San Francisco Chronicle - (Sunday)
S.F. schools in crosshairs of rivalry
Lawyers who make big business out of forcing elections to change are bringing feud to city
A long-running feud between a Bay Area attorney and a rival lawyer in Southern California is spilling over into San Francisco politics, potentially triggering huge changes to the city’s public school system — and underscoring flaws in a powerful state law that often allows private attorneys to shape public policy.
Scott Rafferty of Walnut Creek and Kevin Shenkman of Malibu have never liked each other, to say the least. Both specialize in suing cities, school boards and other government agencies under the California Voting Rights Act, which seeks to ensure that racial and ethnic minorities are fairly represented in local government.
In December, the Chronicle published an investigative series on the CVRA, finding that the law is achieving mixed results, sometimes leaving minority voters and candidates worse off than before and shifting millions in taxpayer money to a small group of plaintiffs’ attorneys.
The law allows attorneys to collect fees when they win or settle a case, and these incentives have produced an explosion of lawsuits and demand letters that are transforming the way Californians vote. Shenkman and a handful of his colleagues have earned $15 million in the past decade. He has sued or threatened to sue at least 175 local jurisdictions throughout California. Meanwhile, Rafferty has targeted 30 local agencies, mostly in the Bay Area.
The two lawyers could not be more different in temperament and style. Shenkman, who grew up in Detroit, quotes rapper Tu
pac Shakur, drops fbombs and wisecracks, rides motorcycles for fun and gets right to the point. Rafferty, who went to Princeton, is serious and lugubrious, fond of long digressions. They first clashed in 2017, when Shenkman sent demand letters to a city council and school board in Rafferty’s home county of Contra Costa and Rafferty publicly questioned the merits of the cases.
Since then, in letters and comments to reporters, Rafferty has criticized Shenkman for having “carpet-bombed” the state with CVRA-related legal threats, saying that Shenkman doesn’t back up his claims and picks on small government agencies. One Shenkman case against a tiny town in Santa Barbara County was “kind of unconscionable,” Rafferty told the Chronicle last year.
Shenkman has said Rafferty lacks his experience with voting rights cases and “doesn’t know what he’s doing.” Shenkman got into the field in 2011, taking several CVRA cases to trial and winning large, precedent-setting judgments against cities and school boards. Rafferty handled his first CVRA case six years later, in 2017.
“He is a f—ing moron,” Shenkman told the Chronicle in December. “And that is on the record.”
Now Rafferty’s disdain for Shenkman appears to have helped lay the ground for a pair of legal threats against San Francisco schools.
Today it’s Rafferty who is targeting a local school board under the CVRA — and Shenkman is the one offering to defend the schools against Rafferty, free of charge.
Last month, Rafferty, 67, sent demand letters to the San Francisco Board of Education and the City College of San Francisco board, alleging that both institutions are suppressing the voting rights of minorities by conducting atlarge elections.
Rafferty said the boards need to junk their current systems and switch to district elections, arguing that the change would empower Black, Asian and Latino voters. Otherwise, he said, he would sue the schools under the CVRA. The school board has hinted that it will cave to Rafferty, settling the case and adopting districts voluntarily; members will be voting on the issue this week.
Both of the boards targeted by Rafferty are racially diverse. The sevenmember Board of Education contains Black, Asian American, Middle Eastern, Latino and mixedrace directors, along with two white directors. The City College board has six minority members and one white person.
But Rafferty charged that the boards’ at-large elections have a “discriminatory effect on minority neighborhoods and disserves voters of all races.”
He also asked each board to pay him up to $40,000, under a provision of the CVRA that allows plaintiffs’ attorneys to collect fees when they force a quick settlement. San Francisco taxpayers would be on the hook for those fees.
According to the text of the law and court precedents, plaintiffs in CVRA cases must prove two things. One, they have to demonstrate a pattern of “racially polarized voting” — different racial groups voting as blocs in at-large elections. Two, they need to show that those elections “dilute” the influence of minority voters and that an alternative system such as districts or rankedchoice voting would correct the problem.
Robert Rubin, the renowned San Francisco civil rights lawyer who cowrote the CVRA in 2002, said he hasn’t read Rafferty’s letters but doubts that the school board is violating the law Rubin helped create. Rubin is an ally of Shenkman, having worked alongside him on one of the biggest voting rights cases in state history, an ongoing eight-year lawsuit against Santa Monica. Rubin has also been involved with San Francisco’s public schools, pushing the 2016 ballot initiative to allow noncitizens to vote for board members.
“If there’s no racially polarized voting, and there’s no analysis, there’s no case,” Rubin said. “We’ve gotta protect the sanctity of this law, too. It’s a very important law. We don’t want it to be trashed by people who are misusing it.”
Two other experts on voting rights said they are skeptical of Rafferty’s claims, explaining that San Francisco elections in recent decades suggest that race isn’t usually the driving factor: Ideology and policy have more influence on results, and many candidates have been able to win with votes from other racial groups.
“There’s certainly some racially polarized voting — campaigns that target Asian or Latino voters,” said Chris Elmendorf, Martin Luther King Jr. Professor of Law at UC Davis. “But it’s not so severe as to prevent minorities from getting elected, when they depend on crossover voting.” He said he thinks the city boards can win if they mount a defense against Rafferty.
“San Francisco would be a very hard case to make,” agreed J. Morgan Kousser, a history professor at the California Institute of Technology who has testified as an expert witness for Shenkman in six CVRA trials. “There are Black candidates, there are Asian candidates who win.”
Responded Rafferty, “Yes, there are members of the political elite of every ethnicity in San Francisco. That’s true. But this is about the voters. It’s about their disengagement from the system, and the fact that they really do not have a dedicated voice in the governance of the board.”
