Editor’s note: this article was written prior to the October 16, 2013 ruling by the 2nd District Court of Appeal that lifted the injunction barring the November 5, 2013 election.
Real life political drama provides more questions than answers
By Parissh Knox, Best Best & Krieger LLP
Palmdale, a suburb nestled in the Mojave Desert north of Los Angeles, is among a growing number of cities, community college districts, school districts and other agencies in California that are under tremendous pressure to change how their governing bodies are elected because of the California Voting Rights Act or CVRA. In July, a Los Angeles Superior Court judge ruled that the City of Palmdale’s “at-large” election system diluted the chances of minority voters to elect their preferred candidates. The city must now change to a “by district” election system. However, the court has not yet determined how the proposed district lines should be fashioned.
While Palmdale officials have yet to decide whether to appeal the July decision, they are now grappling with a preliminary injunction issued last month halting the upcoming November 5 election to fill two open seats on the Palmdale City Council. Despite this July decision, the city scheduled this November election as an at-large election in part because the proposed remedial measures would not be finalized before the ballots were mailed out. This preliminary injunction suggests that courts can put all current election cycles on hold until the court completes its remedial process.
The Palmdale Irony
Why, perhaps, did the plaintiffs bring this injunction? The plaintiffs’ initial complaint alleges that the “current absence of any Latinos or African Americans on the Palmdale City Council reveals a lack of access to the political process.” Plaintiffs’ core argument is that the upcoming election, regardless of the current slate of candidates, is only temporary relief and not a permanent one.
The irony behind this injunction is that three of the four city council candidates who had qualified to appear on next month’s ballot were actually minority candidates: two black candidates, one Latino candidate and one white incumbent. At least one open seat, if not both, would have been filled by new minority city council members. Meanwhile, Palmdale has appealed this preliminary injunction because the cancellation of a regularly scheduled city council election is fairly unprecedented and could, according to the city, create an immediate harm to the rights of voters.
The CVRA applies equally to both general law cities and charter cities as the dilution of minority voting rights is considered a matter of statewide concern. City councils and governing boards commonly use one of three variations of electing their members: (1) at-large elections; (2) by district elections; or (3) some type of mixed system. At-large election systems are those in which each member of the governing board is elected by all voters across the entire jurisdiction. Meanwhile, officials elected by district are elected only by voters in a particular geographical section of the jurisdiction. Meanwhile, mixed systems combine these features by having some members of the board elected at-large, others elected by district.
Following adoption of the CVRA in 2002, it has become significantly easier for plaintiffs to prove voting discrimination using a relatively lower burden of proof than what is comparatively required under federal law. The CVRA does not require proof of discriminatory intent by voters or elected officials in order to establish a violation. In California, a violation of the CVRA can be proven solely based on evidence of “racially polarized voting.” The following factors are probative, but not necessary, in order to establish racially polarized voting:
- a history of discrimination;
- the use of electoral devices or other 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.
Plaintiffs wishing to bring a claim only need to focus on actual voting patterns. No smoking gun of bigotry or geographic concentration of minority voters is required. In the Palmdale lawsuit, plaintiffs made their case of racially polarized voting by producing a regression analysis of all city council and mayoral election results since 2000. During this period, only one Latino candidate and no African-American candidates were elected under Palmdale’s at-large method of election. According to plaintiffs’ complaint, no Latino candidate or African-American candidate has been elected mayor since the city’s incorporation in 1962. As of the 2010 Census, Palmdale’s Latino population of any race was approximately 54.4 percent Latino and 14.8 percent African-American. According to the plaintiffs, both these populations are actually geographically concentrated within the city.
Jurisdictions, like Palmdale, that have diverse populations with few minority elected officials are at the most risk of challenge. Each jurisdiction still using this type of system is encouraged to review its own election history and seek the advice of its general counsel. Under existing law, it should be noted that courts are not required to consider the following:
- Patterns of voter turnout;
- Proof of intent to discriminate;
- Qualifications of individual candidates;
- Effectiveness of past campaigns for elected office;
- Candidate’s ability to raise campaign funds; and/or
- Candidate’s ability to run strong campaigns.
A Number of Unanswered Questions
The more you look behind the curtain, the more interesting the story gets. One of the two attorneys filing the injunction is the mayor of the neighboring city of Lancaster, making this a real-life political drama. Stay tuned … this will only get better as a number of legal and practical questions have been raised, including:
- Who is responsible for the costs incurred by each of the candidates?
- Will the county still bill the city for its canceled election?
- What is to be done with any mail-in ballots already submitted?
- How much is this going to cost Palmdale when it is all said and done?
- What is the actual history of Palmdale’s registered voter population?
- Does the state Legislature need to consider amending this legislation?
- In the future how would the appellate court rule if two minority candidates were subsequently elected to a governing board before the transition to a by district election system took place?
- What effect will this decision have on other courts in similar situations—will we see more canceled elections?
At this story continues, some of these questions will be hopefully answered as the litigation in this case proceeds, and their answers will inform other CVRA cases as well as agencies wrestling with the decision of whether they need to change to a by-district election as a preventative measure. The real victor in all of this may be those who recently filed suits or who are considering doing so soon.
Parissh Knox, an attorney with the Los Angeles offices of Best Best & Krieger, has significant experience advising elected officials, public agencies and community-based organizations. He is a skilled transactional attorney with expertise in the Brown Act, Political Reform Act, Fair Housing Act, public contracting, election law, and complex zoning and land use law. He is a contributing author of BB&K’s Political Law Update blog. He can be reached at email@example.com