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Abridgment of Voting Rights and Racially Polarized Voting in the City of San Luis ObispoRECEIVED t �U0V 13 2019 SLO CITY CLERK Abridgment of Votin Raciall Rights and Votin Polarized in the C lOf WF San Luis Obispo California Voting Bights Project November 2019 Contents Introduction ......................... 3 1. United States Voting Rights Act ....... 5 2. California Voting Rights Act .......... 6 3. Abridgment of Voting Rights and Racially Polarized Voting in the City of San Luis Obispo ............. 10 4. Methods of Instituting District Elections in the City of San Luis Obispo .................... 24 5. Advantages of a Pre -Litigation Settlement ........... 26 6. Attorney's Fees ..................... 28 7. Benefits of District Elections .......... 30 Conclusion .......................... 32 Endnotes ............................. 33 Exhibits ............................. 34 2 Abridgment of Voting Rights and Facially Polarized Voting in the City of San Luis Obispo Introduction There is a very strong case for establishing district elections in the City of San Luis Obispo. Notwithstanding that close to 30 percent of the population of the City of San Luis Obispo is non-white, there has been a much smaller percentage of individuals from protected classes who have sought election and been elected to the City Council. The share of votes received by members of protected classes in City Council races has also been much smaller. Candidacies from members of protected classes have been only 10.7 percent of total candidacies for the San Luis Obispo City Council since the year 2000, have been only 10.0 percent of elected candidates, and have received only 9.3 percent of all votes cast. The numbers of members of protected classes in the City of San Luis Obispo is growing. The City of San Luis Obispo is currently composed of 27.7 percent of members of protected classes. The proportion of Latinos, particularly, in San Luis Obispo is growing. A number of cities in San Luis Obispo County and elsewhere have recently implemented district elections. There are many examples of racially polarized voting in the City of San Luis Obispo on state ballot measures. There are also examples of racially polarized voting and abridgment of protected class voting rights in the San Luis Coastal Unified School District, which includes the City of San Luis Obispo. There are significant differences between whites and members of protected classes in the City of San Luis Obispo in socioeconomic characteristics pertaining to education, employment, and health. There are significant differences between white and Latino student performance in local schools. 9 Abridgment of voting rights of members of protected classes, racially polarized voting, vote dilution, and differential voting characterize candidate elections and other electoral choices in the City of San Luis Obispo. The United States Voting Rights Act and, especially, the California Voting Rights Act provide strong and explicit protections for members of protected classes to challenge at - large forms of election to government bodies in court and to replace them with district elections. Pursuant to the California Voting Rights Act: "An at -large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class" (Sec. 14027). To date, no government jurisdiction in California has prevailed in a challenge to its electoral system on the basis of the California Voting Rights Act? The current at -large method of election in the City of San Luis Obispo impairs the ability of protected classes to elect candidates of their choice and their ability to influence the outcomes of elections. Therefore, single -member district elections must be instituted in the City of San Luis Obispo. H 1. United States Voting Rights Act The United States Voting Rights Act is landmark federal legislation prohibiting racial discrimination in voting. Passed in 1965 in the wake of suppression of civil and voting rights, the United States Voting Rights Act is intended to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution --in particular, the provisions of the Fifteenth Amendment: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race ... [or] color." According to the Untied States Voting Rights Act: "No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color ... A violation ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens ... in that its members have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice. The extent to which members of a protected class have been elected to office in the ... political subdivision is one circumstance which may be considered" (52 U.S. Code Sec. 10301). The United States Supreme Court has "long recognized that multi -member districts and at -large voting schemes may operate to minimize or cancel out the voting strength" of protected classes (Thornburg v. Gingles, 478 U.S. 30, 47 (1986)). Although legal actions against government jurisdictions in California to require district elections have been brought since 2002 pursuant to the California Voting Rights Act (rather than the U.S. Voting Rights Act), the federal Voting Rights Act also provides explicit and strong protection for the voting rights of members of protected classes. 2. California Voting Rights Act Building on the United States Voting Rights Act, the California Voting Rights Act was passed by the California legislature in 2001 and signed into law in 2002 to allow legal challenges to government jurisdictions in California with at - large methods of election to require them to institute district elections. According to the Rose Institute of State and Local Government at Claremont McKenna College, the statewide leader in gathering information on the transition from at - large to district elections: "The California Voting Rights Act was written to promote the use of by -district elections to encourage the election of candidates preferred by previously 'underrepresented' voters such as Latinos." 2 A copy of the California Voting Rights Act is included here as Exhibit B and incorporated herein by this reference. As previously cited, the core provision of the California Voting Rights Act (CVRA) is: 14027. An at -large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or abridgment of the rights of voters who are members of a protected class. The CVRA could not be more clear. An at -large method of election is illegal in California when it impairs the ability of members of protected classes to elect candidates of their choice or to influence the outcomes of elections as a result of dilution of the vote or abridgment of the rights of voters who are members of protected classes. Upon a showing of vote dilution or abridgment of the rights of voters of protected classes, at -large methods of election must be discontinued. According to Section 14028 of the CVRA: "A violation of Section 14027 is established if it is shown 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." C. In addition: "Other factors such as ... 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, ... are probative ... factors to establish a violation" of the CVRA (Sec. 14028(e)). The CVRA is clear with respect to the remedy for illegal, at -large elections: "Upon a finding of a violation ..., the court shall implement appropriate remedies, including the imposition of district -based elections, that are tailored to remedy the violation" (Sec. 14029, emphasis added). Though a remedy for a violation of the CVRA other than single -member district elections may be contemplated here, in fact no remedy has been ordered by a California court for violation of the California Voting Rights Act other than district elections. When, as in the City of San Luis Obispo, a political subdivision utilizes an illegal_. at -large method of election, district elections must be instituted. To date, dozens of legal actions have been brought against cities, school districts, special districts, and other government jurisdictions in California for violation of the California Voting Rights Act, including cities and government jurisdictions with smaller total and protected class populations than in the City of San Luis Obispo. All legal actions to enforce the CVRA have been successful. The replacement of at -large elections by single -member district elections is sweeping the state as a result of the CVRA. The Rose Institute also states: "Another significant effect of the California Voting Rights Act is the financial cost it has imposed ...--many challenges so far have resulted in settlements or legal awards over one million dollars."3 California cities to institute district elections just since 2016 are presented in the chart on page 9. More than 100 California cities now utilize district elections. In addition, more than 160 California public school districts have instituted district elections in recent years. The California Voting Rights Act was ruled constitutional by a California Court of Appeal in Sanchez v. City of Modesto in 2007. This decision held: "The CVRA is race neutral. It does not favor any race over others or allocate burdens 7 or benefits to any groups on the basis of race. It simply gives a cause of action to members of any racial or ethnic group that can establish that its members' votes are diluted. -4 The court also held: "Curing vote dilution is a legitimate government interest"; and: "To prove a violation, plaintiffs ... do not need to show that members of a protected class live in a geographically compact area."5 The CVRA states as well: "Proof of an intent on the part of the voters or elected officials to discriminate against a protected class is not required" (Section 14028(d)) to sustain a legal action brought pursuant to the California Voting Rights Act. A. California Cities to Institute District Elections Since 2016 (Partial List) Anaheim Lompoc Arroyo Grande Merced Bellflower Novato Brentwood Oceanside Buellton Oxnard Buena Park Palmdale Camarillo Palm Springs Carlsbad Paso Robles Carpinteria Patterson Cathedral City Rancho Cucamonga Chino Redwood City Citrus Heights Riverbank Claremont San Clemente Corona San Juan Capistrano Costa Mesa San Rafael Chino Santa Clara Dixon Santa Maria Duarte Santee Eastvale Stanton El Cajon Sunnyvale Fort Bragg Turlock Fremont Upland Fullerton Vallejo Garden Grove Visalia Goleta Vista Grover Beach West Covina Hesperia Wildomar Highland Woodland King City Yucaipa C 3. Abridgment of Voting Rights and Racially Polarized Votin& in the Cily of San Luis Obispo Abridgment of voting rights and racially polarized voting characterize elections in the City of San Luis Obispo. The following chart presents the candidates in each City Council election since 2000 and the number of votes they received. An asterisk (*) is placed next to candidates from protected classes: B. City Council Candidates and the Votes They Received In City of San Luis Obispo, 2000 to Present Year Candidate Votes 2000 Schwartz 7,609 Mulholland 7,405 Jeffrey 5,818 Haile 5,030 Tyson 1,664 Jursek 957 2002 Ewan 6,889 Settle 5,494 Brown 5,483 Carter 3,980 2004 Brown 9,840 Mulholland 8,051 Carter 5,416 Osborne 4,138 Lajoie 3,021 Hannifin 2,468 Kramer 1,797 10 Year Candidate Votes 2006 Settle 7,384 Carter 6,624 Conner 4,582 Mohan 2,417 2008 Marx 8,571 Ashbaugh 7,714 Brown 7,217 Carpenter 6,689 Ruiz* 1,827 Nelson 1,517 2010 Carter 7,552 Smith 5,390 Carpenter 5,161 Miller 2,706 Mohan 1,849 Ruiz* 11561 2012 Carpenter 9,098 Ashbaugh 8,848 Aranguena* 5,775 Rice 4,613 Strzepek 731 2014 Christianson 6,366 Rivoire* 5,481 Mullin 3,635 Clark 3,404 Cano 944 11 Year Candidate Votes 2016 Pease 9,473 Gomez* 8,489 Vujovich-La Sarre 6,171 Clark 5,129 Strickland 3,311 Lopez* 2,894 2018 Christianson 9,276 Stewart 7,045 Lopes 5,818 Lincoln 3,935 Flickinger 3,825 Voglin 2,062 Specht 2,012 As can be seen, few candidates from protected classes have sought election or been elected to the San Luis Obispo City Council since the year 2000. The next chart on the following page presents the total number of candidates in each San Luis Obispo City Council election since 2000, the number of candidates elected, the number of candidates from protected classes who ran, and the number of candidates from protected classes who were elected: 12 C. San Luis Obispo City Council Elections Since 2000, Candidates Year Total Elected Protect. Class Elected Protect. Candidates Candidates Candidates Class Cand.s 2000 6 2 0 0 2002 4 2 0 0 2004 7 2 0 0 2006 4 2 0 0 2008 6 2 1 0 2010 6 2 1 0 2012 5 2 1 0 2014 5 2 1 1 2016 6 2 2 1 2018 7 2 0 0 Total: 56 20 6 2 As can be seen, candidates from protected classes comprised only 10.7 percent (6 of 56) of total candidates for the San Luis Obispo City Council since 2000, and they comprised only 10.0 percent (2 of 20) of elected candidates. The next table on the following page presents the number of total votes in each San Luis Obispo City Council election since 2000, the number of votes cast for candidates from protected classes, and the percentage of total votes that were cast for candidates from protected classes: 13 D. San Luis Obispo City Council Elections Since 2000, Votes Year Total Votes Protect. Class Percentage 2000 27,483 0 0 2002 21,846 0 0 2004 34,731 0 0 2006 21,007 0 0 2008 33,535 1,827 5.4 2010 24,219 1,561 6.4 2012 29,065 5,775 19.9 2014 19,830 5,481 27.6 2016 35,467 11,383 32.1 2018 33,973 0 0 Total: 281,156 26,027 9.3 As can be seen, only 9.3 percent of all votes cast in elections for the San Luis Obispo City Council since 2000 have been for candidates from protected classes. Racially polarized voting characterizes elections in the City of San Luis Obispo. According to the 2017 United States Census Bureau American Community Survey estimate, the current population of the City of San Luis Obispo is close to 30 percent non-white: 14 E. City of San Luis Obispo Ethnicity, 2017 Groff Population Percentage White 33,980 72.3 Latino 8,020 17.1 Asian 2,609 5.6 African Am 1,034 2.2 Multi / Other 1,354 2.8 Total: 46,997 100.0 Particularly the proportion of Latinos in the City of San Luis Obispo is increasing. The next table presents the increase in the percentage of Latinos in San Luis Obispo since the year 2000, pursuant to United States census data: F. Percentage of Latinos in City of San Luis Obispo, 2000-2017 Year Latino Percentage 2000 11.7% 2010 14.7% 2017 17.1% San Luis Obispo's significant and increasing diversity is reflected even more in its school age population. The next table on the following page presents student enrollment by ethnicity in 2018-19 in the San Luis Coastal Unified School District, which includes the City of San Luis Obispo (source: California State Department of Education): 15 G. San Luis Coastal Unified School District Ethnic Enrollment, 2018-19 Group Total No. Percent African Am 69 0.9 Asian 271 3.5 Filipino 154 2.0 Latino 2,209 28.3 Native Am 28 0.3 White 4,650 59.5 Two or more 417 5.3 Other 15 0.2 Total: 7,813 100.0 Furthermore, pursuant to the California Voting Rights Act, it is not necessary that racially polarized voting be demonstrated only in elections to a government jurisdiction's governing board. Rather: "'Racially polarized voting' means voting in which there is a difference ... in the choice of candidates or other electoral choices that are preferred by voters in a protected class, and in the choice of candidates and electoral choices that are preferred by voters in the rest of the electorate" (Sec. 14026(e)) --irrespective of whether the differences in voting occurs for the governing board or council of the government jurisdiction in which district elections are sought or in some other electoral choice. This is made clear by legal specialists in districting, electoral issues, and voting rights Marguerite Leoni and Christopher Skinnell. They write in "The California Voting Rights Act," published by the Public Law Journal (vol. 32, Spring 2009), an official publication of the State Bar of California Public Law Section, and distributed by the League of California Cities: 16 No Minority Candidates. The fact that no members of the minority group have ever run for membership on the legislative body will not insulate a jurisdiction from CVRA challenge. The CVRA expressly provides that a violation can be shown if racially -polarized voting occurs in elections incorporating other electoral choices that affect the rights and privileges of members of a protected class, such as ballot measures. (Elec. Code Secs 14028(a) & (b).) Some particularly obvious examples ... might include Proposition 187 (denying services to undocumented immigrants), [and] Proposition 209 (preventing state agencies from adopting affirmative action programs) ... But other local measures may also serve the same purpose.6 This article also states that the California Voting Rights Act "makes fundamental changes to minority voting rights law in California"; the CVRA "alters established paradigms of proof and defenses ..., thus making it easier for plaintiffs in California to challenge allegedly discriminatory voting practices"; the CVRA "prescribe[s] an extremely light burden ... to establish a violation"; the CVRA "eliminate[s] the first precondition that plaintiffs must prove at the liability stage in federal litigation, that is, that the minority group is sufficiently large and geographically compact to form a majority in a single member district"; the CVRA "eliminates the requirement that plaintiffs prove discrimination"; the CVRA "mandates the award of costs, attorneys fees; and expert expenses to prevailing plaintiffs"; the CVRA "denies not only attorneys fees but also the costs of litigation to prevailing defendants"; the "sole fact that the voters of a city or special district have enacted an at -large electoral system by ballot measure, or rejected a by -district electoral system by ballot measure, will not protect a jurisdiction"; and "Demands by minority group representatives for a change to by -district elections must be taken seriously, even if the minority group is not numerous enough to form a majority in a new single member district. Changing voluntarily permits the elected representatives ... to control the districting process and the considerations that will guide the districting. Once the single member districts are in place, the [government jurisdiction] is in the CVRA safe harbor."7 A copy of this article is attached here as Exhibit E and incorporated herein by this reference. 17 Since the year 2000, there are many examples of racially polarized voting, vote dilution, or differential voting in the City of San Luis Obispo on state ballot measures. These include: H. Racially Polarized Voting on State Ballot Measures in the City of San Luis Obispo Since 2000 - Year Ballot Measure Purpose 2000 20 Lottery --Instructional Mat.s 2000 21 Juvenile Crime 2000 26 Majority vote for school bonds 2002 37 Vote requirements for taxes 2002 39 55% vote for local school bonds 2002 49 State educational grants 2002 52 Election day voter registration 2004 55 State school bonds 2004 72 Health care coverage 2006 1C Shelter funding 2006 1D Bonds for educational facil.s 2006 82 Tax increase for preschools 2008 3 Children's hospital 2014 45 Health care insurance 2016 51 State school bonds 2016 53 Revenue bond Moreover, the pattern of lack of candidates from protected classes running for and being elected to local office extends to the San Luis Coastal Unified School District, which has voluntarily chosen to implement district elections. The tables on the next page present these data (there were not elections in some years as a result of insufficient candidates): 101 I. San Luis Coastal Unified School District Board of Education Elections Since 2000, Total and Elected Candidates Year Total Cand.s Elected Cand.s Protected Elected Class Pro. Class 2000 9 3 0 0 2002 3 2 0 0 2004 5 3 0 0 2006 4 2 1 0 2008 4 2 1 1 2010 3 2 0 0 2018 4 2 1 0 Total: 32 16 3(9.4%) 1 (6.3%) J. San Luis Coastal Unified School District Board of Education Elections Since 2000, Total and Protected Class Candidate Votes Year Total Votes Protected Class Percentage 2000 72,945 -- -- 2002 31,448 -- -- 2004 76,604 -- -- 2006 34,263 5,116 14.9 2008 45,310 12,465 27.5 2010 39,606 -- -- 2018 56,001 9,212 16.4 Total: 356,177 26,793 7.5 In addition, the analysis here extends only to the year 2000. Research indicates that if this analysis were continued to the 1980s, incorporating state and local ballot measures and state and local candidates for office, it would be 19 possible to demonstrate 40 or more instances of racially polarized voting in the City of San Luis Obispo since this time. Pursuant to the CVRA, as previously cited: "A violation of Section 14027 is established if it is shown 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" (Sec. 14028(a), emphasis added). The underlined passage was specifically incorporated into the CVRA to provide for challenges to government jurisdictions in which few members of a protected class had run for its elected board. Pursuant to the California Voting Rights Act, district elections must be instituted in the City of San Luis Obispo. As a result of concerns about compliance with the California Voting Rights Act, a number of government jurisdictions in San Luis Obispo County have instituted district elections in recent years. Government jurisdictions in San Luis Obispo county with district elections include: K. Government Jurisdictions in SLO County with District Elections SLO County Board of Supervisors SLO County Board of Education SLO County Community College District City of Paso Robles City of Grover Beach City of Arroyo Grande Paso Robles Joint Unified School District San Luis Coastal Unified School District In Santa Barbara county, the Cities of Santa Maria, Lompoc, Buellton, Goleta, Santa Barbara, and Carpinteria have all instituted district elections in recent years as a result of California Voting Rights Act issues. 20 The California Voting Rights Act also states: "Other factors such as ... 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, ... are probative, but not necessary factors to establish a violation" (Sec. 14028(e)). As well as the examples of abridgment of voting rights, racially polarized voting, vote dilution, and differential voting previously outlined, there is ample evidence of the extent to which members of protected classes in the City of San Luis Obispo bear the effects of past discrimination in areas such as education, employment, and health. The following table presents comparisons between the white and Latino populations in the City of San Luis Obispo on socioeconomic characteristics pertaining to education, employment, and health in the 2017 United States Census Bureau American Community Survey estimate: L. Comparison by Ethnicity in City of San Luis Obispo On Socioeconomic Characteristics, 2017 White Latino Education Adults with high school degree 97.4% 73.0% Adults with bachelor's degree 53.1% 26.2% Employment Per capita income (in dollars) 33,469 17,930 Households receiving food stamps 3.6% 13.1% Health Individuals without health insurance 4.2% 16.0% 21 In addition, data from schools within the San Luis Coastal Unified School District reveal a gap between white and Latino student performance. The California Assessment of Student Performance and Progress (CAASPP) is the main state assessment system for students in California schools. The CAASPP provides educational performance measures in a variety of areas. The following tables present achievement for all students tested in the San Luis Obispo Unified School District in English Language Arts/Literacy and Mathematics, disaggregated by white and Latino students: M. San Luis Coastal Unified School District 2018 CAASPP English Language Arts/Literacy Achievement by Ethnicity Achievement Level White Latino 4 -- Exceeds Standard 44.20% 14.19% 3 -- Meets Standard 35.21% 30.307o 2 -- Nearly Meets Standard 13.18% 26.13% 1-- Standard Not Met 7.40% 29.38% N. San Luis Coastal Unified School District 2017 CAASPP Mathematics Achievement by Ethnicity Achievement Level White Latino 4 -- Exceeds Standard 44.85% 14.04% 3 -- Meets Standard 26.89% 24.81% 2 -- Nearly Meets Standard 18.35% 30.33% 1-- Standard Not Met 9.91% 30.83% Clear and compelling evidence exists that the City of San Luis Obispo's current, at -large method of election to its City Council is illegal. In the event this matter were to become the subject of litigation through a lawsuit being filed, it would be possible to establish dozens of examples of abridgment of protected class voting rights, racially polarized voting, vote dilution, differential voting, 22 and effects of past discrimination. It is inescapable the City of San Luis Obispo would be ordered by a court to implement district elections. A draft complaint against the City of San Luis Obispo for violation of the California Voting Rights Act --in the event litigation is required in this matter --is included here as Exhibit A and incorporated herein by this reference. 