HomeMy WebLinkAboutShenkman letter 09-25-2017 SEP 25'17 PM3:56
28905 Wight Road
Malibu,California 90265
(310)457-0970
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VIA CERTIFIED MAIL
September 19, 2017
Susan Domen, City Clerk
City of Lake Elsinore
130 South Main St.
Lake Elsinore, CA 92530
Re: Violation of California Voting Rights Act
I write on behalf of our client, Southwest Voter Registration Education Project and
its members redising in the City of Lake Elsinore ("Lake Elsinore"). Lake
Elsinore relies upon an at-large election system for electing candidates to its City
Council. Moreover, voting within Lake Elsinore is racially polarized, resulting in
minority vote dilution, and therefore Lake Elsinore's at-large elections violate the
California Voting Rights Act of 2001 ("CVRA").
The CVRA disfavors the use of so-called "at-large" voting — an election method
that permits voters of an entire jurisdiction to elect candidates to each open seat.
See generally Sanchez v. City of Modesto (2006) 145 Cal.App.41" 660, 667
("Sanchez"). For example, if the U.S. Congress were elected through a nationwide
at-large election, rather than through typical single-member districts, each voter
could cast up to 435 votes and vote for any candidate in the country, not just the
candidates in the voter's district, and the 435 candidates receiving the most
nationwide votes would be elected. At-large elections thus allow a bare majority of
voters to control every seat, not just the seats in a particular district or a
proportional majority of seats.
Voting rights advocates have targeted "at-large" election schemes for decades,
because they often result in "vote dilution," or the impairment of minority groups'
ability to elect their preferred candidates or influence the outcome of elections,
which occurs when the electorate votes in a racially polarized manner. See
Thornburg v. Gingles, 478 U.S. 30, 46 (1986) ("Gingles"). The U.S. Supreme
Court "has long recognized that multi-member districts and at-large voting
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schemes may operate to minimize or cancel out the voting strength" of minorities.
Id. at 47; see also id. at 48, fn. 14 (at-large elections may also cause elected
officials to "ignore [minority] interests without fear of political consequences"),
citing Rogers v. Lodge, 458 U.S. 613, 623 (1982); White v. Register, 412 U.S. 755,
769 (1973). "[T]he majority, by virtue of its numerical superiority, will regularly
defeat the choices of minority voters." Gingles, at 47. When racially polarized
voting occurs, dividing the political unit into single-member districts, or some
other appropriate remedy, may facilitate a minority group's ability to elect its
preferred representatives. Rogers, at 616.
Section 2 of the federal Voting Rights Act ("FVRA"), 42 U.S.C. § 1973, which
Congress enacted in 1965 and amended in 1982, targets, among other things,
at-large election schemes. Gingles at 37; see also Boyd & Markman, The 1982
Amendments to the Voting Rights Act: A Legislative History (1983) 40 Wash. &
Lee L. Rev. 1347, 1402. Although enforcement of the FVRA was successful in
many states, California was an exception. By enacting the CVRA, "[t]he
Legislature intended to expand protections against vote dilution over those
provided by the federal Voting Rights Act of 1965." Jauregui v. City of Palmdale
(2014) 226 Cal. App. 411 781, 808. Thus, while the CVRA is similar to the FVRA
in several respects, it is also different in several key respects, as the Legislature
sought to remedy what it considered "restrictive interpretations given to the federal
act." Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001-2002 Reg.
Sess.) as amended Apr. 9, 2002, p. 2.
The California Legislature dispensed with the requirement in Gingles that a
minority group demonstrate that it is sufficiently large and geographically compact
to constitute a "majority-minority district." Sanchez, at 669. Rather, the CVRA
requires only that a plaintiff show the existence of racially polarized voting to
establish that an at-large method of election violates the CVRA, not the
desirability of any particular remedy. See Cal. Elec. Code § 14028 ("A violation
of Section 14027 is established if it is shown that racially polarized voting occurs
...") (emphasis added); also see Assem. Corn. on Judiciary, Analysis of Sen. Bill
No. 976 (2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 3 ("Thus, this bill
puts the voting rights horse (the discrimination issue) back where it sensibly
belongs in front of the cart (what type of remedy is appropriate once racially
polarized voting has been shown).")
To establish a violation of the CVRA, a plaintiff must generally show that
"racially polarized voting occurs in elections for members of the governing body
of the political subdivision or in elections incorporating other electoral choices by
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the voters of the political subdivision." Elec. Code § 14028(a). The CVRA
specifies the elections that are most probative: "elections in which at least one
candidate is a member of a protected class or elections involving ballot measures,
or other electoral choices that affect the rights and privileges of members of a
protected class." Elec. Code § 14028(a). The CVRA also makes clear that
"[e]lections conducted prior to the filing of an action ... are more probative to
establish the existence of racially polarized voting than elections conducted after
the filing of the action." Id.
Factors other than "racially polarized voting" that are required to make out a claim
under the FVRA — under the "totality of the circumstances" test — "are probative,
but not necessary factors to establish a violation of the CVRA. Elec. Code §
14028(e). These "other factors" include "the history of discrimination, the use of
electoral devices or other voting practices or procedures that may enhance the
dilutive effects of at-large elections, denial of access to those processes
determining which groups of candidates will receive financial or other support in a
given election, the extent to which members of a protected class bear the effects of
past discrimination in areas such as education, employment, and health, which
hinder their ability to participate effectively in the political process, and the use of
overt or subtle racial appeals in political campaigns." Id.
Lake Elsinore's at-large system dilutes the ability of Latinos (a "protected class")
— to elect candidates of their choice or otherwise influence the outcome of Lake
Elsinore's council elections.
The elections of the past seventeen years are illustrative. During that time period,
only six Latino candidates ran for City Council. Opponents of fair, district-based
elections may attribute the lack of Latino candidates vying for City Council
positions to a lack of Latino interest in local government. On the contrary, the
paucity of Latino candidates seeking election to the Lake Elsinore City Council
reveals vote dilution. See Westwego Citizens for Better Government v. City of
Westwego, 872 F. 2d 1201, 1208-1209, n. 9 (5"' Cir. 1989).
Furthermore, of the six Latino candidates that ran for Lake Elsinore's council,
only two were actually elected. The following candidates, though they garnered
significant support from Latino voters, were unable to secure City Council seats
due to the bloc voting of the non-Latino majority: Jimmy Flores in 2001, 2003,
and 2008; Connie Soto in 2006; Jerry Carlos in 2012; and Edwin Castro in 2016.
According to recent data, Latinos comprise approximately 48.4% of the population
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of Lake Elsinore. There is currently only one Latino council member on Lake
Elsinore's city council. The contrast between the significant Latino proportion of
the electorate and the near absence of Latinos to be elected to the City Council is
telling.
As you may be aware, in 2012, we sued the City of Palmdale for violating the
CVRA. After an eight-day trial, we prevailed. After spending millions of dollars, a
district-based remedy was ultimately imposed upon the Palmdale City Council,
with districts that combine all incumbents into one of the four districts.
Given the historical lack of Latino representation on the City Council in the
context of racially polarized elections, we urge Lake Elsinore to voluntarily
change its at-large system of electing council members. Otherwise, on behalf of
residents within the jurisdiction, we will be forced to seek judicial relief. Please
advise us no later than November 10, 2017 as to whether you would like to discuss
a voluntary change to your current at-large system.
We look forward to your response.
Vet trul ours
Kevin I. Shenkman