220321 1736 Fwd_ Response to September 17, 2021 Demand Letter Under California Voting Rights ActFrom:Peter Grant
To:Arianna Barrios
Subject:Fwd: Response to September 17, 2021 Demand Letter Under California Voting Rights Act
Date:Monday, March 21, 2022 5:35:51 PM
Attachments:Letter to Kevin Shenkman - response to initial letter.pdf
It’ll be on website tomorrow
Begin forwarded message:
From: Fred Galante <fgalante@awattorneys.com>
Date: March 21, 2022 at 13:11:10 PDT
To: Peter Grant <pgrant@cypressca.org>
Cc: Alisha Farnell <afarnell@cypressca.org>
Subject: FW: Response to September 17, 2021 Demand Letter Under
California Voting Rights Act
Hi Pete,
Here is the final letter that went out to Shenkman. I will send it to the Council next.
Fred Galante | Equity Partner
Aleshire & Wynder, LLP | 18881 Von Karman Ave., Suite 1700, Irvine, CA 92612
Tel: (949) 223-1170 | Dir: (949) 250-5410 | Fax: (949) 223-1180 |
fgalante@awattorneys.com | awattorneys.com This email and any files transmitted with it may contain privileged or otherwise confidential information. If you are not
the intended recipient, or believe that you may have received this communication in error, please advise the sender via
email and delete the email you received.
From: Karen R. Becker <kbecker@awattorneys.com>
Sent: Monday, March 21, 2022 1:09 PM
To: shenkman@sbcglobal.net
Cc: Fred Galante <fgalante@awattorneys.com>
Subject: Response to September 17, 2021 Demand Letter Under California Voting
Rights Act
Importance: High
Attached please find Mr. Galante’s March 21, 2022correspondence pertaining to the above-referenced matter. Should you be unable to open the attached, please do not
hesitate to contact the undersigned.
Karen R. Becker
Karen R. Becker, PP, PLS | Certified Paralegal/Secretary to David J. Aleshire, Sunny K.
Soltani, Fred Galante, Anne Lanphar, Lona Laymon, Benjamin R. Jones
Aleshire & Wynder, LLP | 18881 Von Karman Ave., Suite 1700, Irvine, CA 92612
Tel: (949) 223-1170 | Dir: (949) 250-5434 | Fax: (949) 223-1180 |
kbecker@awattorneys.com | awattorneys.com
This email and any files transmitted with it may contain privileged or otherwise confidential information. If you are not
the intended recipient, or believe that you may have received this communication in error, please advise the sender via
email and delete the email you received.
Fred Galante
fgalante@awattorneys.com
(949) 250-5410
18881 Von Karman Avenue,
Suite 1700
Irvine, CA 92612
P (949) 223-1170
F (949) 223-1180
01004.0082/776289.2
March 21, 2022
Via Email: shenkman@sbcglobal.net
Kevin I. Shenkman
28905 Wight Road
Malibu, CA 90265
Re: Response to September 17, 2021 Demand Letter Under California Voting
Rights Act
Dear Mr. Shenkman:
As City Attorney of the City of Cypress (“City”), I write in response to your September 17, 2021,
letter accusing the City of violating the California Voting Rights Act (“CVRA”). Since the bulk
of your letter follows the same form letter you have sent many jurisdictions in California, your office
and your client Southwest Voter Registration Education Project (“SVREP”) fail to acknowledge
certain key attributes about Cypress’ demographics and its elections that lead to the opposite
conclusion; the City’s at- large election system does not violate the CVRA. An analysis of these
attributes would lead SVREP to admit that your allegations about the City violating the CVRA are
unwarranted. Indeed, the City’s demographics and the diversity of candidates historically elected to
the City Council of the City demonstrates that the City is not a candidate for your boilerplate allegations.
First, the City has enjoyed a strong track record of having those persons who receive the most
votes behind successful Council candidates getting elected at subsequent Council elections. This
example can be seen by viewing even the most recent election when Council Member Marquez, a
minority candidate, won the election after her second run for a City Council seat. In her first run
for Council, she received the second-highest number of votes behind the three successful
candidates. As such, there is ample evidence that there is no racially-polarized voting pattern in
the City to warrant switching to by-district elections.
