When it comes to the California Voting Rights Act (CVRA), doing the right thing is also the fiscally prudent thing to do.
The Sunnyvale City Council had a charter change on the March 2020 ballot after receiving a warning in 2018 that its at-large by-seat City Council election system violated voting rights laws. Sunnyvale will hold its first by-district election in November.
Santa Clara chose to take no action when it first received the same warning in 2011. The City seems to continue to resist change, even after losing a CVRA lawsuit in 2018 and single-member districts were imposed on the City. The City is now appealing the lawsuit it lost even though only one city has ever won a CVRA lawsuit.
Sunnyvale’s legal cost was about $30,000 because it avoided litigation.
Santa Clara’s embrace of courtroom battles has already cost the City almost $1 million and has a high risk of ultimately costing the City more than $4 million.
Inaction Leads to the Courtroom
For almost a decade Santa Clara has rigidly pursued a policy of defending its at-large City Council elections and its all-white Council, including multiple attempts to evade the 2018 court order via multi-member districts* and an ill-advised appeal.
After civil rights attorney Robert Rubin advised Santa Clara in 2011 that its election system violated Asian American voting rights, the Council appointed a review committee and then tabled its recommendations.
The Council appointed another committee to look at the election system in 2015, when then City Attorney Ren Nosky persuaded former Mayor Jamie Matthews that the City risked a CVRA lawsuit.
After Matthews resigned in early 2016 and Lisa Gillmor was appointed mayor in his stead, the committee tabled the election question — arguing that it was “too much to accomplish before the election” — and proposed a series of charter changes that had nothing to do with elections.
Ignoring the CVRA lawsuit threat didn’t make it go away. In 2017, Santa Clara was hit with a CVRA lawsuit.
The Council’s response was to mount a courtroom defense of a system that city demographics made increasingly indefensible. They went to court with an attorney, Steve Churchwell, who had no CVRA litigation experience. What Churchwell did have, however, was a business partnership with Related lobbyist Jude Barry, generally believed to be Mayor Gillmor’s political advisor.
And they reseated the same committee that dodged its job the last time.
The committee spent much time discussing Santa Clara exceptionalism and little discussing financial risk. They proposed cutting the City in half and electing three councilmembers in each half, using ranked choice voting and a weighted vote counting method virtually unused in the U.S. (Measure A). Only one committee member objected to the proposal.
The Council majority heartily endorsed the idea. If implemented, the plaintiffs assured the City, the City would face a second voting rights lawsuit.* Measure A lost, 52 percent to 48 percent.
In June 2018, Judge Thomas Kuhnle ruled against the City, noting Santa Clara’s repeated failure to act in the face of multiple warnings. The plaintiffs were awarded a little over $3 million in legal fees.
Reluctant Compliance and Continued Resistance
Kuhnle directed the City to implement single member districts in time for the 2018 election.
Santa Clara’s initial response was defiance, drawing a threat from the judge to block 2018 election certification. [cvra remedy judge comment 6-26-2018.pdf]. Gillmor and City Attorney Brian Doyle complained the judge hadn’t allowed enough time to assess public opinion.
But the City Council held by-district elections in 2018, appealing the judgment at the same time.
The Council appointed a fourth committee — with only one minority out of seven members — and conducted a survey of voter sentiment. The survey showed that 66 percent of those surveyed preferred the court-mandated six districts.
Survey results were ignored — Councilmember Debi Davis dismissed the survey saying “data can be manipulated” while Councilmember Kathy Watanabe called into question the validity of the numbers. Only 23 percent of those surveyed liked three multi-seat districts. Yet that was what five of the seven Council-appointed Charter Review committee members approved.
The Council approved putting the new at-large proposal on the March 2020 ballot, called Measure C, with text that its opponents called “deceptive.” The measure proposed the current six single member districts for the 2020 election, with a change to the three at-large districts in 2022.
Two members of the larger committee opposed the three-by-two idea but it was a hit with the Council majority: Gillmor, Councilmembers Teresa O’Neill, Davis and Watanabe. City Attorney Doyle attacked the measure’s opponents on social media, calling them “naïve” and implying they were being hoodwinked by the 49ers.
Measure C lost by more than Measure A — 61 percent to 39 percent.
No hearing is currently scheduled on the appeal. Mayor Gillmor, from comments she has made at meetings, appears to believe that the City will return to at-large by-seat elections in 2022 for two reasons.
First, because Measures A and C failed, the City charter hasn’t been changed to elect the Council in single-member districts — despite the fact that voters have never been given the choice of single-member districts. Second, the judgment only refers to the 2020 and 2022 election.
The City Attorney hasn’t discouraged this view. Doyle wrote in the Measure C ballot analysis, “A ‘No’ vote would leave in place the existing City Charter provisions, requiring that all City Council Members be elected at-large by seat number.”
Doyle isn’t commenting further on this, saying in an email, “Until we know the Court of Appeal’s decision, I will not be in a position to comment on what the City would do with regard to the election of Council members.”
A $4 Million Bill
So far this odyssey has cost Santa Clara almost $1 million — an average of $56,000 a month — for attorney Churchwell. Plus the City owes about $3 million awarded for the plaintiffs’ attorneys.
This doesn’t include about $200,000 wasted on ballot measures as well as countless hours of wasted staff energy and public time — all on an issue that could have been resolved eight years ago.
The City still has a way to stop the spending: changing the charter by ordinance, which the CVRA permits, and has been proposed by Councilmembers Raj Chahal and Karen Hardy.
The Council majority refuses to consider this, relying on City Attorney Doyle’s advice that this provision doesn’t apply to charter cities. (Doyle also has stated his opinion that the CVRA doesn’t apply to charter cities at all, despite a California Supreme Court ruling was that it did).
In fact, several charter cities — among them Palm Springs, Roseville, Napa and Torrance — have used this mechanism to change to by-district elections without challenge.
The bottom line is that defending a voting rights complaint will cost Santa Clara at least $3.97 million more than it cost Sunnyvale to avoid one. And with the appeal still pending, the legal meter is still running.
Litigation’s Opportunity Cost
So far Santa Clara has paid Churchwell $850,000 for his legal services. This money could have made electric and plumbing permits — $535,615 and $321,368, respectively — free for a year, tripled the Triton Museum’s support or bought 40 percent more library books.
The $3.97 million that Santa Clara would have saved by avoiding litigation could pay for currently unfunded infrastructure projects such as: Central Park Arbor Center improvements ($2.9 million); Triton Museum and Morse Mansion maintenance ($3.3 million); or rehabilitation of Mary Gomez, Maywood and Rotary Park’s playgrounds ($3.7 million).
*The CVRA only applies to at-large election systems but considers multi-member to be ‘at-large.’