented by one Councilmember who resides in and is chosen by voters residing in that same district 475 Legal and Financial Impacts •CVRA lawsuits –Plaintiff has low bar to prevail in a CVRA lawsuit –Even if City prevails, another plaintiff may allege CVRA violation later •Costs to litigate –Must pay plaintiff’s legal fees if City is unsuccessful –Legal fees in past cases have approached $5 million –Court orders district elections & draws maps 476 CVRA Safe Harbor •Method to expeditiously change to a district-based election system and avoid the high cost of litigation •Within 45 days of CVRA demand letter: –Adopt a resolution of intent to transition to district- based elections •Prospective plaintiff may not bring a CVRA lawsuit within 90 days after resolution’s passage and attorneys’ fees capped at $30,000 (plus inflation) 477 Transition Process •Minimum of Five Public Hearings Required –2 public hearings for input on the composition of the districts before any maps are drawn –2 public hearings on content of the draft maps and the proposed sequence of elections –Introduce and adopt ordinance •2022 Election Dates –City is committed to engaging in an open and deliberate public process to educate and seek input from the City’s various constituencies and communities of interest –Insufficient time to meaningfully engage in the public process to adopt and implement the maps for use in 2022 election 478 Estimated Timeframe Date Event / Action January 4, 2022 City received letter asserting violations of CVRA February 15, 2022 City adopts resolution of intent to transition to district-based elections February -March 2022 City conducts public outreach to explain the districting process and to encourage public participation April 2022 City holds 1st and 2nd public hearings to obtain input regarding the composition of the districts May -June 2022 City prepares and posts draft maps and potential sequence of councilmember elections June -July 2022 City holds 3rd and 4th public hearings to obtain public input regarding content of the draft maps and potential sequence of councilmember elections August -September 2022 Introduction and adoption of ordinance establishing district-based elections and a final map 479 Staff Recommendation •Adopt a Resolution of Intent to transition to District-Based Elections outlining the specific steps to be undertaken to facilitate this transition, and establishing the estimated timeframe for doing so •Authorize the City Manager to enter into agreements necessary to initiate and facilitate this process when those contracts exceed $45,000 480