Only days before Election Day and in Sunnyvale we still don’t know whether we will have a legal City Council election. The City still has not acknowledged it received a notice advising that Sunnyvale’s system for electing its Council is illegal under the California Voting Rights Act (“CVRA”).
That notice, sent on October 2 by attorney Laura Ho, one of the lawyers who just defeated the City of Santa Clara in the trial on its voting system, claims Sunnyvale violates the CVRA because its at-large voting system results in “racially polarized voting which has diluted the voting power of Asian American voters.”
“At-large voting” means the entire city votes on each candidate for the Council. District elections are an alternative. The city would be divided into districts and we would only be able to vote for candidates in our district.
Both U.S. and California election laws disfavor at-large elections because such elections can dilute the votes of minorities. (c.f., Kaku v. City of Santa Clara, Santa Clara County Superior Court.)
Dilution of the votes of a minority (referred to by the CVRA as a “protected class”) occurs when elections result in racially polarized voting that prevents a minority from electing candidates or impairs its ability to influence elections. The CVRA makes illegal any at-large voting system that results in racially polarized voting.
The CVRA places a light burden of proof on a plaintiff to show that a voting system is illegal.
The plaintiff must show only that racially polarized voting has occurred. Racially-polarized voting is “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 the electoral choices that are preferred by voters in the rest of the electorate.” Elec. Code § 14026 (e). The CVRA makes Asians a protected class.
Minorities sued Palmdale over its at-large voting system. Palmdale had a Latino population of 54 percent and an African-American population of 14 percent. From 2000 onward, no African-American and only one Latino was elected to the Palmdale city council until the trial court ruled against Palmdale in August 2013.
Other evidence of racially polarized voting included a statistical analysis done by experts for the parties that “established a clear history of a difference between the choice of candidates preferred by the protected class and the choice of the non- protected class.” (c.f., Final Statement of Decision — Los Angeles County Superior Court, Jauregui v. City of Palmdale.) The Superior Court declared the Palmdale voting system illegal, ruled the city council election Palmdale had just held was also illegal and blocked the results from being certified, and ordered Palmdale to institute a district voting system.
Asian-Americans sued the City of Santa Clara because of that city’s at-large voting system.
The plaintiffs claimed a voting majority of non-Hispanic whites used Santa Clara’s system to impair the ability of Asians to elect candidates to the city council. The Santa Clara County Superior Court agreed and in July ordered Santa Clara to switch to district elections in November.
Santa Clara is like Sunnyvale in that it has no “majority” class. The combined Santa Clara population of non-Hispanic whites and blacks makes up only 46 percent of Santa Clara’s total population. Asians make up 40 percent of the total population. However, the percentage of actual voters is quite different 64 percent are non-Hispanic whites and blacks versus 21 percent Asian.
The claimant against Sunnyvale may assert that though whites do not make up a majority of Sunnyvale’s population, the majority of actual voters are white and the white voting majority uses Sunnyvale’s at-large system to impair the ability of Sunnyvale’s Asians to elect candidates or influence elections.
The claimant may even assert that a voting majority of whites and Hispanics has the same impact. The claimant may argue that if 30 percent of voters are Asians, on a 7-seat council there should be on average two seats held by Asians. Maybe three one time and only one another time, but certainly more than Sunnyvale’s two in 20 years. The claimant will probably assert that our upcoming November 6 election is illegal.
If the Sunnyvale claimant should win a lawsuit against Sunnyvale over its at-large voting system (no claimant has lost a CVRA lawsuit over an at-large voting system), the Santa Clara County Superior Court would order Sunnyvale to switch to district elections. The Court may also declare our upcoming November 6 City Council election illegal. Finally, the Court would award the claimant millions in attorneys’ fees. The Palmdale Court awarded the claimants $4.6 million. The plaintiffs in the Santa Clara case are asking for a similar amount.
Sunnyvale could avoid all that by switching to district voting. However, the City Council must pass a resolution to do that within 45 days of its receipt of the claimant’s notice (before November 20, approximately).
Such a switch would not be irrevocable. Sunnyvale could continue with the process of evaluating voting systems it began on September 6. If its voters choose to do so, Sunnyvale could switch to another voting system in 2020. Until then it would be safe from a CVRA lawsuit because a CVRA lawsuit cannot be brought against a by-district voting system.
David Wessel is a Sunnyvale resident and an attorney in private practice. He is also on the Board of Directors of the Sunnyvale Democratic Club.