San Mateo County Supervisors give the California Voting Rights Act the finger

On Tuesday the San Mateo County Board of Supervisors voted 4-1 to deny county voters the right to vote on a ballot measure recommended by the Civil Grand Jury and the Charter Review Committee to change the way supervisors are elected.

Adrienne Tissier kicked off the defense of the status quo, “You know I have been thinking about this long and hard because I know there have been people on both sides of this issue, but I think you have to look at our County as being a little different than most.”

San Mateo County is currently the only County of 58 in California that uses an at-large system.  The at-large election system strongly favors incumbents and those with major financial and institutional support.

Supervisors must reside in one of five districts, yet must run countywide. Running countywide is difficult for a grassroots candidate because of the high number of voting eligible people residing in the County.

District elections would make campaigns cheaper, thus encouraging greater numbers of talented candidates to run for a seat on the Board. It would become harder for the leaders of any political machine to dictate Board policy or manipulate political careers. Newly elected supervisors (and also, indirectly, County department heads and leaders of the County’s many political clubs, community-based organizations, and nonprofits) would be more responsive to neighborhood-level issues, problems, and concerns.

Tissier said, “I believe we shouldn’t change because we have the best of both worlds, we have also been very fortunate in this County that we have a reputation for being a sterling County. We are not myopic, we are not looking at just one specific district, we come from that district and we know that district well.”

On July 9, 2002, Governor Gray Davis approved the California Voting Rights Act of 2001.  This bill expands on voting rights granted under the federal Voting Rights Act by, granting standing to groups who are too geographically dispersed to elect their candidate of choice from a single member district. This eases the path for proportional voting systems to be used as remedies for minority vote dilution.

The act can cause local governments that use at-large methods of elections (as opposed to single-winner districts) and that have under-representation of minorities to have court-enforced remedies imposed on them. The act implies that those remedies are typically the imposition of a single-winner districting solution.

Tissier said, “Many of us came from a Council within that district that we’ve run in but we certainly know the County much better and we know the issues that effect all of the residents much better including outlying areas as was mentioned on the Coast, they felt that a lot of us didn’t know those issues but in fact I believe we actually do know those issues because we have to study everything.”

It appears that Tissier may not have studied the California Voting Rights Act (CVRA). Her decision to do nothing exposes the County to potential liability to pay very high attorneys fees awards to plaintiffs if the Lawyers Committee for Civil Rights (LCCR) files a lawsuit. The California Voting Rights Act mandates the award of costs, reasonable attorneys fees, and expert expenses to “prevailing” plaintiffs. Voting rights litigation is “expert intensive” and very expensive. Modesto reportedly paid the LCCR $3,000,000 as part of the settlement of the Sanchez case.

In the Madera school district case, there were only about six weeks of litigation activity; the school district did not contest the action at all, but rather, voluntarily changed to single-member trustee areas for board elections. The LCCR’s initial demand for fees to Madera Unified was approximately $1,000,000.  The high demand against Madera Unified came despite the fact the district is a majority Latino district with a diverse school board, including a Latino of 20 years tenure.

Prevailing defendants, on the other hand, are denied attorneys fees and litigation costs, unless the court finds a suit to be “frivolous, unreasonable, or without foundation,” an extremely high standard.

Closing comments from Tissier, “I for one am going to recommend that we leave things as they are today.  I believe it doesn’t cost as much to run for the Board as it does for Congress. It is not easy to get elected countywide but it shouldn’t be easy.  This is not an easy job, you want to make sure you have the best and the brightest and those that truly want to make a difference, and those that are truly looking at the entire County.”

Mark Church said, “I would agree with Adrienne’s comments and my understanding of the charge of the Charter Review Committee was to make recommendations they believe would improve our system of governance, not to decide what measures should actually go on the ballot, that’s really for this Board to determine…I would support keeping the current system and not placing this on the ballot.”

Rose Jacobs Gibson, the only person of color on the Board, said, “It really serves the people of San Mateo County when you run at-large.”

California law interprets “prevailing party” more broadly than the analogous federal law governing attorney’s fee awards under Section 2 of the Voting Rights Act. In California, plaintiffs can recover fees under the so-called “catalyst theory” even if there is never a court order issued in their favor. The catalyst theory permits recovery of attorney’s fees if there is any “causal connection” between the lawsuit and a change in the defendant’s behavior—even if no formal legal obligation stems from the litigation. Consequently, even if a jurisdiction voluntarily adopts district elections immediately after a CVRA action is filed against it, as Madera Unified School District did, reasonable attorneys fees may still be awarded.

Jacobs Gibson appeared confused about the letter the Board received from the LCCR and shuffled through her notes seemingly unable to find the letter. Jacobs Gibson said, “There was a letter that raised a question as to whether or not it was Constitutional for us to continue to operate at-large.”

In response Michael Murphy said, “Right, and that had to do with a letter the Board received [from] the Lawyers Committee for Civil Rights back in April essentially alleging that the method of at-large elections violates the California Voting Rights Act, and um that matter was discussed by, there was testimony given by the Lawyers Committee at a Charter Review Committee [meeting].  To make it real clear with regards to the law, there was some suggestion that the law was essentially pretty prescriptive in the sense that, if you showed any sort of imbalance among ethnic or national groups covered by the act, that meant that the system was automatically illegal.

Only a court can make that determination.  The things that must be proved […] [for a] plaintive class [to prevail is] that members of the class tend to vote as a block and the electoral choices that a protected class are different than the electoral choices preferred by voters in the rest of the electorate.  It’s a matter of proof.  In looking at this thing, in looking at the matter, we’re not seeing at this point that evidence having been presented.  So there is nothing in what’s being proposed here that we reached a conclusion that would per se staying at-large elections violates the California Voting Rights Act.  Whether or not it’s challenged is totally speculative at this time.”

Following Michael Murphy’s inarticulate and confusing legal recommendations Carole Groom mixed-up district and at-large elections when she said, “I also favor maintaining the district elections, or the at-large elections and do not suggest that we place a ordinance to elect Supervisors by district.”

Rich Gordon said, “I think clarifying through a citizen vote would be helpful.  This issue comes up on a frequent basis, something like every 10 or 20 years in front of the Board as a Charter Review recommendation.  I suspect that it will be back again at some future Charter Review Committee probably 8 years from now when were mandated to review the Charter once again.”

Tissier made a motion to leave the system that is in place as is and Groom seconded the motion.  Roll call: Gordon “no”, Jacobs-Gibson “I could have gone either way but, um, I would say yah”, Tissier “aye”, Church “aye”, and Groom “aye”.

It appears that Jacobs Gibson was conflicted however she chose to ignore that at-large elections can function to dilute the voting strength of minority voters.

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