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Agenda Item 5.

City Council Special Meeting

Meeting Date:	06/20/2019
FROM:	Bill Gallardo

Subject:

Resolution declaring the intent to transition from at-large elections for City Council to district-based elections pursuant to Elections Code Section 10010 after receipt of the 2020 Census results.

RECOMMENDATION

Adopt Resolution No. 2019-049, a Resolution declaring the intent to transition from at-large elections for City Council to district-based elections pursuant to Elections Code Section 10010 after receipt of the 2020 Census results.

BACKGROUND/DISCUSSION

The City of Brea currently elects its City councilmembers through an “at-large” election system in which each councilmember can reside anywhere in the City and is elected by the voters of the entire City to provide citywide representation.

A district-based election system is one in which the City is physically divided into separate districts each with one councilmember who resides in the district and is chosen by the electors residing in that particular district.

The California Voting Rights Act of 2001 (“CVRA”) provides a private right of action to members of a protected class where, because of “dilution or the abridgment of the rights of voters,” an at-large election system “impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.” The CVRA defines a “protected class” broadly as a class of voters who are members of a race, color, or language minority group.

To establish a violation under the CVRA, a plaintiff must show that racially polarized voting occurs in an at-large election system, impairing the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.

The CVRA is based in part on the Federal Voting Rights Act of 1965 (“FVRA”) but is intended to expand the protections of the FVRA by making it easier for potential plaintiffs to successfully claim a violation of their voting rights. For example, the CVRA eliminates the requirement applied in FVRA cases of showing that a protected class can form a majority of one of the districts.

As a result of the lower threshold established by the CVRA, cities and other jurisdictions throughout the State of California have been facing challenges to their at-large election system. Many of these jurisdictions have voluntarily switched to district-based elections instead of facing litigation. None of the jurisdictions that have defended CVRA actions have prevailed on the merits. The CVRA contains an attorney’s fees provision that entitles a prevailing plaintiff to an award of its reasonable attorney’s fees and litigation expenses, including expert witness fees and costs. By contrast, a prevailing defendant jurisdiction is not entitled to recover any costs, unless the court finds the action to be frivolous.

On May 6, 2019, the City received a demand letter from the law firm of Shenkman & Hughes, PC (“Shenkman Firm”) alleging that the City’s at-large election system violates the CVRA and demanding that the City change its election system or face litigation. On June 18, 2019, the City and the Shenkman Firm executed an Extension Agreement to enable the City to avoid duplicative costs and efforts of establishing district boundaries and then adjusting such boundaries in less than two years upon receiving the results of the 2020 Census.

The Extension Agreement will be implemented in accordance with Elections Code Section 10010 and has three key terms. First, by June 20, 2019, the City must consider adopting a resolution of intent to transition to district-based elections pursuant to Elections Code Section 10010. Second, the Extension Agreement allows the City to begin the 90-day process for changing to district-based elections once the 2020 Census results have been received. Finally, the Extension Agreement requires the City to reimburse the Shenkman Firm for the cost of the work product generated to support the demand letter, subject to the $30,000 statutory limit.

FISCAL IMPACT/SUMMARY

There is no direct fiscal impact on the General Fund associated adoption of the proposed resolution. Once the 2020 Census results have been received, there will be significant staff time needed to transition to district-based elections and to administer the process including the need for at least four public hearings. The City will also incur the costs of a professional demographer and other potential consultants. Finally, if a claim for attorneys’ fees is made by the Shenkman Firm, the maximum potential liability for the City is $30,000.

RESPECTFULLY SUBMITTED:

William Gallardo, City Manager
Prepared by: Terence Boga, City Attorney

Attachments
Resolution
Letter from Shenkman & Hughes, PC received on May 6, 2019
Extension Agreement