Rafferty portrayed himself in the letters as an ally of the schools. He suggested he is actually trying to protect them — against possible legal action from his rival.
“My practice differs from Mr. Shenkman in almost every possible respect,” Rafferty noted.
Under the rules of the CVRA, the first lawyer to send a demand letter gets priority for the $40,000 fee. Shenkman, Rafferty wrote, has sent so many letters throughout the state that the Malibu attorney or some other lawyer was all but certain to target San Francisco at some point — unless Rafferty threatened to sue the boards first.
“That’s batshit nuts,” Shenkman said. “In his paranoid mind, he thought that me or someone else might beat him to it.”
Shenkman, 45, said he has never considered suing any organization in the city under the CVRA: “Nothing in San Francisco is, or has ever been, on our radar.” Because the city’s politics are famously complex and multiracial, he said, it would probably be challenging to prove that minority voters are being harmed.
In fact, Shenkman said, he’s so bothered by Rafferty’s letters that he would be glad to defend the Board of Education free of charge: “I’m 100% serious.” He said he conveyed the offer to a legal colleague who represents the board but isn’t sure it was conveyed. The colleague did not respond to the Chronicle’s requests for comment.
During a Friday interview, the Chronicle told Rafferty about Shenkman’s offer to defend the schools. Rafferty laughed softly.
“I’m not surprised,” he said. “But fine.”
Rafferty also blamed the Chronicle for spurring the demand letters, writing that the newspaper’s series, which focused on Shenkman, raised the profile of the CVRA and made legal action against the schools “all but inevitable.”
His language echoes several long email critiques he sent to the Chronicle after its investigation was published. In a December phone call, Rafferty complained that the stories made him look like a “lightweight” compared with Shenkman.
On Friday, Rafferty defended his allegations against the San Francisco boards. He said his research has found racial disparities in voter turnout and preference, showing that the needs of Latino and Asian neighborhoods have been ignored. He pointed to the 2022 recall of three school board members, which was heavily supported by Latino and Asian voters. If minority voters had wanted those members on the board in the first place, he said, “there wouldn’t have been a recall.”
Latinos, Asians and white people are currently underrepresented on the school board, compared with their numbers across the city, while Black and Middle Eastern communities are overrepresented. This means that Latino, Asian and white voters could see gains under district elections, at a cost to other groups. A map of the home addresses of board members shows that several notable areas of the city, including the Tenderloin, South of Market and Marina, have no representative living there.
While the experts on California election law said they are skeptical that Rafferty’s allegations against the schools have merit, they acknowledged
that it can be expensive and time-consuming to dispute a CVRA allegation, and the school board might decide to settle rather than absorb those risks.
San Francisco schools are at a fiscal crossroads after overspending for years, with the possibility of a state takeover in the coming year or two unless they figure out how to avoid a $400 million deficit.
According to the law, if the school board switches to districts and pays Rafferty $40,000, it gets immunity from any CVRA lawsuit — even if the new districts don’t end up helping minority voters and candidates, which is possible.
“This is the persistently messed-up thing about the CVRA,” Elmendorf said. As long as the target of a lawsuit adopts districts, “they cannot be sued. It is a get-out-of-jail-free card.”
The Chronicle investigation found that dozens of local governments have settled questionable CVRA claims because they can’t afford to risk a ruinous lawsuit. While in theory CVRA cases are supposed to be hashed out in court, in practice the law’s outcomes are often driven by the choices and personalities of plaintiffs’ attorneys.
Rafferty has previously blasted Shenkman for making allegations against school boards without performing a detailed analysis of voting patterns. In a 2017 missive, for instance, Rafferty told a school board in Contra Costa County that “typically, Mr. Shenkman asserts that a district has ‘racially polarized voting’ without a scintilla of evidence.”
The Chronicle investigation found that Shenkman’s demand letters tend to be three or four pages of mostly legal boilerplate, with some examples of local election results to back up claims of racial discrimination. Rafferty’s letters, in contrast, can run to 20 pages, with charts and voting statistics. He prides himself on his research and the fact that he’s not “going after small players,” he said last year. “I go after the meanest, the baddest.”
But Rafferty’s January letters are uncharacteristically brief. In his demands to the San Francisco school and community college boards, he gives no evidence of racially polarized voting or vote dilution, promising only that he “will be providing detail in the coming weeks.” He doesn’t discuss recent election results, unlike Shenkman.
Shenkman said this shows that Rafferty “has no idea if there’s a violation or not,” he said. “It’s dangerous.”
Rafferty acknowledged to the Chronicle that he is trying a new tactic.
“I’ve always given a lot of detail” in demand letters, he said. “And it hasn’t gotten me much respect. It just hasn’t been valued. That was one of the big takeaways from your story.” He referred to the Chronicle’s December profile of Shenkman, which was headlined, “Hero or opportunist? Malibu lawyer remakes California voting.”
Rafferty continued, “What was he called? A hero? … But I have the evidence. I would have been delighted to present it.” The school and community college boards, however, “haven’t even spoken to me.”
Another reason Rafferty sent the letters hastily, without evidence, also appears to involve the rivalry with Shenkman. Rafferty said that twice before, in Concord and Victorville (San Bernardino County), he had poured up to 100 hours into researching CVRA violations and attending public hearings, only to find that Shenkman had sent an earlier demand letter to those cities. When that happens, the attorney who postmarked his letter first gets priority — and the money.
“I never want to be preempted again,” Rafferty said Friday. “I’ve turned this case down multiple times. More people have come to me about San Francisco than anyplace else. I just decided I’m not going to be living in fear of what people are going to say.”
He added, with irritation, “Shenkman has nothing to do with this.”