In a 5-2 vote at its Sept. 26 meeting, with Sudhanshu Jain and Christine Koltermann dissenting, the 2019 Charter Review Committee voted to put a measure on the March 2020 ballot for a three district, two members per district system for electing the Santa Clara City Council.
This committee — the fourth such committee since 2011 — was formed after voters approved City Council–proposed Measure N in 2018 asking if they wanted “to form a charter review committee to engage the voters in a public process to draft a Charter Amendment ballot measure to elect its Council Members, other than the Mayor, by district.”
Measure N followed the Superior Court ruling that the City violated the California Voting Rights Act (CVRA) and a court order to institute single-member by-district elections — these districts were used in the 2018 City Council election.
The three-district proposal that will be on the ballot appears to be in direct opposition to the expressed wishes of voters, according to the City’s online survey of residents.
An overwhelming majority of the 238 respondents to the survey (66 percent, 149) said that the City should keep the current six single-member district system (Question 2).
Only 23 percent (55) said that the City should adopt a three-district/two-member system (Question 3).
A mere 9 percent (21) said the City should adopt a two-district system. Ninety-five percent of respondents said that Council Members should live in the districts they represent.
The decision to put questions about two and three district systems on the survey was made by a three-member sub-committee, under the guidance of City Clerk Hosam Haggag. The Committee received no budget to hire a professional polling group or to do outreach and advertising.
Chair Suds Jain says he’s frustrated with the process. “I wanted to talk about ranked choice voting and was told that we couldn’t talk about that. But now they’re talking about three districts,” he said.
At this meeting, the question was raised — as it has been at every meeting — whether multi-member districts will shield the City from another CVRA lawsuit.
City Attorney Brian Doyle — incorrectly* — told the committee that the City could be sued under the CVRA even with single-member districts.
President of Californians for Election Reform, Steve Chessin — who is not an attorney — told the committee, “The CVRA doesn’t care about how many members are elected from a district,” and therefore any number of districts would protect Santa Clara from a lawsuit.
Committee Member Benjamin Cooley said that it was his understanding that if only one member in a district was elected at a time, that wouldn’t constitute an at-large election.
Chair Suds Jain asked about the legal ramifications of reducing the number of districts — something federal voting rights laws call “retrogression,” and which can recreate the discrimination — something the City’s demographer, Jean Gobalet, raised at a previous meeting.
“I asked to have this [retrogression] on the agenda and it wasn’t put on the agenda and I don’t know why,” said Jain.
“I didn’t hear anything about it,” said Doyle. “The [Santa Clara] case wasn’t under the federal voting rights law…and we could not have been found guilty under the federal Voting Rights Act,” he said. “Here we don’t have a [retrogression] argument because we didn’t draw a district that had a minority majority.”
The attorneys that brought the 2018 voting rights lawsuit are watching the City’s actions.
“If the initiative is in conflict with the court order we would ask for a ruling from the judge,” said noted civil rights attorney Robert Rubin, who is part of the plaintiffs’ legal team. “There might be some basis for a contempt proceeding.”
The 2018 lawsuit has cost the City nearly $1 million for its own legal bills, and the court awarded the plaintiffs $3.16 million to be paid by the City. The City continues its appeal, and the parties have asked for an expedited hearing, which is nonetheless unlikely before the end of the year. The ballot measure will cost $200,000.
“We remain confident that we will win the appeal,” said attorney Richard Konda of the Asian Law Alliance. “We hope the committee will reconsider input that was provided by 66 percent of residents and forward that recommendation to the City Council.”
City Hall Looking for End Run Around the Court?
The three-district system residents will vote on in March is a variation of June 2018 Measure A’s two-district/three seat proposal — which was trounced by voters. The measure was proposed in 2018 after Santa Clara was sued under the CVRA.
City Clerk Hosam Haggag was a member of that committee and played an active role in the Measure A campaign.
The proposal enjoyed significant financial backing from out of state interests, including a Texas dark money group, and was promoted by an eleventh hour push poll sponsored by the developer-funded Santa Clara Police Officers Association PAC, using technology from a software company in which Related Lobbyist Jude Barry is a partner.
“When you have three districts, I see a path for developers,” and other special interests “to buy Council Members,” said Planning Commission Chair Anthony Becker at the Sept. 26 meeting.
“If you have six districts, it’s easier to run. We can keep the model we have. If you’re worried about the 49ers, or developers, six districts is the way to break up those blocks.”
You can find information about the Charter Review Committee at santaclaraca.gov/government/committees/charter-review-committee.
As of this writing, the City Clerk’s office has posted no minutes, transcripts or post-meeting materials on SantaClaraCa.gov. Videos of some of the Committee’s meetings are on YouTube and the City’s Facebook page, not on the City’s Legistar site. This was considered sufficient by City Clerk Haggag, said Chair Jain.
*The CVRA (Section 14025 – 14032 of the California Elections Code) applies only to at-large election systems: “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.” A 2015 attempt to extend the law to single-member by-district systems was vetoed by Gov. Jerry Brown. The law classifies a system as at-large if it has any at-large component.
Correction: We mistakenly wrote that Charter Review Committee Chair Suds Jain said that three districts weren’t part of the committee’s assignment. It appears the committee was directed to consider two, three and six districts. “What I had complained about was that the implication from the Clerk that any discussion of rank choice voting or how district lines should be drawn after the 2020 census was essentially off the table,” Jain said.
