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Voting Rights Lawsuit To Be Heard April 23

Some might think that the apparent formation of a “Yes on A” ballot measure campaign committee and resources being donated to that effort—promoted (paid) Facebook posts, PR services from a national advocacy group—that voter approval is the only thing needed for the Santa Clara City Council’s proposed Two Districts/Ranked Choice Single Transferrable Vote proposal to become law.

That is far from the case.

On April 23 the California Voting Rights Act (CVRA), lawsuit that has been percolating for over a year will be heard in Santa Clara County Superior Court. The court will decide if voting in City Council elections is racially polarized and the City’s at-large system is “imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.”


Despite the fact that the City has a new election system on the June ballot, its official answer to the lawsuit is to deny any violations.

After the legality of the existing system is decided, the plaintiffs intend to “conduct further discovery regarding the proposed 2×3 system and its adequacy under the CVRA.” The final decision about an acceptable remedy for any violations found will ultimately be the court’s, and “If it is necessary to impose an alternative method for the November 2018.


“Robust Evidence” of Vote Dilution, Say Experts

The court will hear from two experts on voting and elections, some whose written testimony is included in the March 29 case management statement.

Morgan Kousser, Ph.D. a history professor California Institute of Technology, he found “robust evidence” of racial polarization in City elections.

“From 2002 through 2016, there were 10 City Council elections that involved Asian-

American candidates,” Kousser wrote in his testimony, “and the most important fact, ascertained without any statistical analysis whatsoever, is that all of the Asian-American candidates lost.”

Further, “All of the winning candidates in these 10 contests were non-Hispanic whites, and 6 of them were incumbents or former members of the Council, which put Asian-American hopefuls at even more of a disadvantage.” Kousser also found that five elections to be racially polarized using three different statistical methods.

“This analysis,” Kousser continued, “is reinforced by an overview of a proposal, two reports, and a PowerPoint presentation by a demographer hired by the City to advise it on whether…the City should consider …a district system of elections.

“The City’s concern and focus on district elections, the demographer’s first stress on the City’s vulnerability to a lawsuit and analysis of evidence using a particular statistical method, and her later, unexplained toning down, but not withdrawal, of her conclusions adds strength to my own conclusions,” he concluded.

The second expert whose testimony will be heard is Karthick Ramakrishnan, Ph.D., professor of political science and associate dean at the U.C. Riverside School of Public Policy.

In addition to the legacy of historical discrimination against Asians in California, Ramakrishnan’s analysis also extends to “the barriers that Asian American voters face—as a population that is predominantly immigrant, with significant language needs and lack of adequate voter outreach—with respect to local political participation and electoral innovations such as the ranked choice voting and ‘top two’ voting systems.”

The City’s reply to the complaint is that “application of the CVRA to the City” would violate California Constitution and the City Charter, that the CVRA is unconstitutional because it violates the separation of powers clause*, and “each and every purported cause of action contained therein, fails to allege facts sufficient to state a cause of action against the City.”

The City will also have two expert witnesses, although their testimony hadn’t been filed as of the March 29 statement. Council Member Dominic Caserta and Mayor Lisa Gillmor gave depositions in February.

The plaintiffs’ case management statement also notes that the City “did not provide answers, but only objections, to the vast majority of the discovery requests.”

It cost about $150,000 to put the Two Districts/Ranked Choice Single Transferrable Vote proposal item on the June ballot, according to the Santa Clara City Manager’s blog.

Case #17CV319862 will be heard on April 23 at 9 a.m. in the Downtown Superior Courthouse, Dept. 5, 191 North First Street in San Jose.


*This is the defense du jour against CVRA lawsuits. It has yet to prevail in court.


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