23 4. Methods of Instituting District Elections in the City of San Luis Obispo There are two methods by which district elections may be instituted in the City of San Luis Obispo: a) litigation, or b) a pre -litigation settlement agreement by the San Luis Obispo City Council outlining its intention to transition to single - member district elections, detailing specific steps it will take to facilitate this transition, and estimating the time -frame for this transition. If litigation is the path followed, a court action may --at any time after 45 days from the City of San Luis Obispo's receipt of the certified letter notifying it of a violation of the CVRA--be commenced in San Luis Obispo County Superior Court against the City of San Luis Obispo for violation of the California Voting Rights Act. If the San Luis Obispo City Council chooses a pre -litigation settlement, then, pursuant to Section 10010 of the California Elections Code, the process the City of San Luis Obispo must follow, as modified by the settlement agreement, is: 1) Within 45 days of receipt of the certified letter notifying the City of San Luis Obispo that its method of conducting elections may violate the CVRA, the San Luis Obispo City Council must adopt a resolution outlining its intention to transition from at -large to district elections, specifying specific steps it will take to facilitate this transition, and estimating the time -frame for this transition. 2) If the San Luis Obispo City Council passes a resolution to this effect, a legal action may not be commenced for another 90 days after the resolution's passage or until as specified in a settlement agreement. 3) Before district lines are drawn, the San Luis Obispo City Council must hold two public hearings at which the public is invited to provide input concerning the composition of districts. In advance of these hearings, the City of San Luis Obispo should conduct outreach to the public, including to non- English -speaking communities, explaining the districting process and encouraging participation. 24 4) Following these two public hearings, the City of San Luis Obispo must publish and make available for release at least one draft map and the proposed sequence of elections to new districts. The San Luis Obispo City Council must then hold two more public hearings at which the public is invited to provide input on the draft map or maps and proposed sequence of elections. 5) In determining the sequence of elections, the San Luis Obispo City Council must give special consideration to the purposes of the California Voting Rights Act. For this reason, it is likely that among the first districts in which district elections will be held will be districts including large proportions of individuals from protected classes. 6) After adopting the resolution of intention to transition from at -large to district elections and holding the public hearings, the San Luis Obispo City Council adopts a map of districts and a sequence of elections. If the City of San Luis Obispo establishes district elections according to the above process, as modified by a settlement agreement, no litigation is required. 25 5. Advantages of a Pre -Litigation Settlement There are many advantages of a pre -litigation settlement agreement rather than a court action to enforce the California Voting Rights Act to institute district elections. Most importantly, the City of San Luis Obispo and the San Luis Obispo City Council retain a greater role in and control over the transition process to district elections and legal costs are limited. A greater role by the San Luis Obispo City Council over the transition to district elections could manifest itself in a number of ways, including: 1) Pursuant to Assembly Bill 2220, passed into legislation in 2016, cities of any size may adopt a resolution to implement district elections, with or without an elective mayor. As a result of a court action, the San Luis Obispo City Council would lose the authority to determine the number of districts in the city (four or five) and whether or not there would continue to be an elective mayor. 2) Participation in timing of the first district elections, whether in 2020 or 2022. If this matter were to go to court, a court would probably require that the first district elections be held in 2020. As a result of a pre -litigation settlement agreement, the first district elections could be held in 2022. Elsewhere in California, settlement agreements have been reached to hold the first district elections in November 2022, following the 2020 census. These settlement agreements have allowed the affected government jurisdiction to commence district elections in 2022, rather than 2020, to save the costs in time and expense of redistricting in both 2020 (using 2010 census data) and in 2022. In addition, existing incumbents elected in 2016 would be eligible to run for reelection in 2020 under existing electoral arrangements under a settlement agreement to implement district elections starting in November 2022. 3) The San Luis Obispo City Council would retain the ability to draw the lines of City Council districts both now and in the future rather than the court drawing the lines of City Council districts through a court -determined process. 26 4) The existing City Council would be retained and there would be no chance of a special election. Occasionally in court actions brought pursuant to the CVRA, past at -large elections have been nullified and courts have ordered new, special elections to elect councilmembers from districts. 5) The existing elected, at -large Mayor would be retained. As a result of a court action, the City of San Luis Obispo could be required to implement five districts for its city council. 6) Saving of plaintiffs' attorney fees and its own legal expenses by the City of San Luis Obispo, potentially saving hundreds of thousands or more than a million dollars. The preceding are only some of the advantages of a pre -litigation settlement. It should be noted that pursuant to Assembly Bill 2220 passed in 2016, no vote of the people is required to institute district elections in the City of San Luis Obispo. A copy of Assembly Bill 2220 is included here as Exhibit C and incorporated herein by this reference. As an example from another city, a copy of the resolution and settlement agreement establishing district elections in the City of Carpinteria is included here as Exhibit H and incorporated herein by this reference. 27 G. Attorneys' Fees Pursuant to the CVRA: "In any action to enforce [the California Voting Rights Act] the court shall allow the prevailing plaintiff party ... a reasonable attorney's fee ... and litigation expenses including, but not limited to, expert witness fees and expenses as part of the costs" (Sec. 14030). In addition: "Prevailing defendant parties shall not recover any costs" (id.). In recent years, many jurisdictions have had to pay hundreds of thousands and even millions of dollars in attorneys' fees to prevailing plaintiff parties. Moreover, jurisdictions are responsible for their own legal costs, which can also be hundreds of thousands of dollars. The following table presents some settlements in California Voting Rights Act litigation: O. Settlements in CVRA Litigation (partial list) Iurisdiction Settlement City of Palmdale $4,500,000 City of Modesto $3,000,000 City of Anaheim $1,200,000 City of Whittier $1,000,000 Santa Clarita Community College Dist. $850,000 San Mateo County $650,000 Tulare Healthcare District $500,000 City of Escondido $385,000 City of Garden Grove $290,000 City of Bellflower $250,000 Madera School District $162,500 As a result of the potentially great costs of litigation, the California Voting Rights Project strongly recommends that government iurisdictions reach settlement in the statutory 45 -da pre -litigation stage. In this case, pursuant to Assembly Bill 350 signed into legislation in 2016, costs to government jurisdictions are capped at $30,000 plus annual CPI adjustment (now, $31,211).8 It should be emphasized that Assembly Bill 350 applies only to the pre -litigation phase of cases brought pursuant to the CVRA. If a CVRA action becomes the subject of litigation through a complaint being filed, then there is no cap on attorneys' fees and costs other than as stated in the CVRA. In addition, because Assembly Bill 350 would "impose additional duties on local agencies, the bill would impose a state -mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state ... This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for these costs shall be made pursuant to ... statutory provisions" (Legislative Counsel's Digest of Assembly Bill 350). Accordingly, it may be possible for the City of San Luis Obispo to obtain reimbursement from the state for a pre -litigation settlement. A copy of Assembly Bill 350 is included here as Exhibit D and incorporated herein by this reference. 29 7. Benefits of District Elections Even if the City of San Luis Obispo were not required to institute district elections pursuant to the California Voting Rights Act, there are many benefits of district elections which have been experienced in other communities. These include greater voter turn -out and participation. In some cities, turn -out in some precincts increased by as much as one-quarter after district elections were implemented. District elections bring government closer to the people. They result in representatives who are more knowledgable of local problems and issues. Candidates learn about their voting district when running for office. Voters have a member of the City Council to whom they can turn on issues, and councilmembers become more knowledgeable about area -specific concerns. There is a wider spectrum of views on the City Council and more representation from all neighborhoods and the entire community. District elections lead to greater neighborhood identity and have been accompanied by greater diversity of all sorts on elective bodies. District elections also result in less expensive political campaigns. It is easier for younger and lower socioeconomic candidates to run for office if they do not have to raise as much money. This results in less influence by special interests. By walking door to door and other inexpensive means, candidates can be elected who would not be elected in at -large elections. San Luis Obispo will be a better city with district elections --more representative of the people, and in compliance with the law. District elections will make elections to the City Council fairer and more inclusive, and will increase participation and representation. The universal experience with district elections in California is that cities and other government jurisdictions have found them to be a superior form of representation, irrespective of legal requirement. For further information on the likelihood of district elections being imposed by a court, see the February 21, 2017, Council Agenda Report in the City 30 of Santa Maria, included here as Exhibit F and incorporated herein by this reference. According to this report: "After much analysis and in-depth conversations with those most familiar with these types of litigation matters, staff is recommending that the City Council adopt a resolution declaring its intention to transition from at -large to district -based elections ... Staff makes this recommendation due to the extraordinary costs to successfully defend against a CVRA lawsuit and the fact that no apparent city has successfully prevailed against a CVRA lawsuit, and that the public interest would best be served by transitioning to a district -based election system."9 Because candidates for higher elective office are overwhelmingly elected first to local office, district elections lead in time to greater representation at all levels of government. In addition, as members of protected classes are elected to governing boards, there is a tendency for more members of protected classes to become employed by government jurisdictions, thereby increasing diversity at the staff level. Although its focus is the benefits of district elections to school districts, "The Politics of Latino Education: The Biases of At -Large Elections," by David Leal, Valerie Martinez-Ebers, and Kenneth Meier, published in the Journal of Politics, a publication of the Southern Political Science Association, contains much pertinent information. It is included here as Exhibit G and incorporated herein by this reference. 31 Conclusion Abridgment of voting rights and racially polarized voting have no place in the City of San Luis Obispo or anywhere else. Clear and compelling evidence of racially polarized voting, abridgment of voting rights, vote dilution, differential voting, and effects of past discrimination exists in the City of San Luis Obispo that would sustain a legal action brought against the City pursuant to the California Voting Rights Act to institute district elections. A pre -litigation settlement agreement by the San Luis Obispo City Council provides the best opportunity to implement district elections in a manner that retains participation by the City Council in the transition process to district elections and is cost- effective. 32 Endnotes 1 Cf. "CVRA Settlement Agreement / Resolution of Intention," Council Agenda Staff Report, City of Carpinteria (August 14, 2017): "The City Attorney's Office has surveyed the reported case law concerning litigation based on a violation of the CVRA. There is no reported case in which the defendant public agency has prevailed on the merits by proving that a violation of the CVRA did not occur" (p. 3). 2 Justin Levitt et al., "Quiet Revolution in California Local Government Gains Momentum" (Claremont McKenna College: Rose Institute of State and Local Government, November 3, 2016), p. 1. The Rose Institute remarks on the switch from at -large to district elections in California: "This quiet tectonic shift in local government is accelerating" (id.). 3 Id., p. 2. 4 Sanchez v. City of Modesto, Court of Appeal, Fifth District, California, No. F048277 (December 6, 2006). 5 Id. 6 Marguerite Mary Leoni and Christopher E. Skinnell, "The California Voting Rights Act," Public Law Journal (Vol. 32, No. 2, Spring 2009; Official Publication of the State Bar of California Public Law Section; included here as Exhibit E). Id. 8 Pursuant to Assembly Bill 350: "The amount of reimbursement required by this section is capped at $30,000, as adjusted annually to the Consumer Price Index for All Urban Consumers, U.S. city average, as published by the United States Department of Labor" (Section 1. 10010(f)(3)). In 2017, the increase in the Consumer Price Index for All Urban Consumers was 2.1% and in 2018 the increase was 1.9%, meaning the cap for reimbursement is now $31,211. 9 City of Santa Maria, "Council Agenda Report" (February 21, 2017; included here as Exhibit F). 33 Exhibits A. Draft Complaint Against the City of San Luis Obispo for Violation of the California Voting Rights Act B. California Voting Rights Act C. Assembly Bill 2220 D. Assembly Bill 350 E. Marguerite Mary Leoni and Christopher E. Skinnell, "The California Voting Rights Act," Public Law Journal (Spring 2009) E City of Santa Maria Council Agenda Report with Respect to Implementing District Elections G. David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier, "The Politics of Latino Education: The Biases of At -Large Elections," Journal of Politics (Nov. 2004) H. Resolution and Settlement Agreement Establishing District Elections in the City of Carpinteria 34 EXHIBIT "A" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I DRAFT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN LUIS OBISPO Complaint for Violation or the California Voting Rights Act of 2001 Against the Cily of San Luis Obis o 1 2 3 Plaintiffs, by and through their counsel of record, hereby bring this action against 4 defendant City of San Luis Obispo, California, and Does 1 through 25 (collectively 5 "Defendants" or "the defendants"). In support of their complaint, Plaintiffs allege as follows: 6 I. INTRODUCTION 1. This action is brought by Plaintiffs for injunctive relief against Defendants for their' 8 violation of the California Voting Rights Act of 2001, California Elections Code Sec.s 14025, et 9 10 seq. (the "CVRA). The imposition of the City of San Luis Obispo's at -large method of election 11 for its four City Council member positions has resulted in vote dilution for members of protected 12 classes and has denied them effective political participation in elections to these positions on the 13 City Council of the City of San Luis Obispo. The City of San Luis Obispo's at -large method of 14 election for electing members to its four City Council positions prevents members of protected 15 16 classes from electing candidates of their choice in San Luis Obispo City Council elections. 7 2. The effects of the City of San Luis Obispo's at -large method of election are 18 apparent and compelling. Pursuant to the 2017 United States Census Bureau American 19 Community Survey estimate, nonwhites comprise close to 30% of the population of San Luis 20 Obispo. Despite a significant population of members of protected classes who live in the City of 21 San Luis Obispo, there have been few members of protected classes who have run for or been 22 23 elected to a City Council position since the year 2000. Less than one-tenth of votes cast in City 24 Council elections since the year 2000 have been for members of protected classes. This 25 deficiency of members of protected classes who have been candidates for and been elected to 26 San Luis Obispo City Council member positions reveals the lack of access to the political 27 process. 28 2 1 3. The City of San Luis Obispo's at -large method of election violates the CVRA. 2 Plaintiffs bring this action to enjoin the City of San Luis Obispo's continued abridgment of the 3 4 voting rights of members of protected classes. Plaintiffs seek a declaration from this Court that 5 the at -large method of election currently employed by the City of San Luis Obispo violates the 6 CVRA. Plaintiffs seek injunctive relief enjoining the City of San Luis Obispo from further 7 imposing or applying its current at -large method of election. Further, Plaintiffs seek injunctive 8 relief requiring the City of San Luis Obispo to design and implement district -based elections to 9 10 remedy its violation of the CVRA. 11 II. THE PARTIES 12 4. At all material times, Plaintiffs are and have been registered voters residing in the 13 City of San Luis Obispo and are eligible to vote in the City of San Luis Obispo's elections. 14 5. At all material times, defendant City of San Luis Obispo, California, is and has 15 16 been a political subdivision of the State of California subject to the provisions of the CVRA. 17 6. Plaintiffs are unaware of the true names and capacities of the defendants sued 18 herein as Does 1 through 25, inclusive, and therefore sue these defendants by such fictitious 19 names. Plaintiffs will amend this complaint to allege the true names and capacities of these 20 defendants when their true names are ascertained. Plaintiffs are informed and believe, and on 21 that basis allege, that the acts and conduct alleged herein of each defendant was known to, 22 23 authorized by, and/or ratified by the other defendants. Does 1 through 25, inclusive, are 24 individuals or entities which have caused the City of San Luis Obispo to violate the CVRA, 25 failed to prevent the City of San Luis Obispo's violation of the CVRA, or are otherwise 26 responsible for the acts and omissions alleged herein. 27 28 3 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 26 27 28 7. Plaintiffs are informed and believe, and allege on that basis, that each defendant named herein, at all times mentioned in this complaint, was the agent, employee, partner, joint venturer, and/or employer of the other defendants and was at all times herein mentioned acting within the course and scope of that agency, employment, partnership, ownership, or joint I venture. III. JURISDICTION AND VENUE 8. All parties hereto are within the unlimited jurisdiction of this Court. The unlawful acts subject to this complaint occurred in San Luis Obispo County. 9. Venue is proper in this court because the City of San Luis Obispo is a public entity located within this county. IV. GENERAL ALLEGATIONS A. Political Background on the City of San Luis Obispo 10. Based on figures from the 2017 United States Census Bureau American Community Survey estimate, the City of San Luis Obispo has a population of whom approximately 72.3% are white, 17.1% are Latinos, 5.6% are Asians, 2.2% are African Americans, and multi or other races are 2.8%. 11. The City of San Luis Obispo is governed by a City Council. The San Luis Obispo City Council serves as the governmental body responsible for the operation of the City. There are four elected members of the City Council who are elected to four-year terms, and there is a Mayor who is elected to a two-year term. 12. The four City Council members of San Luis Obispo are elected pursuant to an at - large method of election. Under this method of election, all of the eligible voters of the entire City of San Luis Obispo elect all four of the City Council member positions. F1 1 13. Vacancies to the four City Council member positions are elected on a staggered 2 3 basis. Every two years, the electorate elects two City Council members who each serves a four - 4 year term. The Mayor is also elected at -large. 5 14. Members of protected classes have been only 10.7 percent of total candidates and 6 10.0 percent of elected candidates since the year 2000. Members of protected classes have received only 9.3 percent of all votes cast in City Council elections since 2000. 8 B. Racial Polarization's Impact on the City of San Luis Obispo 9 10 15. Elections held within the City of San Luis Obispo are characterized by racially 11 polarized voting, vote dilution, and differential voting. 12 16. Racially polarized voting, vote dilution, and differential voting occur when 13 members of a protected class --as defined by California Elections Code Sec. 14025(d) --vote for 14 candidates or other electoral choices that differ from the rest of the electorate. 