After a one-week court trial concluding July 24, 2018, the City of Santa Clara was found to have violated the California Voting Rights Act (“CVRA”) by racially discriminating, through the City’s Charter, against Asian Americans.
Read that back again. If you don’t grasp it, here’s some context.
Harken back to 1963, George Wallace standing in front of door at the University of Alabama, barring Vivian Malone and James Hood, two Black students to be, from registering for classes.
1944, Korematsu v. United States. Internment of Japanese Americans is fine.
1882, Chinese Exclusion Act. Prohibits immigration of Chinese laborers.
Most apt? Perhaps the March for Montgomery to Selma in 1965. Voting rights. No right to Americans is more basic nor held so dear.
Now, in 2020, City of Santa Clara. In 70 years, not one Asian of American origin, nor other minority, has ever been elected to office in Santa Clara where 39.1% of the City is Asian American. Reportedly, 60% of Santa Clara is minority.
No one disputes the facts.
Voting rights are a big deal.
This is what happened and is happening in a 130,000-person city in the most progressive area in the United States.
Racism is easy to distill. You have your rattle snakes (think, white people carrying Nazi flags, wearing white hoods and the like). You can hear them many feet away and have the chance to get out of the way. Then, there are the cobras. They are silent and deadly. Up they pop, spit their venom and you are blind or dead in an instant. That’s the more pervasive racism. That’s what’s at work in Santa Clara.
Here’s how racism manifests today in the City of Santa Clara.
I. A Stupid Decision
About June 2, 2011 the Santa Clara City Council received a letter from an attorney. It informed members that the City was in violation of the California Voting Rights Act (“CVRA”). In terms we can all understand, the CVRA prohibits At Large voting where, as in the City of Santa Clara, minorities make up a substantial part of the city’s residents.
As an attorney, what you do is, first, check out the claim. Sure enough, any attorney would have determined the City to have a 39.1% Asian population and perhaps 60% minority population where no minority had ever been elected to office in 70 years, where the law is against your client.
Under such facts, court decisions were unanimous. City loses.
We do not have access to what happens in a city’s closed door meetings regarding possible litigation. However, one of two things must have happened here. First, the City Attorney advised City Council that the claim had no merit; Or, he advised that it did, and the Council told him to defend the claim. That’s how this went down.
Safe to say, and obvious, whoever made the decision to fight on was wrong. Santa Clara residents have and will pay dearly for that mistake of judgment.
II. It Gets Worse for Residents
So, foregoing the “Safe Harbor” provisions where the City pays nothing if they conform their election scheme to law after a demand letter as the attorney sent with the facts are what they are in Santa Clara, the City of Santa Clara goes sideways. The City Council decides, in accord or against the advice of the City Attorney, to fight a case where the odds of winning are unanimously to the contrary.
The Santa Clara City Council making this decision are all white.
On November 30, 2017 Santa Clara minority residents file suit against the City. There’s now another bite at the apple to reassess and get it right for all residents. Notwithstanding the facts and law, whoever makes decisions in Santa Clara elect to dig their hole deeper. Why?
III. The Judgment Is No Surprise. Santa Clara Loses.
Look. One can brush this off as, well, you know. Cities even in the Bay Area can be parochial. How we’ve always done it, I grew up there, played baseball over at some or other park. Good old days blah, blah blah.
The court found that the City of Santa Clara racially discriminated against minorities. The court ordered Santa Cara to establish six voting districts. To date, the court has slapped about $4M in attorney’s fees and costs against residents which any reasonable resident would see as a waste of their money. More to come on appeal.
IV. Bad Lawyering. Really Bad & Lies.
The Court’s Amended Judgment, July 24, 2019, prohibits the City of Santa Clara from continuing elective offices (mayor and City Police Chief excluded) from being held other than by six districts. Full stop. End of story. Like, forever.
Somewhere, the Council and City Attorney signed on to the idea that (1) the Court’s order only goes to 2020 and, (2) after that date, the City reverts to the already found illegal, racially discriminatory practice of At Large elections. In fact, this is what the City published in a voter’s guide for Measure C (discussed below) and a recent press release after it was (thankfully) defeated.
