Tectonic shift in local elections created by a flawed state law

Cities and school districts across California are facing legal ultimatums: Convert from at-large elections to balloting by district, or risk spending millions of dollars on litigation.

Some jurisdictions are fighting back. But most are capitulating, resulting in a radical revamping of the political process that proponents say will improve the voting power of minority groups.

“It’s really changing the nature of representation in California,” says Richard Hasen, election expert at the UC Irvine Law School. “Many of us think of California as post-racial, but, on the ground, that’s not what we really see.”

How much this will empower, say, Latinos, Asian-Americans or African-Americans remains unclear. The data so far are inconclusive. And, in some cases, it’s unlikely to make a difference.

What is clear is that the California Voting Rights Act, the flawed state law driving the push for district elections, incentivizes attorneys to initiate legal action and local governments to cave.

City and school district decisions are often made based solely on minimizing legal costs rather than whether voting in the jurisdiction is racially polarized.

The law needs correction to require complaining attorneys first demonstrate that there is a problem and that district elections would solve it. And when district elections aren’t the best solution, the law should encourage alternatives that could work better.

Meanwhile, “This quiet tectonic shift in local government is accelerating,” according to a Claremont McKenna College report. In the past year, the push, which was largely in Southern California, has migrated to the Bay Area.

Affected cities include Morgan Hill, Fremont, Brentwood, Concord, Martinez, Santa Rosa and Santa Clara. School districts include Dublin, Martinez, Redwood City Elementary and Sequoia Union High School District.

More than 250 California jurisdictions have or will soon implement district elections because of the state law, according to National Demographics Corp., which helps local governments draw new district boundaries.

The attorney leading the charge is Kevin Shenkman of Malibu, who struck fear in local jurisdictions by winning a 2014 state appellate court decision against Palmdale — and collecting $4.5 million in legal fees from the city.

The case prompted the League of California Cities to support 2016 legislation granting targeted government agencies 45 days to evaluate demands and 90 more days to implement district elections without fear of litigation.

If they do so, their legal exposure is limited to $30,000. So jurisdictions receiving demand letters are quickly folding. And attorneys like Shenkman are targeting more local governments.

Which is what the state Legislature intended when it passed, and then-Gov. Gray Davis signed, the state Voting Rights Act in 2002. They wanted to make it easier to seek district elections if minority voting influence was diluted. Easier than under federal law, that is.

At issue is the laudable notion that minority group votes should not be weakened because of the geography of election boundaries.

For example, if Latino residents were concentrated in one corner of a city, the influence of their votes would be diluted if balloting were conducted citywide.

But if the city were divided into districts, one district might have mostly Latino residents, who could elect a council member of their choosing.

The U.S. Supreme Court has a three-prong test for whether election boundaries violate the federal Voting Rights Act: The majority group votes as a bloc to usually defeat the minority’s preferred candidate; the minority group tends to vote similarly; and the minority group is large enough and sufficiently geographically compact to be a majority in a voting district.

In contrast, the state Voting Rights Act does not require geographic compactness. Thus, it encourages establishment of district elections — and protects local governments from litigation if they do so — even though that might not create a district with a strong minority voting bloc.

That discourages consideration of other options that might be more effective but don’t provide legal protection. As two election experts, Stanford political science professor Bruce Cain and Loyola Law School professor Justin Levitt, separately argue, there are better alternatives when minority populations are evenly spread out.

The most frequently mentioned option is cumulative voting, under which candidates would be elected at-large, but voters could weight their choices. For example, assume there were three open seats on a city council. Each voter would then have three votes, but they could opt to use all of them for one candidate or spread them around.

Unfortunately, state law discourages creative solutions like that. If lawmakers truly want to empower minority groups, they should ensure that racially polarized cities implement changes that do so.