2018 District Formation Background

The CVRA was signed into law in 2002. The CVRA prohibits an at-large method of election that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election. The law’s intent is to expand protections against vote dilution over those provided by the Federal Voting Rights Act of 1965 (“FVRA”). The law was also motivated, in part, by the lack of success by plaintiffs in California in lawsuits challenging at-large electoral systems brought under the FVRA. The passage of the CVRA made it easier for plaintiffs to prevail in lawsuits against public entities that elected their members to its governing body through “at-large” elections. A plaintiff need only prove the existence of “racially polarized voting” to establish liability under the CVRA. Other factors are also relevant in determining liability. Proof of intent on the part of voters or elected officials to discriminate against a protected class is not required.

As a result, cities throughout California have increasingly been facing legal challenges to their “at-large” systems of electing city council members. Almost all cities that have received a legal challenge settled claims out of court by agreeing to voluntarily shift to district-based elections. Those that have defended CVRA challenges in courts have ultimately either voluntarily adopted, or have been forced to adopt, district-based elections. The CVRA grants a prevailing plaintiff the right to recover reasonable attorneys’ fees and expert witness fees. This has resulted in payment of huge amounts of money in attorneys’ fees by cities that have chosen to litigate the CVRA challenge. For example, in February 2015, the City of Santa Barbara reportedly paid $900,000 in attorneys’ fees and expert costs to settle their CVRA lawsuit. The City of Palmdale incurred expenses in excess of $4,500,000 in its unsuccessful attempt to defend against a lawsuit brought under the CVRA. On the other hand, even if the City prevails, it cannot recover either attorneys’ fees or costs. Also, the City would remain vulnerable to subsequent litigation brought under the CVRA by different plaintiffs. To date, 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.

On September 28, 2016, the Governor signed AB 350 into law . This legislation attempts to provide a “safe harbor” from CVRA litigation for cities that choose to voluntarily transition to a district-based election system. If a city receives a demand letter, such as in Livermore’s case, the city is given 45 days of protection from litigation to assess its situation. If within 45 days a city adopts a resolution declaring the Council’s intent to transition from at-large to district-based elections, outlining specific steps to be undertaken to facilitate the transition, and estimating a time frame for action, then a potential plaintiff is prohibited from filing a CVRA action for an additional 90 day period. Thus, the legislation provides time for the city to assess and implement a transition to a district-based system before a lawsuit may be filed. The legislation sets out a number of steps a city must take in the effort to assess and transition to a district-based election system, which is laid out in further detail below. Under AB 350, a city’s liability is capped at $30,000 if it follows this process after receiving a threat, and the plaintiff must show financial documentation that these costs were actually incurred.

For further information on the CVRA, see City Attorney Jason Alcala’s March 26, 2018 staff report to City Council.