The voters guide and City’s press release are demonstrably false by law. The City of Santa Clara even so admitted!
Here’s the City’s press release dated immediately after issuance of the amended judgment:
“The [Court’s] decision, which orders entry of judgment against the City, effectively amends the City’s Charter by ordering the City to implement by-district elections for it six city council members.”
Yet, out of nowhere, the City Attorney later publishes an “impartial” ballot statement and, as recently as last week, press release, asserting that if Measure C is defeated the City will revert to the At Large scheme already found illegal by the court and banned forever. Unsurprisingly, no support for the City Attorney’s crazy conclusion is found anywhere in the City’s admission above, Court judgment or at law, anywhere
You can’t make this up. But it gets worse.
V. A “Diverse” Charter Review Committee
In the wake of the City of Santa Clara being found racist in its elections, the Santa Clara City Council doubles down to prove it.
Notwithstanding the Court’s finding and the City press release admitting that At large voting has been prohibited whatever it City’s Charter purports, the City takes the unusual position, effectively in substance, “Since the Court didn’t order us to amend our charter to make racial discrimination illegal, we are good to go being racially discriminatory at 2020 and beyond.”
Ahh, yes. The good old days. No doubt a bunch of old white folk turning out to support that!
And indeed, they did.
At a July 14, 2019 City Council Meeting, 17 members applied to be appointed to a six member Charter Review Commission to amend the City Charter to respond to the Court’s order imposing six districts. I suspect the video of the hearing will be Exhibit A in any subsequent court proceeding. “No judge going to tell us what to do,” It’s our city,” “I was raised here…” etc. They were cheered on by the City Council, save but a couple members who knew better.
The Santa Clara City Council went on to appoint six long time white residents to the Charter Review Committee and but one minority, an Asian.
In a subsequent Op-ed, Santa Clara Mayor Lisa Gillmor and Council Member Teresa O’Neill, declared the Committee to be “Diverse.”
Unsurprisingly, the Committee voted 5-2 (all whites in the affirmative), in late September 2019, to knowingly bypass the Court’s Judgment regardless of expense, let alone shame, to Santa Clara residents. They voted to make it more difficult for minorities to be elected to office by selecting a three-district scheme over the Court ordered six.
Yep. The outcome was rigged. The Santa Clara City Council, all whites in the affirmative, then go on to enact a ballot measure (Measure C) to prove a “point,” over law, fact or court judgment, 4-3.
VI. The “Outside Agitators”
So, The NAACP, Asian Law Alliance and La Raza unite to call out the racism that is Measure C. Even most Santa Clara residents are of the same opinion. More than 65% of City residents in a City-conducted poll find six voting districts preferable to three. The reasons are self-evident: Six districts over three decrease the money necessary to run for elective office, thereby expanding the number of candidates, thereby giving minorities a greater chance of participating and being elected while decreasing the influence of special interest money.
Against the obvious benefits, supporters focus on “The Other.” Got it. “Let us alone. You don’t live here, we know what’s best, how it’s always been, just stay in your place.” 1963 redux.
VII. Measure C Defeated and They’re Still Fighting.
In the past week, the Santa Clara City Attorney issued a press release declaring that since Measure C was defeated, the City must revert to racially discriminatory At Large elections — ugh. That’s a lie, see above; the City of Palmdale tried the same scam only to be threatened to be found in contempt of court — perhaps intended to discourage minority Santa Clara residents from their deserved Court victory.
Yet, the City pursues appeal costing millions more to residents to what end? Residents prefer six districts!
No one is proud to live in a city found to have been racist and tagged from their money for $4 million to boot. Yet, residents in Santa Clara own that moniker and expense thanks to the miscues of their City Attorney/City Council. That has cost residents dearly. The appeal is weak and should be dropped immediately. At a minimum, residents should demand a second legal opinion for the disaster and hold their representatives accountable.