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Home My WebLink AboutShenkman & Hughes Correspondence 2022-01-13.pdf28905 Wight Road CV:J bu, California 90265 (310) 4 57-0970 az� J` 3-,P``�trOhl„ht5 t,,n GEF� 5 q��1C� Get �ti�3i A,+ Lj0 It YN VIA CERTIFIED MAIL January 103 2022 Kristina Santana —City Clerk City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 Re: Violation of Califr��°,pia � Ming Fights Ara I write on behalf of our client, Southwest Voter Registration Education Project and its members residing within the City of Diamond Bar ("Diamond Bar" or "City"). Diamond Bar relies upon an at4arge election system for electing candidates to its governing board. Moreover, voting within the City is racially polarized, resulting in minority vote dilution, and, therefore, the City's at4arge elections violate the California Voting Rights Act of 2001 ("CVRA")• The CVRA disfavors the use of so-called "at4arge" 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.401 660, 667 ("Sanchez"). For example, if the U.S. Congress were elected through a nationwide at4arge 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 bare candidates in the voter's district, and the 435 candidates receiving the most nationwide votes would be elected. At -large elections thus allow a majority of voters to control evey 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 schemes inay 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 January 10, 2022 Page 2 of 3 minority voters." Gingles, at 47. When racially polarized voting occurs, dividing the political unit into single-merrlber districts, or some other appropriale 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 LJ.S.C, § 1973, which Congress enacted in 1965 and amended in 1982, targets, among other things, at4arge 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 enforcementt 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." daur°egi v. City of Palmdale (2014) 226 Cal. App. 4a, 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. Com. 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 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 January 10, 2022 Page 3 of 3 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. As of the most recent data released by the United States Census Department, Latinos comprise over 20% of the City's population. Yet, despite that substantial proportion of the population, there are no Latinos on the City Council. The current and historical underrepresPnt = i. n f ;_,iti!"?oc on the Cit�y's governing board is reveg- ling. The City's at -large systeta� dilutes the ability of I.,atinos (a "protected class") — to elect candidates of their choice oN othepcvise influence the outcome of the City's elections, The City's election history is illustrative. For example, in the City's most recent 2020 election, Sam Castorena and Tommy Orona both lost their respective bids for City Council, despite significant support from Latino voters. That election evidences vote dilution which is directly attributable to the City's unlawful at -large election system. Exogenous elections too, such as Proposition 187 (1994), Proposition 209 (1996), Proposition 227 (1998) and the 2018 races for Secretary of State, .Attorney General and Insurance Commissioner reveal the same racially polarized voting in Diamond Bar. 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 racially polarized elections for Diamond Bar's city council and exogenous elections, we urge the City to voluntarily change its at -large system of electing its City Council. Otherwise, on behalf of residents within the jurisdiction, we will be forced to seek judicial relief. Please advise us no later than March 1, 2021 as to whether you would like to discuss a voluntary change to your current at -large system. We look forward to your response. �Ieiy trtt y yours, IG Kevin 1. Shenkman