Is it Illegal?

Santa Clara’s June 5 Special Election is asking that the Santa Clara electorate change its election method from one discriminatory, illegal election system, at-large elections, to another discriminatory, illegal election method, multimember district elections. Is this what Santa Clara desires?

Santa Clara, for a long time, has been using the “oldest-trick-in-the-book,” at-large elections, for its City elections. Supreme Court Justice Ruth Bader Ginsberg cited this election method, along with racial gerrymandering, as “the preeminent second-generation way to deny equal opportunity to minority voters and candidates.”

Congress has banned at-large voting from all federal elections. It has been discarded in most states. It is also the voting method that has been subject to the most litigation for its discriminatory impact on local elections. The courts are continuing to pursue the demise of at-large election methods and its discriminatory intent and impact in hundreds of local jurisdictions.

In 1788, the first states elected their members for Congress at-large. Most soon saw how this left many regions in their states without local representation. By 1842, six of the 28 states were using at-large elections to control the party affiliation of all their seats.

That year, Congress banned the at-large voting method for congressional votes—followed by legal contests—until the passage of the 1965 Voting Rights Act, when Congress made the ban permanent. Most states, by law or practice, followed suit; but at-large voting still held a firm grip on local elections.

After the Civil War, local jurisdictions in several areas of our country adopted at-large elections to ensure whites-only governments. This voting method is most problematic, with the potential for one voting block to win all, and not just their proportionate share, of the seats because a dominant single voting block often votes cohesively for all the same candidates.

This pattern has been repeatedly validated by expert analysis of voting pattern preferences in voting rights cases. A 2011 City demographics report presents substantial evidence that these voting patterns have frequently occurred in past local Santa Clara elections.

Racially polarized voting and vote dilution are at the foundation of Santa Clara’s election method contentions. At-large voting—and its recommended variant, multi-member districts—is discriminatory and subject to vote dilution.

How do they work?

For example, if a resident minority makes up 25 percent of the city’s population, and there are eight council districts, the minority candidates would likely win two of these districts if single-member districts were used. In at-large elections, whites would outnumber the minority population three to one and will likely win all seats.

Multimember districts operate under the same principle as at-large elections.  In single-member districts, minority population voters would be expected to win some districts. In multimember districts, multiple candidates run for a group of seats.

Since whites outnumber minorities, white candidates generally win all the seats, according to analysis by Darryl Paulson, professor emeritus of government at USF St. Petersburg, who has studied how vote dilution replaced voter suppression in the segregationist South.

Through a California Voting Rights Act lawsuit, Asian-American “protected class” voters are demanding their rights to full participation in Santa Clara’s elective government, by asking Santa Clara to eliminate the discriminatory at-large election method it presently uses.

But what Santa Clara is offering in its stead is a two-district, multimember (3 members per district) election method. As stated above, the at-large election method has been found to be discriminatory and illegal; and the two-district proposal is as likely to be found discriminatory and illegal.

So where does that put the Santa Clara electorate? In a nutshell, it may be moved from its present illegal election method to another illegal election method. How and when will Santa Clara’s electorate be allowed to vote if each of these options are ruled illegal by the court that will hear the pending voting rights lawsuit in April?

To add to this confusion, the City’s June 5 ballot measure offers an alternate voting method called Ranked Choice, Single Transferrable Vote (STV). California legislative efforts at bringing this system into State voting regimens have been vetoed as overly complicated by two California Governors, Arnold Schwarzenegger and Jerry Brown.

Ranked Choice Voting Systems can also operate in discriminatory ways. The majority voters simply rank the minority candidates low. If an “elimination” system is used—“instant runoff”—the top vote-getters are likely to be the majority candidates. Even if the ranked choice system uses a less than 50 percent “quota” to assign the winning threshold for such multi-seat elections, the majority candidates still end up with more votes.

The method for counting the votes in Santa Clara has not defined in the ballot measure—it will be left to the City Council to decide. So voters really have no idea whether the system being proposed will have the proportional representation effect proponents are claiming.

All parts of the new proposed Santa Clara election method appear to be discriminatory, and/or illegal. As is the existing system. So where does our electorate go from here? Perhaps the County Superior Court will make a ruling that will offer an honorable course.

 

Santa Clara resident Rex McIntosh is a retired environmental business owner, former educator, columnist for the Salinas Californian and long-time activist and neighborhood organizer. He has served on civic committees in municipalities, and for college and school districts.