15 16 17. Racially polarized voting and vote dilution exist within the City of San Luis 7 Obispo. There is a difference between the choice of candidates and other electoral choices that 18 are preferred by members of protected classes and the choice of candidates and other electoral 19 choices that are preferred by voters in the rest of the electorate. 20 18. Racially polarized voting and vote dilution consist of both voter cohesion on the 21 part of members of protected classes and voter cohesion by the non -protected class electorate 22 23 against the choices of voters from protected classes. 24 19. Patterns of racially polarized voting and vote dilution have the effect of impeding 25 opportunities for voters who are members of protected classes to elect candidates of their choice 26 to the four at -large City Council positions in the City of San Luis Obispo --the non -protected 27 class population dominates elections. 28 1 5 2 3 4 5 6 7 81 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. Voters from protected classes are harmed by racially polarized voting. 21. Since 2000, there are many examples of racially polarized voting, vote dilution, and differential voting in the City of San Luis Obispo on state and local ballot measures and in candidate elections, where voters from protected classes and other voters have differed in their electoral choices. State ballot measures which provide evidence of racially polarized voting and vote dilution include: 2000 --Proposition 20 (lottery --instructional materials); 2000 --Proposition 21 (juvenile crime); 2000 --Proposition 26 (majority vote for school bonds); 2002 --Proposition 37 (vote requirements for taxes); 2002 --Proposition 39 (55% vote for local school bonds); 2002 -- Proposition 49 (state educational grants); 2002 --Proposition 52 (election day voter registration); 2004 --Proposition 55 (state school bonds); 2004 --Proposition 72 (health care coverage); 2006 -- Proposition 1C (shelter funding); 2006 --Proposition 1D (educational facilities bonds); 2006 -- Proposition 82 (tax increase for preschools); 2008 --Proposition 3 (children's hospital); 2014 -- Proposition 45 (health care insurance); 2016 --Proposition 51 (state school bonds); 2016 -- Proposition 53 (revenue bond). At the local level, there is evidence of racially polarized voting, vote dilution, and differential voting in the San Luis Coastal Unified School District. C. impact of Polarization on Protected Class Communities 22. Members of protected classes in the City of San Luis Obispo bear the effects of past discrimination in areas such as education, employment, and health. Latinos, in particular, have graduated at a lower rate from high school and college than whites, have lower per capita income, have more households receiving food stamps, and have a higher percentage of individuals without health insurance. There are marked differences in the educational performance of white and Latino students in public schools serving the City of San Luis Obispo R 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23. The at -large method of election voting has caused the dilution of the votes of members of protected classes in the City of San Luis Obispo. Voters from protected classes and the rest of the electorate regularly express different preferences on candidates and other electoral choices, which has been to the detriment of voters from protected classes. 24. The obstacles posed by the City of San Luis Obispo's at -large method of election impairs the ability of voters from protected classes to elect candidates of their choice in elections held in the City of San Luis Obispo. 25. An alternative method of election exists, district -based elections, that will provide an opportunity for the members of a protected class as defined by the CVRA to elect candidates of their choice in City of San Luis Obispo elections. 26. All allegations made in this complaint are based upon information and belief, except those allegations which pertain to the named Plaintiffs, which are based on personal knowledge. The allegations of this complaint are stated on information and belief and are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. I V. CAUSES OF ACTION First Cause of Action (Violation of California Voting Rights Act of 2001) (Against All Defendants) 27. Plaintiffs hereby reallege and incorporate by reference each and every allegation stated in paragraphs 1 through 26 above as though set forth fully herein. 28. Plaintiffs are registered voters and reside within the City of San Luis Obispo. 29. Plaintiffs are members of a protected class of voters under the CVRA. 7 i - I 1 30. Plaintiffs are over the age of 18 and are eligible to vote in the City of San Luis 2 3 Obispo's elections. 4 31. The City of San Luis Obispo is a political subdivision within the State of 5 California. 6 32. The City of San Luis Obispo employs an at -large method of election, where voters 7 of its entire jurisdiction elect members to its City Council. 8 33. Racially polarized voting has occurred, and continues to occur, in elections in the 9 10 City of San Luis Obispo and in elections incorporating other electoral choices by voters in the 11 City of San Luis Obispo. As a result, the City of San Luis Obispo's at -large method of election 12 is imposed in a manner that impairs the ability of a protected class as defined by the CVRA to 13 elect candidates of its choice in City of San Luis Obispo elections. 14 34. An alternative method--district-based elections --exists that will provide an 15 16 opportunity for the members of a protected class as defined by the CVRA to elect candidates of 17 their choice in San Luis Obispo City Council elections. 18 35. An actual controversy has arisen and now exists between the parties relating to the 19 legal rights and duties of Plaintiffs and Defendants, for which Plaintiffs desire a declaration of 20 rights. 21 36. Defendants' wrongful conduct has caused and, unless enjoined by this Court, will 22 23 continue to cause, immediate and irreparable injury to Plaintiffs, and those similarly situated. 24 37. Plaintiffs, and those similarly situated, have no adequate remedy at law for the 25 injuries they currently suffer and will otherwise continue to suffer. 26 27 28 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as I follows: 1. For a decree that the City of San Luis Obispo's current at -large method of election for its four City Council member positions violates the California Voting Rights Act of 2001; 2. For preliminary and permanent injunctive relief enjoining the City of San Luis Obispo from imposing or applying its current at -large method of election for these positions; 3. For injunctive relief mandating the City of San Luis Obispo to design and implement district -based elections, as defined by the California Voting Rights of 2001, to remedy the City of San Luis Obispo's violation of the California Voting Rights Act of 2001; 4. For an award of Plaintiffs' attorney fees, costs, and prejudgment interest pursuant to the CVRA, California Elections Code Sec. 14030, and other applicable law; and 5. For such further relief as the Court deems just and proper. Dated: December 30, 2019 9 EXHIBIT "B" CALIFORNIA VOTING FIGHTS ACT ELECTIONS CODE SECTIONS 14025-14032 14025. This act shall be known and may be cited as the California Voting Rights Act of 2001. 14026. As used in this chapter: (a) "At -large method of election" means any of the following methods of electing members to the governing body of a political subdivision: (1) One in which the voters of the entire jurisdiction elect the members to the governing body. (2) One in which the candidates are required to reside within given areas of the jurisdiction and the voters of the entire jurisdiction elect the members to the governing body. (3) One that combines at -large elections with district - based elections. (b) "District -based elections" means a method of electing members to the governing body of a political subdivision in which the candidate must reside within an election district that is a divisible part of the political subdivision and is elected only by voters residing within that election district. (c) "Political subdivision" means a geographic area of representation created for the provision of government services, including, but not limited to, a general law city, general law county, charter city, charter county, charter city and county, school district, community college district, or other district organized pursuant to state law. (d) "Protected class" means a class of voters who are members of a race, color, or language minority group, as this class is referenced and defined in the federal Voting Rights Act of 1965 (52 U.S.C. Sec. 10301 et seq.). (e) "Racially polarized voting" means voting in which there is a difference, as defined in case law regarding enforcement of the federal Voting Rights Act of 1965 (52 U.S.C. Sec. 10301 et seq.), in the choice of candidates or other electoral choices that are preferred by voters in a protected class, and in the choice of candidates and electoral choices that are preferred by voters in the rest of the electorate. The methodologies for estimating group voting behavior as approved in applicable federal cases to enforce the federal Voting Rights Act of 1965 (52 U.S.C. Sec. 10301 et seq.) to establish racially polarized voting may be used for purposes of this section to prove that elections are characterized by racially polarized voting. 14027. An at -large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class, as defined pursuant to Section 14026. 14028. (a) A violation of Section 14027 is established if it is shown 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. Elections conducted prior to the filing of an action pursuant to Section 14027 and this section are more probative to establish the existence of racially polarized voting than elections conducted after the filing of the action. (b) The occurrence of racially polarized voting shall be determined from examining results of 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. One circumstance that may be considered in determining a violation of Section 14027 and this section is the extent to which candidates who are members of a protected class and who are preferred by voters of the protected class, as determined by an analysis of voting behavior, have been elected to the governing body of a political subdivision that is the subject of an action based on Section 14027 and this section. In multiseat at - large election districts, where the number of candidates who are members of a protected class is fewer than the number of seats available, the relative groupwide support received by candidates from members of a protected class shall be the basis for the racial polarization analysis. (c) The fact that members of a protected class are not geographically compact or concentrated may not preclude a finding of racially polarized voting, or a violation of Section 14027 and this section, but may be a factor in determining an appropriate remedy. (d) Proof of an intent on the part of the voters or elected officials to discriminate against a protected class is not required. (e) Other factors such as 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 are probative, but not necessary factors to establish a violation of Section 14027 and this section. 14029. Upon a finding of a violation of Section 14027 and Section 14028, the court shall implement appropriate remedies, including the imposition of district -based elections, that are tailored to remedy the violation. 14030. In any action to enforce Section 14027 and Section 14028, the court shall allow the prevailing plaintiff party, other than the state or political subdivision thereof, a reasonable attorney's fee consistent with the standards established in Serrano v. Priest (1977) 20 Cal.3d 25, 48-49, and litigation expenses including, but not limited to, expert witness fees and expenses as part of the costs. Prevailing defendant parties shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation. 14031. This chapter is enacted to implement the guarantees of Section 7 of Article I and of Section 2 of Article II of the California Constitution. 14032. Any voter who is a member of a protected class and who resides in a political subdivision where a violation of Sections 14027 and 14028 is alleged may file an action pursuant to those sections in the superior court of the county in which the political subdivision is located. EXHIBIT "C" - . LEGISLATIVE 1NTA70 Tv,,1 �F10v Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites ® ~ SHARE THIS: - AB -2220 Elections in cities: by or from district. (2015-2016) Assembly Bill No. 2220 CHAPTER 751 1 An act to amend Section 34886 of the Government Code, relating to elections. [ Approved by Governor September 28, 2016. Filed with Secretary of State September 28, 2016. ] LEGISLATIVE COUNSEL'S DIGEST AB 2220, Cooper. Elections in cities: by or from district. Existing law generally requires all elective city offices, including the members of a city council, to be filled at large by the city electorate at a general municipal election. Existing law, at any municipal election or special election held for this purpose, authorizes the legislative body of a city to submit to the registered voters an ordinance providing for the election of members of the legislative body by district or from district, as defined, and with or without an elective mayor. Existing law also authorizes the legislative body of a city with a population of fewer than 100,000 people to adopt an ordinance that requires the members of the legislative body to be elected by district or by district with an elective mayor without being required to submit the ordinance to the voters for approval. This bill would delete the population limitation in that provision, thereby authorizing the legislative body of a city to adopt an ordinance that requires the members of the legislative body to be elected by district or by district with an elective mayor without being required to submit the ordinance to the voters for approval. The bill also would make a conforming change to these provisions. Vote: majority Appropriation: no Fiscal Committee: no Local Program: no THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 34886 of the Government Code is amended to read: 34886. Notwithstanding Section 34871 or any other law, the legislative body of a city may adopt an ordinance that requires the members of the legislative body to be elected by district or by district with an elective mayor, as described in subdivisions (a) and (c) of Section 34871, without being required to submit the ordinance to the voters for approval. An ordinance adopted pursuant to this section shall include a declaration that the change in the method of electing members of the legislative body is being made in furtherance of the purposes of the California Voting Rights Act of 2001 (Chapter 1.5 (commencing with Section 14025) of Division 14 of the Elections Code). EXHIBIT "D" L E G A S L. i 1 L'T I N r O R M A T i 0 \V Home gill information California Law Publications Other Resources My Subscriptions My Favorites AB -350 District -based municipal elections: preapproval hearings. (2015-2015) I - I SHARE THIS: ' Assembly Bill No. 350 CHAPTER 737 An act to amend Section 10010 of the Elections Code, relating to elections. [ Approved by Governor September 28, 2016. Filed with Secretary of State September 28, 2016. ] LEGISLATIVE COUNSEL'S DIGEST AB 350, Alejo. District -based municipal elections: preapproval hearings. r Existing law provides for political subdivisions that encompass areas of representation within the state. With I respect to these areas, public officials are generally elected by all of the voters of the political subdivision (at large)or by districts formed within the political subdivision (district -based). Existing law requires a political j subdivision, as defined, that changes from an at -large method of election to a district -based election to hold at least 2 public hearings on a proposal to establish the district boundaries of the political subdivision before a ! public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal. V This bill would instead require a political subdivision, that changes to, or establishes, district -based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries, as specified. Existing law, the California Voting Rights Act of 2001 (CVRA), prohibits the use of an at -large method of election in a political subdivision if it would impair the ability of a protected class, as defined, to elect candidates of its choice or otherwise influence the outcome of an election. The CVRA provides that a voter who is a member of a protected class may bring an action in superior court to enforce its provisions. I This bill would require a prospective plaintiff under the CVRA to first send a written notice to the political subdivision against which the action would be brought indicating that the method of election used by the political subdivision may violate the CVRA. The bill would permit the political subdivision to take ameliorative �I steps to correct the alleged violation before the prospective plaintiff commences litigation, and it would stay the prospective plaintiff's ability to file suit for a prescribed amount of time. This bill would also permit a prospective plaintiff who sent a written notice, as described, to recover from the political subdivision reasonable costs incurred in supporting the written notice. Because the bill would impose additional duties on local agencies, this bill would impose a state -mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 10010 of the Elections Code is amended to read: 10010. (a) A political subdivision that changes from an at -large method of election to a district -based election, or that establishes district -based elections, shall do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat an ordinance establishing district -based elections: (1) Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision shall hold at least two public hearings over a period of no more than thirty days, at which the public is invited to provide input regarding the composition of the districts. Before these hearings, the political subdivision may conduct outreach to the public, including to non -English-speaking communities, to explain the districting process and to encourage public participation. (2) After all draft maps are drawn, the political subdivision shall publish and make available for release at least one draft map and, if members of the governing body of the political subdivision will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The political subdivision shall also hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections, if applicable. The first version of a draft map shall be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, it shall be published and made available to the public for at least seven days before being adopted. (b) In determining the final sequence of the district elections conducted in a political subdivision in which members of the governing body will be elected at different times to provide for staggered terms of office, the governing body shall give special consideration to the purposes of the California Voting Rights Act of 2001 (Chapter 1.5 (commencing with Section 14025) of Division 14 of this code), and it shall take into account the preferences expressed by members of the districts. (c) This section applies to, but is not limited to, a proposal that is required due to a court -imposed change from an at -large method of election to a district -based election. (d) For purposes of this section, the following terms have the following meanings: (1) "At -large method of election" has the same meaning as set forth in subdivision (a) of Section 14026. (2) "District -based election" has the same meaning as set forth in subdivision (b) of Section 14026. (3) "Political subdivision" has the same meaning as set forth in subdivision (c) of Section 14026. (e) (1) Before commencing an action to enforce Sections 14027 and 14028, a prospective plaintiff shall send by certified mail a written notice to the clerk of the political subdivision against which the action would be brought asserting that the political subdivision's method of conducting elections may violate the California Voting Rights Act. (2) A prospective plaintiff shall not commence an action to enforce Sections 14027 and 14028 within 45 days of the political subdivision's receipt of the written notice described in paragraph (1). (3) (A) Before receiving a written notice described in paragraph (1), or within 45 days of receipt of a notice, a political subdivision may pass a resolution outlining its intention to transition from at -large to district -based elections, specific steps it will undertake to facilitate this transition, and an estimated time frame for doing so. (B) If a political subdivision passes a resolution pursuant to subparagraph (A), a prospective plaintiff shall not commence an action to enforce Sections 14027 and 14028 within 90 days of the resolution's passage. (f) (1) If a political subdivision adopts an ordinance establishing district -based elections pursuant to subdivision (a), a prospective plaintiff who sent a written notice pursuant to subdivision (e) before the political subdivision passed its resolution of intention may, within 30 days of the ordinance's adoption, demand reimbursement for the cost of the work product generated to support the notice. A prospective plaintiff shall make the demand in writing and shall substantiate the demand with financial documentation, such as a detailed invoice for demography services. A political subdivision may request additional documentation if the provided documentation is insufficient to corroborate the claimed costs. A political subdivision shall reimburse a prospective plaintiff for reasonable costs claimed, or in an amount to which the parties mutually agree, within 45 days of receiving the written demand, except as provided in paragraph (2). In all cases, the amount of the reimbursement shall not exceed the cap described in paragraph (3). (2) If more than one prospective plaintiff is entitled to reimbursement, the political subdivision shall reimburse the prospective plaintiffs in the order in which they sent a written notice pursuant to paragraph (1) of subdivision (e), and the 45 -day time period described in paragraph (1) shall apply only to reimbursement of the first prospective plaintiff who sent a written notice. The cumulative amount of reimbursements to all prospective plaintiffs shall not exceed the cap described in paragraph (3). (3) The amount of reimbursement required by this section is capped at $30,000, as adjusted annually to the Consumer Price Index for All Urban Consumers, U.S. city average, as published by the United States Department of Labor. SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. EXHIBIT "E" THE CALIFORNIA VOTING RIGHTS ACT Marguerite Mary Leoni Christopher E. Skinnell In 2002, the California Voting Rights Act, S.B. 976, was signed into law. (Elec. Code §§ 14027-14032.) The Act makes fundamental changes to minority voting rights law in California. As of January 1, 2003, the California Voting Rights Act ("CVRA") alters established paradigms of proof and defenses under the federal Voting Rights Act, thus making it easier for plaintiffs in California to challenge allegedly discriminatory voting practices.' The potential consequences of this legislation are significant: it could force a city or special district to abandon an electoral system that may be perfectly legal under Ms. Leoni is a partner at Nielsen, Merksamer, Parrinello Mueller & Naylor, LLP (Mill Valley, California), Phone: (415) 