Santa Clara Had 7-Year Warning of Voting Rights Lawsuit That Will Cost City Millions

In the last eight years the Santa Clara City Council has willfully missed many opportunities to prevent the voting rights lawsuit that will likely cost the City around $7 million—that’s what recent CVRA lawsuits cost Palmdale and Santa Monica—and prevent November’s Council election from being held.

Since 2011, Santa Clara has been on notice that its at-large by-seat elections were a lawsuit waiting to happen. During that time multiple City Councils, Mayors, committees and the current City Attorney have found numerous ways to dismiss the threat facing the City.

Santa Clara received its first warning letter about a likely California Voting Rights Act (CVRA) violation in 2011.

A Charter Review Committee was convened and commissioned the demographic study that was called into evidence in the current lawsuit. The City’s then-ethics consultant, Tom Shanks, advised the committee that the City’s at-large system resulted in a more responsive Council and higher voter engagement.

That 2011 committee was also the beginning of President of Californians for Electoral Reform Steve Chessin’s campaign to persuade Santa Clara to adopt a proportional voting system — despite its complexity, cost and the fact that the Santa Clara County Registrar of Voters can’t support any kind of ranked choice or proportional voting.

The committee’s ultimate recommendation was that the City immediately eliminate numbered seats and consider some form of ranked choice voting in the future. The Council’s response was to shelve the recommendation until after the 2012 election. The subject never came up again at a public Council meeting.

In November 2015, another Charter Review Committee was proposed by then-Mayor Jamie Matthews, and urged by then-City Attorney Ren Nosky, to discuss the same question.

That committee was appointed in early 2016, but decided not to discuss its assignment, instead coming up with four charter changes irrelevant to elections.

Less than six months after the committee disbanded, civil rights attorney Robert Rubin wrote a second warning letter to Santa Clara advising the City that its at-large by-seat election system was discriminatory and illegal. The Council ignored the letter until the current lawsuit was filed in early 2017.

The 2016 committee was reconvened to address the voting rights question. However,

Santa Clara exceptionalism seemed to rank higher in the majority’s reasoning than demographic facts and 20 years of CVRA case history — during which no California city or public agency has ever won a voting rights lawsuit and no system except single-member districts has been accepted as a remedy.

“Just because we have a lawsuit we don’t have to bend over,” Charter Review Committee Chair Tino Silva said at the June 25, 2017 meeting. “A judge has to look at Santa Clara and [decide]: does this resolve this [polarized voting]? I think the burden of proof is on the plaintiff. Maybe we don’t lose.

“Maybe the judge would say,” Silva continued, “‘this works in San Francisco because of their demographics. But in Santa Clara, I can’t find or delineate any one part of town that would even address the issue of minorities not being represented on Council’ …We are different. We are unique in our demographics.” He said he didn’t think single member districts were “going to solve” the absence of minority representation on the Council.

In fact, Santa Clara’s demographics are virtually identical to the larger demographics of the South Bay, per the U.S. Census Bureau.

Committee Member Hosam Haggag — a software engineer who has publically taken credit for the two-district map in Measure A — argued that single member districts would be counterproductive, saying, “Increasing the number of districts makes it harder to increase the number of minorities.”

City Attorney Brian Doyle said that he thought the lawsuit — the one City has just lost — didn’t “have much merit.” He followed this up with, “These are things courts have decided in vastly different circumstances … I think we can defend this lawsuit and win.”

The committee didn’t commission a current demographic study to check the validity of its assumptions. The time was instead spent in discussing ranked choice voting and proportional representation variants, expounded by Californians for Electoral Reform’s Chessin and FairVote field representative Margaret Okuzumi.

Consideration of the actual law was limited to the committee majority’s collective opinion that an ‘s’ at the end of the word ‘district’ sufficed to provide safe harbor from the CVRA.

Only one member of the committee dissented from the 2×3, ranked choice/single transferrable vote proposal that voters defeated last week, and he ultimately resigned from the committee.

In fact, only single-member election districts provide safe harbor from a CVRA lawsuit because the law specifically refers to at-large election methods, which include systems that combine at-large elections with district-based elections (California Elections Code 14026 (3)).

Last week, after more than a year and plaintiffs’ legal bills topping $4 million — which the City by law must pay — Judge Thomas Kuhnle found the City in violation of the CVRA and scheduled a July 9 hearing to decide a remedy. Based on the Palmdale and Santa Monica experience, the City’s own cost for outside attorneys and expert witnesses is likely $2 to $3 million. This adds up to the City being on the hook for $6 to $7 million in total legal bills.*

The City could move ahead and develop a single-member district plan in time for the November election — “the court would likely defer to the jurisdiction’s plan,” said Rubin. However, Mayor Lisa Gillmor has been telling the Mercury News that she wants to bring back another two-district scheme on the November ballot, and telling residents that the case is “still in court.”

“If they fail to come up with a [single-member district] plan there will be no election,” said Rubin. “We will likely seek an injunction. In a case where the party has already been found liable it’s not a high burden to get an injunction.” Rubin said the likelihood of the plaintiffs getting that injunction are “100 percent.”

*The City says that outside legal bills are protected by attorney-client privilege and thus aren’t public records. Appropriations to pay legal bills are lumped into the Special Liability Insurance Fund.