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Will Charter Review Committee Recommendations Lead Santa Clara to the Courthouse?

On March 30, 2017, the City of Santa Clara was named in a California Voting Rights Act (CVRA) lawsuit. In response, the City Council re-convened its Charter Review Committee to study and recommend an election method for replacing the City’s current at-large by-seat system with a system that satisfies the lawsuit, and provides protected class voters the opportunity to elect City Council Members of their choice.

On July 18 the Santa Clara Charter Review Committee recommended a radical change to the City’s method of electing its City Council, involving election and voting methods that all prior CVRA court rulings have resisted.

As a member of that committee, I investigated many of the CVRA lawsuits and the courts’ resolution of those suits. I reviewed election methods in charter cities, census tract data, and the Lapkoff and Gobalet demographic study the City commissioned in 2011. This research led me to the conclusion that a six-district single member election system was the only solution that was both practical and would protect the City from CVRA lawsuits.

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The committee’s conclusions were different. The majority decided to recommend a two-district, multi-member (three members/district) election plan–and a Ranked Choice Single Transferrable Vote voting system, “as soon as the Santa Clara County Registrar of Voters Office can support such a system.”

This change is complex, with an unusual multi-member by-district system–which is used in only one city in the U.S., by my search–and a complicated voting method. But complexity alone isn’t what makes this plan risky.

The first risk is that this plan may not be allowed by Santa Clara County Superior Court.

Section 14026 of the CVRA defines “At-large method of election” as a “method of electing members to the governing body of a political subdivision; in which the voters of the entire jurisdiction elect the members to the governing body.” In this case, the governing body is Santa Clara’s City Council.

Section 14027 of the same law states, “An at-large method of election may not be 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, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class.” “Protected class” refers to a “class of voters who are members of a race, color, or language minority group, as this class is … defined in the federal Voting Rights Act of 1965.”

No lawsuits under the CVRA (20+) have settled for at-large or multi-member election methods. The courts have settled for only single member, four or six-district election methods.

Since 1962, the U.S. Supreme Court has developed history of judgments on voting rights. Many of these rulings have involved 5th and 14th Constitutional Amendments, where the Court has issued some ruling of “invidious discrimination”* and “vote dilution” against a jurisdiction of “at-large” and “multi-member” election districts. The Supreme Court’s decision history is likely to inform lower court rulings in redistricting and apportionment cases, including CVRA cases.

Ranked Choice voting may not be accepted by the court–so far no court has ruled that alternative voting methods satisfy the law, under the CVRA. Last year Gov. Jerry Brown vetoed a bill to include and allow Ranked Choice voting provisions in local elections, writing that, “In a time when we want to encourage more voter participation, we need to keep voting simple. Ranked choice voting is overly complicated and confusing. I believe it deprives voters of genuinely informed choice.”

The second risk is Santa Clara County’s present inability to handle the proposed voting system, and its ability to obtain and implement a voting technology upgrade, Sequoia Voting Systems – System 4.0, in time to satisfy the Santa Clara’s election needs.

The California Secretary of State’s Office of Technology Assessment reported in a 2008 report that the Sequoia System 4.0, with its applications and its snap-in module, satisfies all the state’s tested requirements for “single-winner” voting technology. The report does not leave a clear understanding of how the Sequoia 4.0 system might be used for “multi-winner” elections.

Although I have resigned from the committee, I am left with concerns as to whether this plan, accepted by the City Council, is the right plan for Santa Clara. I invite the Council to take a second look.

*Invidious discrimination: “Treating a class of persons unequally in a manner that is malicious, hostile, or damaging.”

Santa Clara resident Rex McIntosh is a retired environmental business owner, former educator, columnist for the Salinas Californian and long-time activist and neighborhood organizer. He has served on civic committees in municipalities, and for college and school districts.

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