389-6800, E-mail: mleoni(�umm<,ovlawxom. She specializes in legal counseling and civil litigation relating to redistricting and voting rights questions, school district reorganizations, campaign, government and initiative/referendum law. Her practice includes both trial and appellate practice. Ms. Leoni has represented and currently represents numerous state agencies, municipalities, counties, school districts and other special districts on districting, redistricting and electoral matters. She has assisted in all phases of such cases including design of plans, the public hearing process, analysis of proposed alternatives, enactment procedures, referenda, districting and redistricting, preparing and advocating preclearance submissions to the U. S. Department of Justice, and defending federal court litigation concerning the legality of electoral systems under the federal constitution and Voting Rights Act. She represented the Administrative Office of the Courts on federal Voting Rights Act issues and electoral questions pertaining to trial court unification in California. She also represented the Florida Senate in designing that state's Senate and Congressional districts, Voting Rights Act preclearance, and in defending against ensuing state and federal court challenges. She also represented the consultant to Arizona's Independent Redistricting Commission in designing redistricting plans for Arizona's state legislative and congressional districts. Mr. Skinnell is an associate (bar results pending) at Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP (Mill Valley, California), Phone: (415) 389-6800, E-mail: cskinnellLa:nniovlaw.c m. He received his Bachelor's degree in 1999 from Claremont McKenna College, magna cum laude, and is a 2003 graduate of the University of Chicago Law School, where he served as Editor -in -Chief of The University of Chicago Legal Forum. Prior to attending law school, he was a political consultant to several California legislative and initiative campaigns, a research associate at the Rose Institute of State and Local Government, and chairman of a successful initiative campaign in Southern California. Mr. Skinnell has extensive experience with voting rights matters, both from the legal and technical perspectives. In addition to working on various voting rights lawsuits, he has published numerous articles and studies on voting rights and redistricting, has served as the technical/GIS consultant on several municipal redistrictings, and has prepared a successful preclearance submission to the U.S. Department of Justice under Section 5 of the Voting Rights Act. I As noted in a celebratory press statement by the Mexican American Legal Defense and Education Fund (MALDEF) following the passage of S.B. 976, which along with the ACLU and voting rights attorney Joaquin Avila, was a primary supporter of the CVRA, the "[blill makes it easier for California minorities to challenge `at - large' elections." federal law, in the process exposing the jurisdiction to the possibility of paying very high awards of attorneys fees to plaintiffs .2 California's cities, counties, and special districts have had almost four decades of experience in complying with the federal Voting Rights Act ("federal VRA"), especially Section 2, the landmark legislation outlawing both intentional discrimination in voting practices and those practices that have unintentional but discriminatory effects when viewed in the totality of the circumstances. (Voting Rights Act of 1965, Pub. L. No. 89- 110, Stat. 437 (1965), codified as amended at 42 U.S.C. §§ 1971, 1973-1973ff-6 (1994).) Indeed, California has adopted compliance with Section 2 as one of its statutory redistricting criteria for cities, counties, and special districts. (See, e.g., Elec. Code §§ 21601 [general law cities], 21620 [charter cities], & 22000 [special districts].) After decades of litigation under the federal VRA, the courts have provided a wealth of guidance for cities and special districts in identifying practices that may have discriminatory effects. Most notable in California is the prevalence of the "at -large" electoral system (see description below). Jurisdictions have learned to consider changing to a district -based electoral system when they have minority group residents who are sufficiently numerous and geographically concentrated to form a majority in a single - member district, especially when that minority group, despite running candidates for election, consistently fails to elect. But now the voting rights legal environment with which cities and special districts have grown familiar has changed significantly. Here are some of the highlights. CVRA Highlights. * Focus of the CVRA: "At -large" and "From -district" Elections. If your city or special district elects its governing board members "by -district," (i.e., only by the voters of the district, sometimes called "division" or "area," in which the candidate resides), you can stop reading now. The CVRA does not apply to a by -district electoral system. However, if you have an "at -large" or "from -district" system, read on! The CVRA applies only to at -large and from -district electoral systems, or combination systems. (Elec. Code §§ 14026(a), 14027.) At -large systems are those in which each member of the governing board is elected by all the voters in the jurisdiction. Most z In federal voting rights cases, the litigation bill can run to hundreds of thousands of dollars even for a small jurisdiction of a few thousand people. See Florence Adams, Latinos and Local Representation: Changing Realities, Emerging Theories 73 (Garland 2000) (noting that in the City of Dinuba, California, the costs of federal voting rights litigation added up to nearly $60 per person, more than the annual cost of Dinuba's Fire Department). In a voting rights case filed against the City of Santa Paula in 2000 and recently settled, the City reportedly spent $700,000 for attorneys fees. See T.J. Sullivan, "Santa Paula Quiet on Measure D," Ventura County Star B-01 (Oct. 20, 2002). 2 jurisdictions in California, especially smaller jurisdictions, have at -large electoral systems. "From -district" elections differ from at -large systems only in that they require each member of the governing board to live within a particular district. Election, however, is still by all the voters in the jurisdiction, rather than being limited to the voters within a district. There are also combination systems in which, for example, a primary election may be conducted "by -district", but the general election is conducted "from" those same districts, e.g., the top two vote winners in the primary in each district run for election "at -large" in the general election. Each of these variations is equally vulnerable to challenge if the minority plaintiffs can show that racially -polarized voting undercuts their ability to elect or influence the election of minority -preferred candidates. Features that might cause plaintiffs to scrutinize a city or special district as a potential target for a CVRA challenge include a history of electoral losses by minority candidates or a history of unresolved issues disproportionately affecting the minority community (e.g., affordable housing, street and sidewalk maintenance, juvenile crime, etc.), coupled with a significant proportion of the population that are ethnic or racial minorities. ® Protection For Minority Electoral "Influence." The federal VRA prohibits the use of electoral systems that abridge the ability of minority voters to elect candidates of their choice. Thus, if the minority plaintiffs would have still been unable to elect their chosen candidates in the absence of the challenged at - large system, the plaintiff would have very little chance of stating a federal claim (see below). Not so under the CVRA. The CVRA invalidates not only at -large elections that prevent minority voters from electing their chosen candidates, but also those that impair the ability of minority voters to influence elections. To date, such influence claims have enjoyed very limited recognition or success in federal litigation, and California jurisdictions have no real experience with them. The U.S. Supreme Court has repeatedly declined to address influence claims in recent years. See Johnson v. De Grandy, 512 U.S. 997, 1008-09 (1994); Holder v. Hall, 512 U.S. 874, 900 n.8 (1994) (Thomas, J., concurring in judgment); Voinovich v. Quilter, 507 U.S. 146, 154 (1993); Growe v. Emison, 507 U.S. 25, 41 n.5 (1993). The federal courts in California have refused to sanction such influence suits as well. See Aldasoro v. Kennerson, 922 F.Supp. 339, 376 (S.D. Cal. 1995); DeBaca v. County of San Diego, 794 F.Supp. 990, 996-97 (S.D. Cal. 1992); Skorepa v. City of Chula Vista, 723 F. Supp. 1384, 1391-92 (S.D. Cal. 1989); Romero v. City of Pomona, 665 F. Supp. 853, 864 (C.D. Cal. 1987), aff'd 883 F.2d 1418, 1424 (9th Cir. 1989). 3 Indeed, only two federal courts have ever held that the federal VRA requires, rather than merely permits, the creation of influence districts in the absence of a showing of intentional discrimination, and both are of questionable precedential value. See Armour v. Ohio, 895 F.2d 1078 (6th Cir. 1990); East Jefferson Coalition for Leadership & Dev. v. Parish of Jefferson, 691 F.Supp. 991 (E.D. La. 1988). One of the opinions, Armour v. Ohio, was subsequently vacated when rehearing en banc was granted, 925 F.2d 987 (6th Cir. 1991). On remand the district court implicitly sanctioned such claims again, 775 F.Supp. 1044, 1059 n.19 (N.D. Ohio 1991), but later opinions from the Sixth Circuit have not treated Armour as binding on this; issue, and have, in fact, expressly rejected influence suits. See Cousin v. Sundquist, 145 F.3d 818, 828 (6th Cir. 1998) ("We do not feel that an `influence' claim is permitted under the Voting Rights Act."); Parker v. Ohio, 2003 U.S. Dist. LEXIS 8745, *11 (S.D. Ohio). The holding of the second case, East Jefferson Coalition for Leadership, was effectively undermined when the court subsequently amended the finding that necessitated the influence claim: that the minority community was too widely dispersed in the jurisdiction to constitute a majority in a single -member district. See East Jefferson Coalition for Leadership & Dev. v. Parish of Jefferson, 926 F.2d 487, 491 (5th Cir. 1991) (noting the amended finding that the minority group could indeed constitute a majority in a single -member district). Given the reluctance of federal courts to enter the political thicket of influence suits, by opening the door to such claims the CVRA greatly expands protection for minority voting rights and, consequently, the potential for liability of cities and special districts. The next question, of course, is obvious: what constitutes "influence"? The answer, unfortunately, is not so obvious. The CVRA does not define "influence" and there is very little federal precedent on which to rely for guidance. As the federal district court for Rhode Island put it in Metts v. Almond: "Ability to influence" itself, is a nebulous term that defies precise definition. If it means only the potential to alter the outcome of an election, it provides no standard at all because a single voter can be said to have that ability. On the other hand, if it means something more, there does not appear to be any workable definition of how much more is required and/or any meaningful way to determine whether the requirement has been satisfied. Several other courts have assumed as much, without so deciding, instead ruling on other grounds. See, e.g., Voinovich, 507 U.S. at 154; West v. Clinton, 786 F.Supp. 803, 806 (W.D. Ark. 1,992). a The district court in Armour purported to avoid the question of influence claims. See 775 F.Supp. at 1059 n.19 ("We need not reach the question of whether [an influence claim] may be viable under the Voting Rights Act because we find that the plaintiffs have met their burden of demonstrating an ability to eleci a candidate of their choice"). But as Judge Batchelder noted in dissent, the Court only avoided the issue by first holding that the plaintiffs need not constitute a majority in the reconfigured district. 775 F.Supp. at 1079 (Batchelder, J., dissenting). In so ruling, "the majority opinion effectively h[eld] that there is a cause of action under Section 2 when political boundaries are drawn so that they fail to maximize a minority group's ability to influence the outcome of elections." Id. 91 217 F.Supp.2d 252, 258 (D.R.I. 2002). Nevertheless, defining "influence" is the task that a California court may soon face. The definition may well be case -specific to the demographic and political circumstances in each defendant jurisdiction, leaving local jurisdictions without clear guidelines. e Streamlined Proof for Plaintiffs. Federal voting rights cases under Section 2 require that a successful plaintiff show that (1) the minority group be sufficiently large and geographically compact to form a majority of the eligible voters in a single -member district, (2) there is racially -polarized voting, and (3) there is white bloc voting sufficient usually to prevent minority voters from electing candidates of their choice. Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). If (and only if) all three of these "preconditions" are proven, the court then proceeds to consider whether, under the "totality of circumstances" the votes of minority voters are diluted. (42 U.S.C. § 1973(b) [prescribing the totality of the circumstances standard].) The CVRA, by contrast, purports to prescribe an extremely light burden on the plaintiff to establish a violation. Under the CVRA, plaintiffs apparently can prove a violation based solely on evidence of racially -polarized voting. (Elec. Code §§ 14027 & 14028(e).) Racially -polarized voting is defined as "voting in which there is a difference, as defined in case law regarding enforcement of the federal Voting Rights Act (42 U.S.C. Sec. 1973 et seq.), in the choice of candidates or other electoral choices that are preferred by voters in a protected class, and the electoral choices that are preferred by voters in the rest of the electorate." (Elec. Code § 14026(e).) See Ruiz v. City of Santa Maria, 160 F.3d 543, 552 (9th Cir. 1998) (adopting relatively lenient "separate electorates" test for determining whether a candidate was a minority -preferred candidate who was defeated by white bloc voting), cert. denied, 527 U.S. 1022 (1999). The CVRA appears to eliminate the first precondition that plaintiffs must prove at the liability stage in federal litigation, that is, that the minority group is sufficiently large and geographically compact to form a majority in a single member district. (Elec. Code § 14028(c).) Assuming that racially -polarized voting can be proven, the CVRA defers inquiry into the size and geographical compactness of the minority group and the impact of those factors on the minority voters' ability to elect or ability to influence elections, to the remedial phase of the litigation. (See discussion below.) The CVRA also eliminates the requirement that plaintiffs prove discrimination under the totality of the circumstances test. (Elec. Code § 14028(e).) This departure from the federal standards may prove to be the most significant. Some federal courts have been very lenient in finding racially -polarized voting. They could afford to be so lenient, 61 because, under federal law, establishing racially -polarized voting is not sufficient to prove a violation. The other Thornburg v. Gingles preconditions must be established and a violation must be proven in the "totality of the circumstances" phase of the lawsuit. The totality analysis then permits a federal judge to take into account such matters as the degree of the racially -polarized voting and perhaps find that it was not severe enough to warrant judicial intervention into the electoral processes of a city. The CVRA does not require any comparable "totality of the circumstances" analyses as part of the plaintiff's proof. Under what would seem to be a draconian application of the CVRA, plaintiffs could argue that a jurisdiction is subject to liability if 51% of minority voters vote one way, 51 % of non -minority voters vote the other way, and the minority - preferred candidate loses. Whether a court would sanction such an extreme application of the CVRA, without the subsequent safety valve of the totality analysis, cannot be known at this time. Another plausible reading of the CVRA is that the Legislature meant to ease the burden on plaintiffs but still permit the totality analysis to come in by way of defense. (Elec. Code § 14028(e) [stating that many of the traditional totality factors are "probative," but not necessary to establish a violation].) Despite the fact that Section 14028(a) provides that a violation is established if racially - polarized voting is shown, the legislation does identify at least one other factor that bears on the question of liability. Specifically the CVRA provides that the extent to which candidates who are members of a protected class and who are preferred by voters of the protected class have been elected to the governing body of a jurisdiction is "one circumstance that may be considered in determining a violation." (Elec. Code § 14028(b) [emphasis added].) Thus phrased, the relevance of such evidence would not appear to be limited to the remedial stage, but would affect the question of liability as well. Moreover, the phraseology suggests that other, unspecified circumstances may be considered on the question of liability as well. Under the federal scheme, minority plaintiffs whose preferred candidates have a winning record would find it difficult, if not impossible, to establish a violation of the federal VRA. Presumably this would be the result under the CVRA, but the new law is not explicit on that point. Also, the CVRA specifies that the successful candidate must also be a member of the minority group in order to be taken into consideration as "one circumstance" that may be considered at the liability phase of the litigation. The CVRA is silent on whether the election of non -minority persons who are proven to be the preferred candidates of minority voters can also be considered. Plaintiffs may well argue that such successful minority -preferred candidates do not count. * New Remedies. The most likely remedy in a successful CVRA action would be to order cities and special districts with at -large, from -district, or mixed electoral systems to change to by -district systems in which a minority group will be empowered either to elect its preferred candidates, or influence the election outcome. But judicial remedies under the Act may I not be limited to the imposition of a by -district system. In cases where the minority group may be too small to form a majority in a single member district (i.e., a district from which one member of the governing board is elected), the CVRA mandates that a court impose remedies "appropriate" to the violation. Indeed, the advocates of limited or cumulative voting systems may see the CVRA as an opportunity to attempt to impose such experimental remedies in California. In a limited voting system, voters either cast fewer votes than the number of seats, or political parties nominate fewer candidates than there are seats. Theoretically, the greater the difference between the number of seats and the number of votes, the greater the opportunities for minorities to elect their chosen candidates. Versions of limited voting are used in Washington, D.C., Philadelphia (PA), Hartford (CT) and many smaller jurisdictions. In a cumulative voting system, voters cast as many votes as there are seats. But unlike winner -take -all systems, voters are not limited to giving only one vote to a candidate. Instead voters can cast some or all of their votes for one or more candidates. Chilton County (AL), Alamogordo (NM), and Peoria (IL) all use a version of cumulative voting, as do a number of smaller jurisdictions. The State of Illinois used cumulative voting for state legislative elections from 1870 to 1980. i No -Risk Litigation For Plaintiffs. The CVRA mandates the award of costs, attorneys fees, and expert expenses to prevailing plaintiffs. (Elec. Code § 14030.) Prevailing defendants, however, are not treated so kindly. The CVRA denies not only attorneys fees but also the costs of litigation to prevailing defendants, unless the court finds a suit to be "frivolous, unreasonable, or without foundation," an extremely high standard. (Id.) Furthermore, California law interprets "prevailing party" more broadly than does the analogous federal law governing attorneys fees awards for actions brought under Section 2 of the Voting Rights Act. The United States Supreme Court has, as a matter of statutory interpretation, recently rejected the "catalyst" theory of prevailing parties. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Servs., 532 U.S. 598, 603-05 (2001). The catalyst theory, which the California Supreme Court has previously approved, permits recovery of attorneys fees if there is any "causal connection" between the plaintiffs' lawsuit and a change in behavior by the defendant. Maria P. v. Riles, 43 Cal.3d 1281, 1291 (1987). The Maria P. court continued: "`The appropriate benchmarks in determining which party prevailed are (a) the situation immediately prior to the commencement of suit, and (b) the situation today, and the role, if any, played by the litigation in effecting any changes between the two."' . . . An award of attorney fees under section 1021.5 is VA appropriate when a plaintiff's lawsuit "`was a catalyst motivating defendants to provide the primary relief soughs,"' or when plaintiff vindicates an important right "`by activating defendants to modify their behavior."" Id. at 1291-92 (quoting Folsom v. Butte County Assn. of Governments, 32 Ca1.3 d 668, 685 n.31 (1982); Westside Community for Independent Living, Inc. v. Obledo, 33 Cal -3d 348, 353 (1983)) (internal citations omitted). Federal law, by contrast, requires some "change [in] the legal relationship between [the plaintiff] and the defendant." Buckhannon, 532 U.S. at 604 (quoting Teas Slate Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792 (1987)). In other words, it is not enough under federal law that the defendant changed its conduct voluntarily—there must be some legally compelled impediment to the defendant falling back into the old ways, like a judgment or, a settlement. The California Supreme Court has traditionally treated federal precedent interpreting 42 U.S.C. § 1988 as persuasive authority, but it has also held that such federal precedent is not binding with regards to interpretation of state attorneys fee law. See Serrano v. Unruh, 32 Cal.3d 621, 639 n.29 (1982). Thus, the Buckhannon holding will not inevitably lead California to reject the catalyst theory in CVRA litigation as well. Charter Cities. Charter cities should not be complacent in a belief that they are immune from successful Challenge under the new CVRA. The CVRA, after all, purports to apply to "cities" without making any explicit distinction between general law or charter cities. (Elec. Code § 14026(c).) It is true that a charter can provide for a form of government or electoral process for a city that is different from the general law. A charter city, however, remains subject to the California Constitution and would be prohibited from adopting or maintaining a discriminatory electoral system or electoral practices that violate the equal protection clause or the right to vote. See Canaan v. Abdelnour, 40 Cal -3d 703 (1985), overruled on other grounds by Edelstein v. City & County of San Francisco, 29 Cal.4th 164, 183 (2002); Rees v. Layton, 6 Cal.App.3d 815 (1970). Furthermore, California courts have recognized that state statutes can override city charters if they are narrowly_ tailored to address an issue of statewide concern, even in the core areas of charter city control like election administration. Edelstein, 29 CalAth at 172-174; Johnson v. Bradley, 4 Cal.4th 389, 398-400 (1992). The CVRA expressly provides that it is intended to implement the guarantees of Section 7 of Article I (Equal Protection) and Section 2 of Article Il (Right to Vote) of the California Constitution, which are themselves regarded as matters of statewide concern. See Cawdrey v. City of Redondo Beach, 15 Cal.AppAth 1212, 1226. (1993). E:3 It is always possible that the California Supreme Court would decide that, even if preserving the right to vote is a matter of statewide concern, the CVRA sweeps too broadly and cuts too deeply into municipal affairs in violation of the principle of home rule. As the Supreme Court has noted, " Mhe sweep of the state's protective measures may be no broader than its interest." Johnson, 4 Cal -4th at 400. Cf Bd. of Trustees. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 355 (2000) (when Congress seeks to enforce constitutional protections with legislation, the statutory scheme must be congruent and proportional to the injury to be prevented or remedied); City of Boerne v. Flores, 521 U.S. 507 (1997). For example, charter cities could argue that, assuming eradicating the adverse effects of racially -polarized voting in at -large electoral systems is a matter of statewide concern, the CVRA is not narrowly -tailored because the federal VRA presents a scheme more carefully -crafted to weed out those at -large systems in which, under the totality of circumstances, minority voting rights are abridged, and leave in place those at - large systems in which a minority candidate may have simply lost an election. Vote of the People. The sole fact that the voters of a city or special district have enacted an at -large electoral system by ballot measure, or rejected a by -district electoral system by ballot measure, will not protect a jurisdiction. Indeed, the latter may increase the risk to the jurisdiction by serving as persuasive proof of a violation of the CVRA if the by -district system was rejected in an election characterized by a racially -polarized vote. No Minority Candidates. The fact that no members of the minority group have ever run for membership on the legislative body will not insulate a jurisdiction from CVRA challenge. The CVRA expressly provides that a violation can be shown if racially -polarized voting occurs in elections incorporating other electoral choices that affect the rights and privileges of members of a protected class, such as ballot measures. (Elec. Code §§ 14028(a) & (b).) Some particularly obvious examples from the last decade might include Proposition 187 (denying state services to undocumented immigrants), Proposition 209 (preventing state agencies from adopting affirmative action programs), and Proposition 227 (barring the use of bilingual education in California public schools). See Cano v. Davis, 211 F.Supp.2d 1208, 1241 n.37 (C.D. Cal. 2002) (assuming these initiatives may be used to demonstrate racially -polarized voting). But other local measures may also serve the same purpose. CONCLUSION California's cities and special districts are entering a new and uncertain era in voting rights law. Much about the CVRA is unclear and federal precedent on key issues appears to have been legislatively overruled. It may require years of litigation to sort it all out. It E is impossible to know now whether California courts will uphold the constitutionality of the CVRA, how they will interpret the new law, or what defenses will be available. Perhaps the "totality of the circumstances" test will be reinvigorated by way of defense. In the meantime, there is a safe harbor under the CVRA (though still not necessarily under the federal Voting Rights Act): a by -district electoral system. Jurisdictions with a history of electoral losses by candidates who are members of a minority group should consider analyzing those elections for racially -polarized voting. If polarized voting is detected, these jurisdictions may want to consider whether a change to a by -district electoral system is warranted. Demands by minority group representatives for a change to by -district elections must be taken seriously, even if the minority group is not numerous enough to form a majority in a new single member district. Changing voluntarily permits the elected representatives and the voters, rather than adverse plaintiffs or a court, to control the districting process and the considerations that will guide the districting. Once the single member districts are in place, the city or special district is in the CVRA safe harbor, even if the districts are not exactly those that plaintiffs would have preferred. SAces\drafts\0823.00 CVRA Article\THE CALIFORNIA VOTING RIGHTS ACT article [07-22-2003 rev].doc 10 EXHIBIT "F" FOR COUNCIL MEETING OF FEBRUARY 21, 2017 COUNCIL AGENDA REPORT TO: City Council FROM: City Manager and City Attorney SUBJECT: RESOLUTION DECLARING THE CITY OF SANTA MARIA'S INTENTION TO TRANSITION FROM AN AT -LARGE CITY COUNCIL ELECTED PROCESS TO A DISTRICT -BASED ELECTION PROCESS PURSUANT TO ELECTIONS CODE SECTION 10010 RECOMMENDATION: That the City Council adopt a resolution declaring its intention to transition from an at - large City Council election process to a district -based elections process, outlining specific steps it will take and providing an estimated timeline for doing so pursuant to Elections Code Section 10010. BACKGROUND: The City received a certified letter on December 16, 2016, from Jason Dominguez, Esq., on behalf of his client Hector Sanchez, an unsuccessful candidate for City Council in the November 2016 election, asserting that the City's at -large electoral system violates the California Voting Rights Act, codified at California Elections Code sections 14025-14032 ("CVRA"). Mr. Dominguez claims "polarized voting" may be occurring and threatens litigation if the City declines to adopt district -based elections. The CVRA was signed into law in 2002. The law was motivated, in part, by the lack of success by plaintiffs in California in lawsuits challenging at -large electoral systems brought under the Federal Voting Rights Act ("FVRA"). In fact, the City of Santa Maria had successfully defended a FVRA lawsuit in the early 1990's brought by the Mexican American Legal Defense and Education Fund. This litigation cost over $1 million to defend and took ten years to resolve in the City's favor. The passage of the CVRA made it much easier for plaintiffs to prevail in lawsuits against public entities that elected their members to its governing body through "at - large" elections with the ultimate goal to transition to "district -based" elections. By way of background, in a district -based election system, a candidate must live in the district he or she wishes to represent. It is staffs understanding that no such FVRA lawsuits have been filed in California since 2000. Accordingly, all voting rights lawsuits in California have been filed under the CVRA since its passage. Under the CVRA, to prove a violation, plaintiffs must only demonstrate that there is "racially polarized voting." This occurs when there is a difference between the choice of candidates preferred by voters in a protected class and the choice of candidates preferred by voters in the rest of the electorate. Plaintiffs in other litigation have taken the position that the CVRA does not require a showing of discriminatory intent or an actual electoral injury. They have further argued that the CVRA does not require proof that racially polarized voting actually resulted in the defeat of a group's preferred candidate. No appellate court has yet ruled on these issues. Cities throughout the State have increasingly been facing legal challenges to their "at - large" systems of electing City Council members. Almost all have settled claims out of court by essentially agreeing to voluntarily shift to district -based elections, while others have defended CVRA challenges through the courts. Ultimately, these cities have either voluntarily adopted, or have been forced to adopt, district -based elections. The exception is the City of Santa Clarita that resolved the CVRA action filed against it by agreeing to change the date of its general municipal election to November of even - numbered years. Cities that have attempted to defend their existing "at -large" system of City Council elections in court have incurred significant legal costs, including attorneys' fees incurred by plaintiffs. Awards in these cases have reportedly ranged from about $400,000 to over $3,500,000. When sued, the settlements entered into by cities typically have included paying the plaintiff's attorney fees. For example, in February 2015, the City of Santa Barbara reportedly paid $800,000 in attorneys' fees and expert costs to settle their CVRA lawsuit. Another example is the City of Palmdale that incurred expenses in excess of $4.5 million in its unsuccessful attempt to defend against a lawsuit brought under the CVRA. Moreover, what is most concerning is that staff is unaware of any city that has prevailed in defending its "at -large" system of election under a claim filed by any individual or group under the CVRA. Accordingly, staff has concluded that the public's best interest is in preserving and protecting vital general fund revenues from being unnecessarily expended (given the low probability of defending against a CVRA lawsuit) and that this interest outweighs the public's interest in maintaining the current at -large voting system. DISCUSSION: Accordingly, after much analysis and in-depth conservations with those most familiar with these types of litigation matters, staff is recommending that the City Council adopt a resolution declaring its intention to transition from at -large to district -based elections following the procedures required by Elections Code section 10010, as amended by AB 350, to establish voting districts. Staff makes this recommendation due to the extraordinary costs to successfully defend against a CVRA lawsuit and the fact that no apparent city has successfully prevailed against a CVRA lawsuit, and that the public interest would best be served by transitioning to a district -based electoral system. While the City has a sustained history of electing Latinos/as to the City Council, the outcome of litigation is always uncertain. Unlike other cities where at -large elections have prevented Latinos from electing candidates of their choice, the election history for the Santa Maria City Council has demonstrated that Latino candidates have been 2 regularly elected. Since 1996, at least one Latino/a has been elected to the City Council in each election except the November 2012 election where a Latina candidate (Waterfield) lost by only two votes. In all, ten Latinos/as have been elected to the City Council in the last twenty years. In addition, partly because of appointments made by the City Council to fill unexpired terms, the City Council has been represented by a Latino majority from 2002 until 2010 and the current City Council is a Latino elected majority. Not withstanding the aforementioned history of being able to elect Latinos to the City Council, the CVRA essentially makes any at -large election vulnerable to challenge with a low probability of successfully defending against such a challenge. Staff estimates that the cost to defend this lawsuit would exceed $1,000,000 even if it were successful, and would likely exceed $2,000,000 if the plaintiff prevailed and the City was ordered to pay plaintiffs attorneys' fees. These attorney fees and costs would be a General Fund liability which would be a significant unexpected expense that could not come at a worse time since the City already has a multi-million dollar structural budget deficit AND pension -related expenses continue to escalate. It should be noted that Government Code section 34886 permits the legislative body of any city to adopt an ordinance establishing election of members of the legislative- body by district. AB 350 was recently adopted by the State Legislature and becami effective on January 1, 2017, and amended Elections Code section 10010 to place a cap of a maximum of $30,000 on attorneys' fees that a plaintiff would be entitled to recover if the target city voluntarily adopted an ordinance to establish voting districts either before or after receiving notice of a CVRA violation. In addition, AB350 prohibits a plaintiff: from filing a CVRA lawsuit within 90 days of a city's adoption of a resolution declaring its intention to transition to district -based elections. Accordingly, should the City Council adopt the proposed resolution, the maximum the City will have to reimburse Mr. Dominguez in attorneys' fees and costs is $30,000, and plaintiff would be prohibited from filing a CVRA lawsuit until May 22, 2017. Alternatives: 1. The City Council may elect to place this issue on the ballot and let the electorate decide if they prefer district -based elections. However, even if the voters rejected district -based elections, the City would be vulnerable to a CVRA lawsuit if racially polarized voting is occurring in the City. 2. The City Council may direct staff to defend against any CVRA lawsuits that may be filed. This option will be very expensive to defend, and even if successful, would expose the City to an award of costly attorneys' fees. Fiscal Considerations: There will be significant staff time needed to transition to district -based elections because of the staff time that will be incurred for the five (5) public hearings that will be required in addition to the cost for a demographics and elections consultant and special legal counsel. Should the City Council concur with staff's recommendation, the City will only be required to reimburse plaintiff for its attorney's fees and costs up to $30,000. In addition, staff expects roughly a $10,000 increase in election costs for district -based 3 elections during each of the upcoming election cycles. These fiscal impacts are necessary and unavoidable if the Council transitions to district -based elections. Impact to the Community: The decision to change from at -large to district -based voting may have a substantial impact on the community since the City Council has been elected at -large since the City's incorporation in 1905. There may be a profound and noticeable impact to the community if the City adopts district -based elections and confusion until district -based elections are fully implemented in 2020. As proposed, two council seats will be elected by -district in the 2018 election and two or three council seats (pending the outcome of the five public hearings) in the 2020 election after the current incumbents have served their full terms. In some situations, the Mayor may be elected at -large, but all other members of the City Council must reside in the district they represent. The decision whether to establish four voting districts with the Mayor elected at -large, or five voting districts is one of the topics that will be decided upon by the City Council as a result of the minimum of five (5) public hearings that will be held as required by California Elections/Code,section 10010 should it adopt the proposed resolution. RIiRD .FHAYDON City Manager GILBE T . TRUJI City Attorney 1.2 EXHIBIT "G" The Politics of Latino Education: The Biases of At -Large Elections David L. Leal The University of Texas at Austin - Valerie Martinez-Ebers Texas Christian University -- Kenneth J. Meier Texas A&M University This paper investigates the determinants and consequences of Latino political representation in the field of K-12 education. The first task is to examine the association between Latino population and the Latino presence on school boards. We then investigate if Latino representation is affected by the electoral structure of school boards, as scholars have reached differing conclusions on whether at - large and ward systems hinder or enhance minority descriptive representation. The next step exam- ines the consequences of Latino representation, specifically whether board membership is associated with the share of Latino school administrators and teachers. The regression results show that Latino population positively affects Latino board representation, but that at -large systems hinder descriptive representation. The primary determinant of Latino administrators is Latino school board member- ship, and the primary determinant of Latino teachers is Latino administrators. In suin, at -large elec- tions negatively influence Latino educational representation, which produces a ripple effect that ultimately reduces the share of Latino teachers. Latinos are now the largest minority group in the United States, but numbers alone are no guarantee of political influence. The traditional view of how minori- ties gain access to the benefits of the U.S. political system is via education, but research has long established that access to education itself is inherently politi- cal. The Latino community has for many generations struggled for educational equity but has faced numerous structural and other impediments. We therefore investigate the political dynamics of Latino education in the field of K-12 edu- cation, a subject of major academic and policy consequence. This paper specifically will examine the politics of Latino representation on school boards and whether such descriptive representation has substantive effects. The first question is whether Latino population size is associated with the Latino presence on school boards. We then investigate if such representation is affected by the electoral structure of school boards because scholars disagree whether at - THE JOURNAL OF POLITICS, Vol. 66, No. 4, November 2004, Pp. 1224-1244 © 2004 Southern Political Science Association This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http:Uabout.jStOr.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1225 large and ward systems influence minority representation. Third, we test whether such descriptive representation influences the proportion of Latino administra- tors and teachers. Because the most recent prior research on these questions used data from the late 1980s, this paper provides needed evidence on how current conditions have changed given the dramatic growth in the Latino population. School board representation is an integral aspect of the political system. School boards in America are the most local electoral unit in the federal system. Almost 100,000 people serve on 15,000 boards, and they constitute the largest bloc of elected officials in America. Overseeing the education of forty-five million public school students, they are entrusted with annual school expenditures of approxi- mately three hundred billion dollars (Toch and Glastris 1994). Boards are involved in all aspects of school policy. They hire and fire super- intendents, set the curricula, decide spending priorities, and adopt reform plans. Although many decisions are in practice left to superintendents and other admin- istrators, school boards are tasked to oversee these experts (Wirt and Kirst 1989). Boards, therefore, shoulder much responsibility for the quality of public educa- tion in America. The question of Latino representation in school policymaking might be less urgent if Latino educational achievement were high, but this is far from the case. While education may be the best way to escape poverty and realize the Ameri- can dream, many Latinos find their hopes prematurely dashed through low edu- cational achievement. A report by the White House Initiative on Educational Excellence for Hispanic Americans (1999) documents how Latino under- achievement in education begins as early as kindergarten and continues through higher education. By the age of nine, Latino children perform below their non - Latino peers in the subjects of reading, mathematics, and science. Their overall scores on the National Assessment of Educational Progress (NAEP) are also con- sistently below average. One-third of Latino students between the ages of 15 and 17 are enrolled below grade level, and Latinos are less likely to take college preparatory courses in high school. The high Latino dropout rate is well known: 1998 data show a dropout rate of 30%, in comparison to 14% for African Americans and 8% for Anglos. Overall, Latinos perform lower than most groups on standardized tests, and they have the lowest high school graduation rates and four-year college enrollments of all racial and ethnic groups in the country (Riley and Pompa 1998; Secada et al. 1998). Latinos also attend schools that are increasingly segregated in terms of race, ethnicity, and class (Orfield and Yun 1999). They often face institutional racism and cultural biases at school in terms of programming, curriculum, and tracking and ability grouping practices (Carrasquillo 1994; Grossman 1995; Spring 2000). In sum, Latinos are arguably the most educationally disadvantaged of all groups in the United States today (Riley and Pompa 1998). Whether the dismal state of Latino education is related to political dynamics is a key question for political scientists to investigate. Meier and Stewart was one of the first investigations of this possibility. Using regression analysis and con - This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 LTTC All use subject to http://about.jstor.org/terms 1226 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier r trolling for intermediary factors, they discovered that Latino students were subject to more suspensions and expulsions, were underrepresented in gifted and talented classes, and were overrepresented in special education classes. Not only were such practices associated with lower student achievement, but they also served as "a substitute for segregation" (1991, 197). Meier and Stewart also discovered that such treatment was associated with community political power. Most importantly, Latino representation on school boards was associated with better educational conditions. In districts with more Latino representation, Latino students experienced greater access to equal edu- cation and less "second -generation" discrimination. There also appeared to be a ripple effect, whereby more Latino school board members led to more Latino school administrators, which in turn led to more Latino teachers. Others have found evidence that Latino representation on school boards is associated with policy outcomes of interest to this community. Leal and Hess (2000), for instance, found that the percentage of school board members who are Latino is positively associated with funding for bilingual education programs, even after controlling for objective student need for bilingual educa- tion. Board representation is, therefore, not just symbolic or of interest to a small number of activists but is inseparable from the aspirations of the larger community. The first empirical part of this paper investigates the relationship between _ Latino population and the Latino presence on school boards. The overall litera- ture on representation discusses two general linkages between constituents and representatives. The first is indirect representation, whereby a legislature may col- lectively represent the people even if there is no clear link between specific leg- islators ebislators and specific constituents (Weisberg 1978). Policy outcomes are therefore congruent with public opinion, even if elected officials are not actively trying to represent their constituents. The second form of representation is direct. This takes place when the votes of a legislator are linked to the interests of his or her constituents. Elected offi- cials in this scenario take seriously the delegate view of representation, as opposed to the trustee view exemplified by Edmund Burke in his famous letter to Bristol. Pitkin (1957) named this substantive representation and contrasted it with descriptive representation. The latter takes place when a constituency elects a representative who shares key traits but not necessarily policy views. This paper begins by examining the descriptive representation of Latinos on school boards. While descriptive representation does not always lead to substan- tive representation, voters generally see a connection. This is not to say that Anglo school board members cannot adequately represent Latina constituencies, as many have undoubtedly done so. In a similar way, a lawyer may be able to rep- resent. a district of farmers. Farmers, however, may want their elected represen- t tattives to share an agricultural background. Not only would the latter likely know more about farming, but they could be better trusted to fight for farm interests behind closed doors in Washington. This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://aboutjstor.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1227 This issue of trust is particularly important in the study of representation. Hall noted that many key legislative activities take place out of public view, such as "Building a coalition for a legislative package, drafting particular amendments, planning and executing parliamentary strategy, [and] bargaining with or per- suading colleagues to adopt one's point of view" (1996, 2). Constituents must trust that members are acting in a way that furthers their interests, as there are few ways for them to monitor such legislative behaviors. Bianco fiu-ther observed that "many kinds of behavior that are not usually thought of as rational choices, such as voters' desire to be represented by `someone like them,' are the product of a systematic, predictable calculus—more- over, a calculus aimed at securing favorable policy outcomes" (1994, ix). Voters therefore "focus on attributes because they cannot be the product of calculation and provide a clearer signal of a candidate's policy concerns" (62). In this way, descriptive representation is a shortcut voters use to increase the likelihood of their interests being served. Electing a member of one's group to office also has symbolic value. As David- son and Oleszek wrote, "When a member of an ethnic or racial minority goes to Congress, it is a badge of legitimacy for the entire grouping. Such legislators speak for people like them throughout the nation" (2000, 133). What is true for Congress at the national level is also true for school boards at the local level. :Prior studies of Latino representation in local political entities have docu- mented its low levels. Scholars usually derive a statistic of roup representation through the Engstrom and McDonald (1981) method, which regresses minority population on minority descriptive representation. Taebel (1978) found a Latino representation index of .44 for 60 large urban city councils, meaning an under- representation of 56%. Karnig and Welch (1979) found a similar city council ratio of .45 for 124 southwestern cities. Fraga, Meier, and England (1986) noted a ratio of .77 for 35 school districts in very large cities, and Meier and Stewart (1991) found it was .86 for a larger population of districts. The second part of this paper examines whether specific types of electoral mechanisms affect the level of Latino descriptive representation. Historically, such representation was impeded by a variety of legal and extralegal tactics. Lit- eracy tests, poll taxes, and simple intimidation were effective tools against the electoral participation of Latinos as well as African Americans and poor Anglos. These have largely passed from the political scene, but election laws originally adopted with discriminatory intent may still affect political representation. School board membership is chosen through three means: elections by ward, elections at -large, and by appointment. Progressive reformers at the turn of the twentieth century advocated at -large elections as one prong in a larger effort to isolate school boards and city councils from the influence of political parties, immigrants, those of lower socioeconomic status, and the vagaries of the demo- cratic process generally (Tyack 1974). This reform proved a substantial obstacle to minority communities, as minority candidates often lack the resources to launch district -wide campaigns and find it difficult to attract Anglo votes. This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms 1228 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier In recent decades, underrepresented minority groups used the Voting Rights Act of 1965 as "the legal foundation for creation of district -based elections to replace at -large elections to city councils and other multimember bodies" (Bezdek, Billeaux, and Huerta 2000, 209). The above authors described the example of Corpus Christi, where the efforts of the Mexican American Legal Defense and Education Fund (MALDEF) led to the replacement of eight at -large city council seats with five ward seats and three at -large seats.' Whether at -large elections have discriminatory effects on minority representa- tion is the subjectt of debate in the political science literature, and one with impor- tant practical ramifications. Some scholars have found that ward systems are positively associated with Latino representation on school boards (Davidson and Korbel 1981; Meier and Stewart 1991; Polinard, Wrinkle, and Longoria 1990, 1991.). Others, however, have discovered no statistically significant effects (Fraga, Meier, and England 1986; Welch and Karnig 1978). These varying findings are also present in different decades. Using data largely from the 1980s, Fraga, Meier, and England (1986) arrived at different conclu- sions than did Polinard, Wrinkle, and Longoria (1991) and Meier and Stewart (1991). Studies using data from the 1970s (Davidson and Korbel 1981; Welch and Karnig 1978) similarly arrived at opposite conclusions. In light of these dif- ferences across time, it is desirable to investigate representational dynamics with a contemporary survey. A new study is also needed because the Latino population is located in a very different social and political space than was the case in the 1970s and 1980s. The 2000 Census revealed how this group is expanding throughout the United States, and many educational jurisdictions that have historically educated few Latino children are now encountering significant and growing numbers of such students. The state with the fastest-growing Latina population, for instance, is not Texas or California but North Carolina. The Latino population of this state increased by just over 440% from 1990 to 2000, growing from 69,020 to 372,964 people. The next largest growth rates were found in Arkansas (337%), Georgia (324%), and Tennessee (284%). The issues of Latino representation on school boards and the quality of education received by Latino children are therefore relevant to a growing number of states and regions. Consequently, a study using current data is vital to understanding how Latino educational representation fares in this new and expanding context. The above dynamics are a larger and more noticeable continuation of previous trends. As Meier and Stewart noted, the school districts in their sample "have not had a stable enrollment composition over time. The average district increased its Hispanic enrollment by about ten percentage points since 1968 (Table 1-3). Some districts, of course, have become substantially Hispanic during this time period" 'Many school boards have incorporated both ward and at -large elections under the theory that minorities can benefit from coalition building and win some of the at -large seats. McDonald and Engstrom (1992), however, suggested that this did not transpire in practice. This content downloaded from 128.111.121.42 on Sur., 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1229 (1991, 31). They surveyed districts with at least 5,000 students, of whom at least 5% were Latino. Their total number of usable observations was 145; in compar- ison, our survey includes 857 such districts. Given these Latino population trends, additional studies might also be useful after each future census. There is also a contemporary interest in Latinos that was largely absent in pre- vious decades. Latino influence is now more strongly felt and more frequently commented upon in both politics and popular culture. This suggests that the role of Latinos in the contemporary political system may be qualitatively as well as quantitatively different than in previous decades. In addition, given the extensive litigation over city council districts in recent decades, school boards are also probably the last place where at -large districts are still permitted in the presence of racial polarization. For those interested in whether and how electoral structures affect the representation of minorities on political bodies, school boards are the only arena to study. This was much less the case in the 1970s and 1980s, so a new study of school boards is the best way to investigate whether and how electoral structure can influence representation. A related literature explores the impact of electoral systems on minority rep- resentation on city councils. Davidson and Korbel (1981) and Bezdek, Billeaux, and Huerta (2000) argued that ward districts increase Latino representation. On the other hand, Zax (1990) argued that residential segregation was a more impor- tant determinant than electoral method in the election of Latino officials. MacManus (1978) found that at -large plans did not impair the city council representation of African Americans and the Spanish speaking, although the details of the system and the socioeconomic environment were important. Taebel (1978) argued that city council size was more relevant for Latino representation than the electoral system. Rabinovitz and Hamilton (1980) suggested that a mixed system was better than a ward system for the representation of blacks on city councils. Some have argued that electoral systems affect the representation of African Americans but not Latinos. Karnig and Welch (1979) and Welch (1990) found this was the case for city councils. One explanation is that Latinos are not sub- jected to the same degree of residential segregation as African Americans (Lopez 1981). The third part of this paper investigates the consequences of descriptive rep- resentation, specifically whether the share of Latino board members is associated with the share of Latino school district. employees. Administrators and teachers influence the quality of education received by students, and teachers in particu- lar wield much power in their classrooms as "street level bureaucrats" (Lipsky 1980; on the substantive issue see Hess and Leal 1997 and Meier and Stewart 1991). There is widespread agreement in the professional education community that minority students gain academically when they are taught by minority teachers. Empirical evidence for these propositions is less common than their assertion, however, although a growing number of scholars are testing this hypothesis in a This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms r 1230 David L. Leal Valerie Martinez-Ebers, and Kenneth J. Meier variety of settings. Hess and Leal (1997) examined the relationship between teacher race/ethnicity and student achievement in large urban school districts. They found that the proportion of minority teachers was positively associated with the college matriculation of all students. While they noted that the hiring of minority teachers might serve as a proxy for unobserved school conditions rele- vant to student achievement, the article provides intriguing evidence that minor- ity teachers may promote the learning of both minority and Anglo students. Meier, Wrinkle, and Polinard (1999) and :Meier et al. (2001) tested how the percentage of minority teachers was associated with the studentt pass rates of stan- dardized exams required by the state of Texas. They found that pass rates were higher for both minority and Anglo students in districts with a larger share of minority teachers (although see Nielsen and Wolf 2001). Meier, Wrinkle, and Polinard (1999) suggested an explanation based on discriminatory hiring prac- tices. Districts less focused on the quality of educators than on their race will on average hire less competent teachers, thereby negatively affecting the educational outcomes of all students. Dee (2001) argued that this question needed a randomized experimental methodology to accurately understand whether racial dynamics were factors in student achievement. He examined test score data from the Tennessee Project STAR (Student Teacher Achievement Ratio) class -size experiment, finding sig- nificant math and reading improvements among students randomly provided same -race teachers. There are also a number of more qualitative studies of Latino student achievement that highlight the importance of Latino faculty and staff (Garcia 2001; Nieto 1999; Reyes, Scribner, and Scribner 1999; Valdes 1996). Substantial evidence also suggests that the Latino community wants more Latinos teaching their children (Nieto 1999; Romo and Falbo 1996). While the above debate asks whether minority teachers improve the educational outcomes of minority and Anglo children, this dynamic is less important from the per- spective of representation theory. Many scholars have investigated whether elected officials and political institutions are responsive to constituents, but there is less discussion of the more difficult question—whether constituent wishes are objectively in their best interests. The presence of minority teachers is, therefore, an important indicator of political responsiveness to minority communities regardless of its effect on -minority students. The only previous research on board representation and the minority presence in teaching faculties and educational administrations is Meier and Stewart (1991). They found the share of Latino school board members was positively associated with Latino administrators but not. with Latino teachers. They did find, however, a positive correlation between Latino administrators and Latino teachers. Data and Methods Data for this paper derive from three sources. Information on school board selection structures, school board ethnicity, administrator ethnicity, teacher eth- This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1231 nicity, and student ethnicity were obtained from an original survey. All school districts with more than 5,000 students were sent mail surveys in June 2001.2 Nonrespondents received two follow-ups by snail. Up to six phone calls were then placed to nonrespondents in an effort to contact as many of the districts as pos- sible; the phone interviews collected information only on the school board vari- ables. A final attempt was made via email. Of the 1,831 surveyed districts, 1,751 provided data on school boards (95.6%) and 1,532 (83.7%) on teachers and administrators. The actual numbers in the regression analysis are somewhat lower due to missing data for other variables. Nonrespondents on the electoral information were no different from respondents in terms of size of district, ethnic distribution in the district, and similar census data on which comparisons could be made. For the teacher and administrator data, district sizes were the same but nonrespondents were from locations with slightly smaller Latino populations. Given that the distinction between respondents and nonrespondents could not explain as much as I% of the variance in any variable where measures existed, we are confident that any selection biases in the survey are slight and do not affect the results presented.' _ Population figures and other demographic variables for 2000 were available from the 2000 census. Additional information used to check the accuracy of student enrollment figures on the survey were from the U.S. Department of Education (2001). Findings School Board Representation The first step in assessing the level of descriptive representation is to examine the simple relationship between Latino population and Latino school board rep- resentation (both variables are expressed as a percentage of the total) as suggested by Engstrom and McDonald (1981). This equation essentially predicts the expected value of representation for a given level of population. The first column of Table 1 presents this seats -population relationship for all districts. The level of explained variation is consistent with past models for school board representa- tion reported by Meier and Stewart [.60 (1991, 92)] and Fraga, Meier, and England [.77 (.1986)]. Both previous studies, however, excluded districts with 'Districts with more than 5,000 students were surveyed for two reasons. First, these districts educate the overwhelming majority of Latino students, as they are located in the areas with the largest Latino populations. Our school districts had a total Latino population in 2000 of 32.84 million, which is 93% of the 35.3 million Latinos in the overall population. Second, there are significant data col- lection problems in many of the smaller districts. They often do not keep the type of records that larger districts do, particularly in terms of EEO data, as it is the larger districts that are regularly sur- veyed by the EEOC. We also checked to see if the districts lost from the sample because of missing data were differ- ent from those included in the analysis. The only difference we can find is that the districts with missing data are slightly smaller than other districts, which is not a major concern. This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://aboutjstor.org/terms 1232 David L. Leal, Valerie Martine:,-Ebers, and Kenneth J. Meier TABLE 1 - The Representation Relationship: Latino School Boards Dependent variable = Percent Latinos on School Board All Minority Majority Five Percent + Variable Districts Districts Districts Latino Intercept -3.66 -1.36 -68.54 -8.97 - (13.05) (6.12) (7.54) (13.57) Population .71 .43 .72 .84 (57.48) (40.44) (13.50) (40.44) R -squared .66 .33 .64 .66 Standard error 9.54 6.89 19.20 12.72 F 3,304.37 793.62 182.14 1,635.55 w N of cases 1,739 1,633 106 857 Numbers in parentheses are t -scores. fewer than 5% Latino students; Fraga et al. also only included districts with more than 25,000 students. Two coefficients from the first regression in Table 1 merit discussion. First, the slope coefficient reveals that for each one percentage point increase in Latino population, Latino representation on the school board increases by .71 percent- age points.' In short, the translation of population into representation is only 71 % effective. This figure should not be interpreted by itself as the precise estimate of underrepresentation, however. The intercept (-3.66) is negative and significant, thereby indicating a threshold effect. At low levels of population, increases in Latino population have no influence on expected representation levels. Only after a threshold is breached does population predict a positive value for expected rep- resentation. That `threshold" can be estimated by using the regression equation to predict the level of population where estimated representation will be at least zero. In the present situation, the threshold is 5.2%. The findings in the first column suggest that the relationship between repre- sentation and population is not linear. The next two columns therefore show the same regression for districts where Latinos are a minority of the population and districts where they are a majority of the population. Previous arguments about electoral structure and representation presuppose the group in question, in this 'We use population as the base for all our regressions rather than voting -age population, estimated population who are citizens, or school enrollment for both an empirical reason and a normative reason. Empirically, the measures are highly correlated. The R2 between voting -age population and popula- tion is .9963, and between enrollment and population. it is .9631. Using other measures of popula- tion changes the size of the coefficients but has no impact on the statistical significance of any Y findings. The population numbers also predict representation better than any of the other three meas- ures. In normative terms, to paraphrase the Supreme Court, these electoral units were created to rep- resent populations, not citizens or school age children or even voting -age populations. This content downloaded from 128. 111. 12 1.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1233 case Latinos, constitutes a minority of the total population. After all, if Latinos have a voting majority, then they can use at -large elections in the same manner as Anglos do when there is an Anglo majority. The .71 coefficient for all districts drops to .43 in minority districts but jumps to .72 in majority districts. Comparing these figures directly is somewhatt mis- leading simply because the intercepts are so dramatically different. Majority dis- tricts, for example, have an expected representation value of 17.5% for districts that are 50% Latino but 100% for districts with 98% or more Latinos. Both sets of findings strongly suggest that nonlinear estimates of the expected value of rep- resentation should be examined. Before moving to the nonlinear estimates, the last column provides a compar- ison to the Meier and Stewart results by limiting the analysis to districts with at least 5% Latino population. Two things are immediately apparent. The represen- tation coefficient increases to .84, essentially the same as the .86 coefficient reported by Meier and Stewart (1991, 92). The difference in intercepts in the two analyses, however, suggests caution in comparing these two values. Table 2 estimates nonlinear equations linking population to representation. The differences between minority and majority jurisdictions are once again dramatic. In minority .Latino districts, the population -squared term is significant and adds additional explanation to the overall equation. In majority districts, the nonlinear terms induce massive collinearity so that neither coefficient is significant and the level of explained variation has not changed at all. These findings suggest that when Latinos are a minority of the population, the population -representation relationship is nonlinear, with larger percentages TABLE 2 The Nonlinear Population -Representation Relationship: Latino School Boards Dependent variable = Percent Latinos on School Board Variable Minority Districts Majority Districts Intercept —1.3619 .013.5 —68.54 —46.31 (6.12) (.05) (7.54) (.81) Population .4315 .0683 1.72 1.08 (28.17) (i.45) (13.50) (66) Population Squared .0096 .00 (17.33) (.39) Adjusted R -squared .33 .3.5 .64 .63 Standard error 6.89 6.76 19.20 19.20 F 793.62 445.75 182.14 90.41 N of cases 1,633 1,633 106 106 Numbers in parentheses are t -scores. Tolerances for nordinear equations, minority districts .10, majority districts, .0061. This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http:/,about.jstor.org/terms 1234 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier r- getting significantly more representation than smaller percentages. The insignif- icant intercept for minority districts also eliminates the problematic threshold effect of the linear estimation. The insignificant linear term in this model sug- gests umgests that it can be dropped from the analysis with no loss of information. The best interpretation for majority districts, however, is that the relationship between Latino population and Latino representation remains linear. The now traditional way to assess the bias of electoral systems is to run an interaction between the various selection plans and population within a single regression (Engstrom and McDonald 1981). As noted above, there are three major selection plans for school districts: at -large systems, ward systems, and appointed systems. For those districts with less than 50% Latinos, the current sample contains 985 pure at -large systems (where all board members are elected at -large), 443 pure ward systems, and 53 pure appointed systems. The remaining 163 systems contain mixed combinations of the three selection types. We created three variables for each district: the proportion of members elected from wards, the proportion elected at large, and the proportion appointed. Scores of 1.0 on any of these variables indicate a pure system, and lower scores indicate fewer members selected in the manner indicated by the variable. This process permits us to retain the 163 districts that do not have pure selection systems; the precise characteristics of these mixed systems are the subject of future research. To continue our distinction between majority and minority districts, these equa- tions are estimated for both sets of districts with the hypothesis that structure matters when Latinos are a minority but does not matter when they are a majority. Table 3 investigates this relationship for districts where Latinos are a minor- ity. Adjusting for the nonlinear population coefficient, the regression contains five variables: Latino population squared, the ward selection percentage, the appointed selection percentage, ward selection multiplied by Latino population squared, and appointed selection multiplied by Latino population squared. This - regression equation can then be used to derive representation estimates for each of the three pure systems. Because several of the variables reduce to zero when other systems are in place, three equations can be derived from the results in Table 3: At -Large Elections Representation =.5283+.0094 x Population Ward Elections Representation = —.1743+.0148 x Population Appointed Representation =.8701+.023 x Population Because the various intercepts are not different from the at -large intercept, they can basically be ignored in discussions. Suffice it to say that while the at -large intercept is significantly different from zero, its size is trivial (that is, at 0% Latino population, the expected value of representation is .5%). The larger size of the population -squared coefficient for ward elections shows that they generate higher This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http:/iabout.jstor.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1235 TABLE 3 The Detrimental Impact of At -Large Elections: Latino School Boards Dependent variable = Percent Latinos on School Board Variable Slope t tot. Slope t tot. Intercept .5283 2.25 - .5282 2.25 Latino Population Squared .0094 21.45 .70 .0094 21.53 .70 Ward System -_7026 1.77 .83 -.7054 1.78 .83 Ward x Population Squared .0054 6.17 .67 .0054 6.20 .67 Appointed System .3418 .33 .79 -1.2978 1.11 .63 Appointed x Population Squared .0136 5.91 .78 - - - Appointed x Population - .5112 6.21 .62 R -squared .38 .38 Standard error 6.61 6.60 F 201.41 202.60 N of cases 1,628 1,628 Analysis includes districts only with less than 50% Latino population. levels of Latino representation than at -large systems. Appointed systems gener- ate the largest levels of representation, as found previously by Meier and Stewart (1991). For instance, with a Latino district population of 5%, expected Latino representation is .8% in at -large systems, .2% in ward systems, and 1.4% in appointed systems. With a Latino population of 25%, the respective numbers increase to 6.4%, 9.1%, and 15.2%; at 45%, the figures are 19.6%, 29.9%, and 47.2%. The clear conclusion from Table 3 is that both electoral systems systematically underrepresent Latinos when they are a minority of the population, but at -large elections are significantly more detrimental to Latino representation than ward elections. It is unclear why some prior research found a lack of bias in at -large systems, but one possibility is that analyses that do not distinguish between majority and minority Latino districts may sometimes produce incorrect results. It is also possible that past research indicating differential ward and at -large effects was substantively correct but derived using incorrect models. Only a reanalysis of the data from previous projects would determine if this is the case. We might also investigate some additional dimensions of the school board rep- resentation process, as Table 3 incorporated only two types of independent vari- ables: population and selection plan. Such a regression overlooks the fact that Latinos are generally poorer, less well educated, less likely to own homes, and less likely to be citizens -all factors that affect voter turnout (Leighley 2001). Several demographic variables were therefore added to the equation in Table 3: percent of Latinos with college degrees, percent noncitizens, percent living in poverty, and median Latino family income. This new regression, which is not pre- sented because of space considerations, shows that only the percentage of Latinos r This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms 1236 David L. Leal, Valerie Martine:-Ebejs, and Kenneth J. Meier who were noncitizens added any statistically significant explanation to the equa- tion, and in that case the substantive impact was very small. To reduce Latino representation by 1.3 percentage points, fully one-half of all Latinos would need to not be citizens.' As noted above, the theoretical arguments about electoral structure and ethnic minorities assume that ethnic minorities are a numerical minority. When Latinos become a numerical majority, electoral structure should have little effect on rep- resentation because they can simply use majoritarian electoral systems, such as at -large elections, to their advantage. To determine whether or not majority status changes the relationship between structure and representation, we replicated our analysis with the 106 school districts with a Latino majority. The equations in Table 4 include both linear relationships for population (as found in Table 2) and nonlinear relationships for population for comparison purposes. Despite the substantial size of the coefficients for ward -based systems in both equations, none of the relationships are statistically significant. In short, when Latinos are a majority, there is no difference in the representational consequences of at -large elections compared to ward -based elections. This finding should be qualified somewhat based on two additional bits of evi- dence. First, the equations are marked by a high degree of collinearity, thus making statistical significance difficult to obtain; tolerance levels for the linear relationship are especially low. At the same time, a joint f -test comparing the equations in Table 4 with those in Table 2 shows that the four additional variables as a group do not add a statistically significant level of explanation (F -test for the nonlinear specification = 1.67 with 4, 100 df, p =.16; F -test for the linear spec- ification = 2.01, p =.10). Second, the appointive system relationships do appear to be somewhat different, with coefficients that approach or modestly exceed tra- ditional levels of statistical significance. Because the translation of descriptive representation into substantive representation has been called into question in the literature (Meier and Stewart 1991), we leave the precise meaning of the rela- tionships in appointive systems for future research. Administrative Representation Political representation on urban legislatures, be they city councils or school boards, has been linked to greater access to jobs for the represented group (Eisinger 1982; Mladenka 1989). Although there is some question as to whether the causal relationship runs from elected officials to employment or from employ- ment to elected officials (Meier and Smith 1994), we will assume, as does the overwhelming majority of the literature, that the process flows from the top down—that is, representation on school boards increases representation in admin - 'One reason why citizenship does not matter more than it does is that school district elections have very low turnout (often as little as 5% of registered voters). We also tried an interaction of the Latino population and the citizenship variable, but it was statistically insignificant. This content downloaded from 128.111-121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1237 TABLE 4 Selection Process Does Not Affect Latino Representation When Latinos Are a Majority Dependent variable = Percent Latinos on School Board Population Population Linear Squared Variable Slope t tol. Slope t toL Intercept -65.40 6.21 - -7.0380 1.25 ' Latino Population 1.68 11.33 .71 .0116 11.25 .71 Ward System -23.48 1.11 .04 -10.0413 .88 .15 Ward x Population .34 1.15 .04 .0020 .98 .14 Appointed System 106.94 1.84 .04 48.6729 1.45 .11 Appointed x Population -1.71 2.12 .04 -.0119 1.96 .11 R -squared .65 .64 Standard error 18.82 18.96 • " F 39.46 38.55 N of cases 106 106 Analysis includes districts only with more than 50% Latino population. istrative positions, and both in turn increase representation at the street level (in this paper, the teachers). The first equation in Table 5 shows the relationship of Latino school board rep- resentation and population with the percentage of Latino administrators for minority districts. Population can be interpreted as a labor pool characteristic. Administrators are hired from a pool of individuals, a percentage of which will be Latino. To control for variation in the composition of the labor pool, there- fore, the Latino population percentage is needed. In addition, the quality of this labor pool is affected by factors such as education levels, income, and even cit- izenship. Table 5 therefore controls for the Latino population percentage with college degrees, living in poverty, and who are not citizens. Even with these controls, Latino board members are positively associated with more Latino administrators; a one percentage point increase in Latino board members is associated with a .16 percentage point increase in Latino adminis- trators, ceteris paribus. The level of explained variation in Table 5 reveals that the hiring of Latino administrators is a far more predictable process than the elec- tion of school board members. 6 The relationships in this table may all be nonlinear. When squared terns are added for both vari- ables, all four slopes are positive and statistically significant. The level of explained variation increases by only three percentage points, however, and the literature does not contain any arguments about a nonlinear relationship. This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 LTTC All use subject to http:/'/ab,-)ut.jstor.org/terms 1238 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier TABLE 5 Latino Board Representation and Latino Administrators Dependent variable = Percent Latino Administrators R -squared .62 .76 Standard error 3.50 13.33 F 450.86 65.63 N of cases 1,371 101 Table 5 also demonstrates how much other factors affect administrative hiring. The major influence on the percentage of Latino administrators hired is the per- centage of Latino population, a percentage that reflects both the potential politi- cal clout of the Latino community as well as the potential pool of candidates for administrative positions. As expected, administrative representation increases with the percentage of college-educated Latinos. Even though citizenship is not a requirement for holding an administrative position in a school system, noncit- izenship likely correlates with other factors that disadvantage Latinos, so the neg- ative relationship is expected. The positive relationship between Latino poverty and administrative representation is likely a function of job opportunities. In com- munities with low poverty levels, well -paying jobs in the private sector are likely to attract many Latinos who might opt to be school administrators. High levels of poverty make safe, although lower paying, jobs in school systems more attrac- tive. Even though each of these three relationships is statistically significant, their substantive impacts are relatively minor. The second equation shows the same set of relationships for districts with a Latino majority. All relationships remain statistically significant although the size of the relationships, except for population, changes dramatically. The school board representation coefficient is now better than twice the size it was for minor- ity Latino districts. Such a relationship is consistent with the notion that Latino representatives will be less constrained in pursuing their own interests in Latino majority jurisdictions than in jurisdictions where they are a minority. The other labor pool factors also increase in importance, thus suggesting that majority dis- tricts might be pushing up againstt the constraints of the size of the qualified labor force. The important finding in this second equation, however, is that Latino rep - This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms Districts Districts Minority Majority Variable Slope t tol. Slope t tol. _ Intercept –.774 2.22 — –26.866 2.85 Latino Population .327 30.31 .59 .391 2.40 .31 School Board Representation .156 11.89 .68 .319 4.40 .33 Latino Non -Citizens –.026 3.97 .89 –.359 2.55 .74 Latino College Graduates .031 3.18 .68 1.619 3.76 .82 Latino Poverty 014 1.44 _82 1.040 5.69 .66 R -squared .62 .76 Standard error 3.50 13.33 F 450.86 65.63 N of cases 1,371 101 Table 5 also demonstrates how much other factors affect administrative hiring. The major influence on the percentage of Latino administrators hired is the per- centage of Latino population, a percentage that reflects both the potential politi- cal clout of the Latino community as well as the potential pool of candidates for administrative positions. As expected, administrative representation increases with the percentage of college-educated Latinos. Even though citizenship is not a requirement for holding an administrative position in a school system, noncit- izenship likely correlates with other factors that disadvantage Latinos, so the neg- ative relationship is expected. The positive relationship between Latino poverty and administrative representation is likely a function of job opportunities. In com- munities with low poverty levels, well -paying jobs in the private sector are likely to attract many Latinos who might opt to be school administrators. High levels of poverty make safe, although lower paying, jobs in school systems more attrac- tive. Even though each of these three relationships is statistically significant, their substantive impacts are relatively minor. The second equation shows the same set of relationships for districts with a Latino majority. All relationships remain statistically significant although the size of the relationships, except for population, changes dramatically. The school board representation coefficient is now better than twice the size it was for minor- ity Latino districts. Such a relationship is consistent with the notion that Latino representatives will be less constrained in pursuing their own interests in Latino majority jurisdictions than in jurisdictions where they are a minority. The other labor pool factors also increase in importance, thus suggesting that majority dis- tricts might be pushing up againstt the constraints of the size of the qualified labor force. The important finding in this second equation, however, is that Latino rep - This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1239 TABLE 6 The Determinants of Latino Teachers Dependent variable = Percent Latino Teachers Districts Districts Minority Majority Variable Slope t tol. Slope t tol. Intercept –.058 .28 — –32.268 7.16 — Latino Population .200 21.62 .36 .539 4.20 .30 School Board Representation .055 5.93 .62 --012 .19 .28 Latino Administrators .290 16.04 .38 .467 6.04 .24 Latino College Grads .013 2.06 .70 .890 2.54 .75 Latino Poverty –.005 .72 .83 .435 2.64 .50 R -squared .74 .82 Standard error 2.35 10.43 F 773.52 94.15 N of cases 1,365 102 resentation in majority districts differs from Latino representation in minority dis- tricts in significant ways. Teacher Representation Our final empirical analysis examines the determinants of Latino teachers. Well-developed models of teacher ethnicity in the literature suggest that labor pool characteristics (the size of the Latino population and the education levels of that population), Latino administrators, and Latino board members will be Sig- nificantly linked to teacher representation. The strongest determinant of Latino teachers, however, is likely to be the percentage of Latino administrators.' Table 6 reveals such a pattern. In Latino minority districts, a one percentage point increase in Latino administrators is associated with a .29 percentage point increase in Latino teachers, all other things being equal. Latino population also plays a role, but its impact is substantially less. Both Latino board representation and Latino college percentage have marginally significant relationships, but their direct substantive impact is small.' One potential question is what percentage of Latino teachers in the sample are bilingual educa- tion teachers. There are no national statistics on this question, but a separate Texas school data set indicates that less than 5° 0 of Latino teachers are bilingual education teachers. 'To more fully explain this result, one might ask whether (1) non -Latino administrators resist hiring Latino teachers, (2) Latino administrators make extra efforts to hire Latino teachers, or (3) Latino teachers prefer to work for schools with relatively large numbers of Latino administrators. We cannot be certain which of these dynamics is taking place, but for the purposes of our study, it does not make a large difference whether one, two, or even all three are at work. The regressions show that the pres- ence of Latino administrators leads to more Latino teachers, and it is beyond the scope of our paper to determine the relative importance of these three potential explanations. This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://aboutjstor.org/terms 1240 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier The relationships for Latino majority districts are even more clear cut. Latino population, Latino administrators, and labor force characteristics matter, but school board representation does not. A one percentage point increase in Latino administrators is associated with a .47 percentage point increase in Latino teach- ers, all other things being equal. The corresponding impact for Latino population is a .54 percentage point increase. The relative magnitude of the school board and administrators findings makes sense because administrators hire teachers and much of this process takes place in the schools rather than in front of the board. A number of researchers have indeed noted the indirect impact of school boards on many district decisions, as much power has devolved to administrators over time.' In Latino minority dis- tricts, the impact of school board members is very small; in Latino majority dis- tricts, the influence cannot be distinguished from zero. Board members may lack a direct way to influence the composition of these street level bureaucrats. If the causal sequencing is correct, however, Latino school board members have a sub- stantial indirect effect on teacher composition by affecting the ethnicity of school administrators." Conclusions This is the first paper in a national study designed to update and expand the findings of previous research regarding the political factors and policy practices that influence educational outcomes for Latino students. Multiple studies suggest greater minority representation in the educational policy process translates into more positive outcomes for minority students (Meier, Stewart, and England 1989; Reyes, Scribner, and Scribner 1999; Spring 2000). Meier and Stewart went further in their assessment of the importance of Latino representation when they identified it as the one contributing variable that can be manipulated or changed by "concerted political efforts and appropriate policy decisions" (1991, 210). In this report we focus on descriptive representation with the objective of improv- ing our ability to explain and predict the population -representation relationship. A contemporary study of this topic is useful for several reasons. First, research in the 1970s and the 1980s arrived at different conclusions about the influence of electoral structure on minority educational representation. Second, the Latino population is now located in a different social and political situation. The 2000 Census revealed how this group is expanding throughout the United States, and many educational jurisdictions that have historically educated few Latino chil- 9 See Tyack (1974) for a discussion of how the responsibility for teacher hiring changed over time. Other research further suggests that the impact of Latino board members on the hiring of Latino teachers is real although indirect (Wirt and Kirst 2001, 164). "One might ask whether any of the above relationships vary according to which Latino national - origin group comprises the majority of the district population. We were able to test this possibility by separately analyzing majorityMexican-American districts and majority Puerto Rican districts. The regression results derived from these subsamples were very similar to those derived from the overall sample. There were only two plurality Cuban -American districts, however, and there were no major- ity or plurality districts for other Latino national -origin groups. This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/terms The Politics of Latino Education: The Biases of At -Large Elections 1241 dren are now encountering significant and growing numbers of such students. A new and comprehensive national study is therefore important to understanding how Latino educational representation fares in this new and expanding context. Third, to advance the methodology of analysis, the paper tests for a nonlinear population effect, which was not conducted in the educational representation lit- erature. We also separately examine majority Latino population districts and minority Latino population districts, which was not done by previous research. Lastly, given the extensive litigation over city council districts, current school boards may represent the last opportunity to investigate whether and how elec- toral structures affect minority representation on political bodies in contempo- rary America. Overall, our findings highlight the complexity of the relationship between Latino populations and their representation on school boards. Looking strictly at levels of population and levels of representation on school boards, earlier studies found Latinos significantly underrepresented. Our analysis shows this trend con- tinues and appears to be growing. The presence of a threshold effect, however, suggests that a nonlinear specifi- cation may be appropriate. We also note that Latinos (like any group) may be able to profit from at -large districting when they are a majority of the population. We test a squared population term and divide the sample into majority and minor- ity Latino districts. The nonlinear Latino population variable is significant in the minority Latino districts and adds additional explanation to the overall equation. Both population variables are insignificant in the majority Latino districts and the model contains significant collinearity, however, thus suggesting that in these dis- tricts the relationship between Latino population and Latino representation remains linear. A key question in the literature is the ethnic bias of different selection plans. Our study supports the findings of earlier research showing minority population translating into minority school board seats at a substantially higher rate with ward elections than with at -large elections. Our findings show that at -large elec- tion systems usually disadvantage Latinos; the obvious policy recommendation is that at -large systems should be replaced by single -member systems. Interestingly, appointment systems appear more efficient than ward elections. We contend that the circumstances in appointment systems, however, are funda- mentally different from elections. These differences may produce higher repre- sentation but potentially change the impact of representation. Why? The attitudes and priorities of political appointees may more closely reflect those of community elites rather than the general population, or appointees simply may behave differ- ently than elected officials. Further study is clearly needed on the political context of appointment systems and its effect on appointee attitudes and behaviors. We also explored other population demographics that were hypothesized to influence the low level of Latino representation on school boards. Based on the- ories of participation and group power, we expected the political resources of the population—income, education, and citizenship --to play a role. We found that the low socioeconomic status of the Latino population has no effect on the rela- This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http://about.jstor.org/tenns 1242 David L. Leal, Valerie Martinez-Ebers, and Kenneth J. Meier tionship. The percentage of the population that is ineligible to vote (noncitizens) has a negative effect, not surprisingly, but the size of that impact is trivial. Finally, although our models predicting Latinos in lower positions of school authority basically mirror those previously reported, our analysis serves to emphasize the linkage between descriptive and substantive representation. While characteristics of the available labor pool play a role in predicting the presence of Latino administrators and teachers, they are overshadowed by the importance of having Latinos at higher levels of authority. Latino representation on school boards is significantly associated with increases in the percentage of Latino administrators, and the percentage of Latinos in administration is the most impor- tant variable determining the presence of Latino teachers. As we know the Latino community wants more Latinos teaching their children, greater Latino school board representation is therefore more likely to lead to education policies con- gruent with community wishes. Acknowledgment An earlier version of this paper was presented at the 2002 annual meeting of the Western Political Science Association, Long Beach, CA. We would like to thank Eric Gonzalez Juenke, Miner P. Marchbanks, IR, and Nick Theobald for assis- tance collecting the data and compiling the data set.. Financial support was pro- vided in part by the Cantu Hispanic Education and Opportunity Endowment and the Texas Educational Excellence Project at Texas A&M University. 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Valerie Martinez-Ebers is associate professor of political science, Texas Christian University, Fort Worth, TX 76129, (vmartinez@tcu.edu). Kenneth J. Meier is Charles Puryear Professor of Liberal Arts and professor of political science, Texas A&M University, College Station, TX 778434348, (kmeier@polisci.tamu.edu). This content downloaded from 128.111.121.42 on Sun, 08 Jul 2018 01:43:09 UTC All use subject to http:' about.jstor.org/terms EXHIBIT "H" RESOLUTION NO. 5743 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARPINTERIA, CALIFORNIA, DECLARING ITS INTENTION TO TRANSITION FROM AT -LARGE TO DISTRICT -BASED ELECTIONS BY NOVEMBER OF 2022 WHEREAS, members of the City Council of the City Carpinteria are currently elected in "at -large" elections, in which each councilmember is elected by the registered voters of the entire City; and WHEREAS, California Government Code section 34886 permits the legislative body of a city to change its method of election by ordinance from an "at -large" system to a "district -based" system in which each member of the legislative body is elected by the voters in the district in which the candidate resides; and WHEREAS, on July 3, 2017, the City received a letter entitled Notice of Violation of California Voting Rights Act ("Notice") from Jatzibe Sandoval and Frank Gonzalez ("Prospective Plaintiffs") asserting that the City's elections are characterized by racially polarized voting and demanding that the City commence the process to transition to district based elections pursuant to the California Voting Rights Act ("CVRA"); and WHEREAS, a violation of the CVRA is established if it is shown that racially polarized voting occurs in elections (Elections Code section 14028(a)). "Racially polarized voting" means voting in which there is a difference in the choice of candidates or other electoral choices that are preferred by voters in a protected class, and in the choice of candidates and electoral choices that are preferred by voters in the rest of the electorate (Elections Code section 14026(e)); and WHEREAS, the CVRA allows for Prospective Plaintiffs to file a lawsuit against the City if the City does not adopt a resolution of intent to institute district based elections within 45 days of the Notice ("45 -day period") (Elections Code section 10010); and WHEREAS, the Notice states that if the City declines to do adopt a resolution of intention to transition to district elections within the 45 -day period, Prospective Plaintiffs will commence a lawsuit to compel district based elections; and WHEREAS, August 17, 2017 is the 45th day from the date the City received the Notice; and WHEREAS, at its July 31 special meeting the City Council received public comment on the potential to transition to district elections and a majority of those commenting spoke in favor of instituting a district -based election system; and 15876382.1 WHEREAS, the Prospective Plaintiffs offered to consider a settlement agreement whereby the City would not be required to institute district elections until the November 2022 regular election in order to allow 2020 census data to be taken into account in drawing district boundaries; and WHEREAS, the City denies that its at -large election system violates the CVRA or any other provision of law and asserts that the City's election system is legal in all respects; and WHEREAS, the City Council has concluded that the public interest would be served by transitioning to a district -based electoral system due to public support for district elections, the extraordinary cost to defend against a CVRA lawsuit and the uncertainties inherent in litigating a CVRA claim. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CARPINTERIA AS FOLLOWS: SECTION 1. The above recitals are true and correct. SECTION 2. Before the November 2022 regular election, the City Council will consider adoption of an ordinance to institute a district -based election system, as authorized by Government Code section 34886. SECTION 3. Prior to considering an ordinance to establish district boundaries for a district - based electoral system, the City will follow the requirements pursuant to Elections Code section 10010 to solicit public input in the district map drawing process. PASSED, APPROVED, AND ADOPTED this 14th day August, 2017 by the following vote: AYES: COUNCILMEMBER(S): NOES: COUNCILMEMBER(S): ABSENT: COUNCILMEMBERS(S): ABSTAIN: COUNCILMEMBER(S): 15876382.1 CONDITIONAL SETTLEMENT AGREEMENT AND RELEASE This CONDITIONAL SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into on this 14th day of August, 2017 ("Effective Date") by and between the CITY OF CARPINTERIA, a general law city and municipal corporation ("City"), and JATZIBE SANDOVAL and FRANK GONZALEZ, residents of City ("Prospective Plaintiffs"). The above parties are referred to herein individually as "Party" and collectively as "Parties." RECITALS A. Since incorporation in 1965, the City Council has been elected through the at -large election system in which each voter may cast one vote for each Council seat that is up for election. B. On July 3, 2017, City received a Notice of Violation ("Notice") of the California Voting Rights Act ("Act") from Prospective Plaintiffs, alleging that the City's at -large system of electing City Council members violates the Act and threatening suit unless the City transitions to a district - based electoral system, which is an election method in which the candidate must reside within an election district that is a divisible part of the city and is elected only by voters residing within that election district. C. On July 31, 2017, the City Council held a public meeting to receive public input on the Notice and the potential for transitioning to a district -based election system. The majority of those commenting spoke in favor of instituting a district -based election system. D. The City Council denies that the City's at -large electoral system violates the Act. Nevertheless, in recognition of the public support voiced at the July 31 meeting for instituting district -based elections and in recognition that litigation involves significant costs and uncertainty, the City Council desires to enter into this Agreement. E. The Parties desire to delay the institution of district elections until 2022 so that the district boundaries may be drawn based on 2020 census data, which will not become available until 2021. F. The Parties now wish conditionally to resolve and settle the Notice and all attendant and potential litigation arising therefrom. NOW, THEREFORE, inconsideration of the mutual covenants and agreements described below, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Settling Parties hereby agree: 1. Obliations of Parties A. At its regular meeting on August 14, 2017, the City Council will consider approval of a resolution of intent to institute a district -based election system for City Council seats by the November 2022 regular election.' The Council retains the discretion to determine ' The November 2022 regular election will occur on November 8, 2022. (Elec. Code § 1000(d).) whether to institute district -based elections for four City Council seats with the mayor elected at large or to institute district elections for all five Council seats with the mayor appointed by the Council. B. Provided that the City Council adopts the resolution described in subsection A, Prospective Plaintiffs shall not bring suit against the City prior to November 9, 2022 for any cause of action related to the City's electoral system, including, but not limited to, suit seeking the implementation of district -based elections or claims related to or arising from the Notice. C. Provided that the City Council adopts the resolution described in subsection A, within 30 days of such adoption, the City will remit a payment of $30,000 to Prospective Plaintiffs as reimbursement of its costs incurred for the work product to support the Notice in fulfillment of the requirement to reimburse prospective plaintiffs' reasonable costs pursuant to Elections Code section 10010(f). The check will be made payable to Prospective Plaintiffs' attorney -of -record Robert Goodman to his trust account Robert Goodman Trust Account. Pursuant to Elections Code section 10010(f)(1), Prospective Plaintiffs have made a demand for reimbursement and staff has substantiated that the documentation provided by Prospective Plaintiffs represents the demography and legal costs incurred by Prospective Plaintiffs supporting their Notice. 2. Condition Precedent Prospective Plaintiffs acknowledge, understand and agree that the City Council's passing of the resolution described in Section 1 is an express condition precedent to the consummation of this Agreement and the covenants, conditions and agreements contained herein. In the event that the resolution is not approved as set forth in Section 1, then this Agreement shall be null and void and shall be of no further force and effect. In such event, neither this Agreement, nor any of its terms or provisions, shall be admissible in any action or proceeding initiated by Prospective Plaintiffs for any purpose. Further, the Prospective Plaintiffs recognize and acknowledge that the City Council is under no obligation to pass the resolution and that the Council reserves its discretion and the full measure of its powers to evaluate the resolution in accordance with applicable procedures, standards and requirements. It is understood and agreed that this Agreement shall not be construed in any fashion as an advance determination and does not provide the Prospective Plaintiffs with any expectation as to the outcome of the City Council's decision on the resolution. The City Council's lack of approval or inaction on the resolution will not constitute a default of this Agreement, but instead will constitute a terminating event of this Agreement. 3. Admissibilfty of Agreement If the City does not institute district -based elections for City Council seats by the November 2022 regular election, this Agreement shall not be construed as an admission by the City that such failure to act is unreasonable or unlawful under the Elections Code. In addition, this 2 Agreement may not be introduced into or be admissible in any judicial proceeding other than a judicial proceeding to enforce the terms of this Agreement. 4. Release A. Subject to the performance of the Parties' obligations in this Agreement, the Parties hereby fully and finally waive, release, and permanently discharge each other (and their respective officers, employees, agents, representatives and attorneys) (the "Releasees"), from any and all past, present, or future matters, claims, demands, obligations, liens, actions or causes of action, suits in law or equity, or claims for damages or injuries, whether known or unknown, which they now own, hold or claim to have or at any time heretofore have owned, held or claimed to have held against each other by reason of any matter or thing alleged or referred to, or in any way connected with, arising out of or in any way relating to the Notice (collectively, the "Released Claims"). In connection with the release of the Released Claims, the Parties waive any and all rights that they may have under the provisions of section 1542 of the California Civil Code, which states as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. In the event that any waiver of the provisions of Section 1542 of the California Code provided for in this Agreement shall be judicially determined to be invalid, voidable or unenforceable, for any reason, such waiver to that extent shall be severable from the remaining provisions of this Agreement, and the invalidity, voidability or unenforceability of the waiver shall not affect the validity, effect, enforceability or interpretation of the remaining provisions of this Agreement. B. The Parties understand and acknowledge that the foregoing release extends to any claims or damages, without limitation, arising out of the Released Claims that may exist on the date of the execution of this Agreement, but which the Parties do not know to exist, which, if known, would have materially affected their decision to execute this Agreement, regardless of whether their lack of knowledge is a result of ignorance, oversight, error, negligence or any other cause. C. Each Party acknowledges and agrees that this Agreement is a compromise and settlement of their disputes and differences, and is not an admission of liability or wrongdoing by any Party. D. Except as provided in section I.C. of this Agreement, each of the Parties waives any and all claims for the recovery of any costs, expenses, or fees, including attorney fees, associated with the matters and claims released in this Agreement. 3 5. Representations and Warranties A. Prospective Plaintiffs hereby represent and warrant to the City, as of the Effective Date, as follows: i. They have not heretofore assigned or transferred, or purported to assign or transfer, to any parry not named herein any Released Claim, or any part or portion thereof. ii. To the best of their knowledge, there are no legal actions, suits or similar proceedings pending and served, or threatened in writing against the Prospective Plaintiffs that would adversely affect their ability to consummate the transactions contemplated in this Agreement. To the best of their knowledge, Prospective Plaintiffs are not aware of any existing claims nor of any facts that might give rise to any claims of any type or nature against the City, whether asserted or not, that have not been fully released and discharged by the release set forth in this Agreement. iii. Prospective Plaintiffs have freely entered into this Agreement and are not entering into this Agreement because of any duress, fear, or undue influence; this Agreement is being entered into in good faith. iv. Prospective Plaintiffs have made such investigation of the facts pertaining to this Agreement as they deem necessary. v. Prospective Plaintiffs have, prior to the execution of this Agreement, obtained the advice of independent legal counsel of their own selection regarding the substance of this Agreement and the claims released herein. B. In executing this Agreement, Prospective Plaintiffs acknowledge, represent, and warrant to the City that they have not relied upon any statement or representation of any City officer, agent, employee, representative, or attorney regarding any facts not expressly set forth within this Agreement. In entering into this Agreement, Prospective Plaintiffs assume the risk of any misrepresentations, concealment or mistake, whether or not they should subsequently discover or assert for any reason that any fact relied upon by them in entering into this Agreement was untrue, or that any fact was concealed from them, or that their understanding of the facts or of the law was incorrect or incomplete. C. The representations and warranties of each of the Parties set forth in this Section 4 and elsewhere in this Agreement will survive the execution and delivery of this Agreement and are a material part of the consideration to the City in entering into this Agreement. b. haterpretation A. The Parties have cooperated in the drafting and preparation of this Agreement and, in any construction or interpretation to be made of this Agreement, the same shall not be construed against any Party. This Agreement is the product of bargained for and arm's rd length negotiations between the Parties and their counsel. This Agreement is the joint product of the Parties. B. This Agreement is an integrated contract and sets forth the entire agreement between the Parties with respect to the subject matter contained herein. All agreements, covenants, representations and warranties, express or implied, oral or written, of the Parties with regard to such subject matter are contained in this Agreement. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made or relied on by either Party. C. This Agreement may not be changed, modified or amended except by written instrument specifying that it amends such agreement and signed by both Parties. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision whether or not similar, nor shall any waiver be deemed a continuing waiver; and no waiver shall be implied from delay or be binding unless executed in writing by the party making the waiver. D. All of the covenants, releases and other provisions herein contained in favor of the persons and entities released are made for the express benefit of each and all of the said persons and entities, each of which has the right to enforce such provisions. E. This Agreement shall be binding upon and inure to the benefit of each of the Parties, and their respective representatives, officers, employees, agents, heirs, devisees, successors and assigns. 7. Further Cooperation Each Party shall perform any further acts and execute and deliver any further documents that may be reasonably necessary or appropriate to carry out the provisions and intent of this Agreement. Except as expressly stated otherwise in this Agreement, actions required of the Parties or any of them will not be unreasonably withheld or delayed, and approval or disapproval will be given within the time set forth in this Agreement, or, if no time is given, within a reasonable time. Time will be of the essence of actions required of any of the Parties. 8. No Third Party Beneficiaries Nothing in this Agreement is intended to benefit any third party or create a third party beneficiary. This Agreement will not be enforceable by any person not a Party to this Agreement. 9. Enforced Delay (Force Maj eure) A. Performance by either Party shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, acts of terrorism, epidemic, quarantine, casualties, acts of God, litigation, governmental 5 i^ restrictions imposed or mandated by governmental entities, enactment of conflicting state or federal laws or regulations, or other similar circumstances beyond the reasonable control of the Parties and which substantially interferes with the ability of a Party to perform its obligations under this Agreement. B. An extension of time for any such cause (a "Force Majeure Delay") shall be for the • period of the � enforced delay and shall commence { to run from �+the time of{the con -u- iencement of the cause, if notice by the Party claiming su{�+h extension is sent to the other Party within thirty (30) days of knowledge of the commencement of the cause. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Delay unless and until the Party claiming such delay and interference delivers to r the other Party written notice describing the event, its cause, when and how such Party obtained knowledge, the date the event commenced; and the estimated delay resulting therefrom. Either Party claiming a Force Majeure Delay shall deliver such written notice within thirty (30) days after it obtains actual knowledge of the event. The time for performance will be extended for such period of time as the cause of such delay exists but in any event not longer than for such period of time. w l0. Governing Law; Venue This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to any otherwise applicable principles of conflicts of laws. Any action arising out of this Agreement must be commenced in the state courts of the State of California, County of Santa Barbara, and each party hereby consents to the jurisdiction of the above courts in any such action and to venue in the State of California, County of Santa Barbara, and agrees that such courts have personal jurisdiction over each of them. 11. Counterparts This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same instrument. 2