Second, we have asked you to share any evidence SVREP has to support the allegations that
racially-polarized voting exists in Cypress. You refused, notwithstanding the obligations of a
CVRA plaintiff to demonstrate more than simply pointing to one minority candidate who lost an at-
large election. I explained to you that the City’s demographer found no evidence of racially -
polarized voting. As such, it would not only be appropriate for SVREP to provide this basic
information it purports to have in support of its letter, the information would need to be
demonstrated in any action against the City in any event. A plaintiff alleging violations of the
CVRA must prove “racially polarized voting” (Elec. Code, subsection 14028(a)) by establishing
that a minority group tends to vote in a similar manner, that is are “politically cohesive,” and that
“the white majority votes sufficiently as a bloc to enable it - in the absence of special
circumstances… - usually to defeat the minority’s preferred candidate.” (Thornburg v. Gingles
(1986) 478 U.S. 30, 51.) A CVRA plaintiff must also demonstrate that the at-large voting system
Kevin I. Shenkman
March 21, 2022
Page 2
has diluted minority voting strength, such that an alternative voting scheme would enhance the
ability of voters of a protected class to elect candidates of their choice or influence the outcome of
elections. (Elec. Code, § 14027.)
The only specifics in your letter identifies one Asian Council candidate’s unsuccessful bid for a
seat on the Council. This ignores the above trend, but more importantly, overlooks the fact that
the City has had a history of Asian American candidates being elected to the City Council. In
1998 and again 2002, Lydia Sondhi was elected to the City Council. Also, in 2006 and again 2010,
Dr. Prakash Narain was elected to the City Council. These elections victories occurred in the
aforementioned candidates’ respective first and second bids for Council seats. Certainly, these
undeniable trends of Asian Americans succeeding in the City’s at-large elections confirm that
Cypress is not the appropriate target for your cookie cutter CVRA letters.
Your allegations further ignore that a CVRA plaintiff must demonstrate that the at-large voting
system has diluted minority voting strength, such that an alternative voting scheme would enhance
the ability of voters of a protected class to elect candidates of their choice or influence the outcome
of elections. (Elec. Code, § 14027.) None of these basic requirements for a claim are established
by your letter and the refusal to provide this support leaves the City to wonder about the merits of
SVREP’s allegations.
Third, the evidence from the at-large elections at the Cypress Elementary School District
(“CESD”), which substantially shares voting borders with those of the City’s jurisdiction, confirms
that Asian Americans have enjoyed tremendous success in their bid for seats on the CESD Board
of Trustees. In both of the 2012 and 2014 at-large elections conducted by CESD, Asian Americans
who ran for Board seats were elected. Certainly, this provides valuable evidence that racially-
polarized voting within the City’s boarders simply does not exist.
Fourth, the holding in the Court of Appeal’s recent decision in the City of Santa Monica v. Pico
Neighborhood Association case on review by the California Supreme Court (No. S263972)
rejected a vote-dilution theory similar to the one you advance here, and referred to your other
arguments as “unprecedented and unwise.” The court explained that “dilution” requires a plaintiff
to show that district-based elections would actually change electoral results by providing the
relevant protected group with enough voting power to do so. Additionally, contrary to the
suggestions in your letter, district-based elections are not inherently better for minority voters. The
Court in Santa Monica highlighted the potential for district-based elections to deprive minorities
of fair representation. Other cases have similarly found that district-based elections could diminish
minority voting strength. (See, e.g., Gill v. Whitford (2018) 138 S.Ct. 1916, 1924 [district
boundaries may be established so as to yield “cracking”, or the division of “a party’s supporters
among multiple districts so they fall short of a majority in each one” and “packing”, or
“concentrating one party’s backers in a few districts” whereas spreading them across multiple
districts would increase their electoral success].)
Fifth, the City performed a broad outreach program in response to your letter and the majority of
residents confirmed their concerns about the risks of removing their ability to vote for all 5 seats
Kevin I. Shenkman
March 21, 2022
Page 3
on the City Council. In fact, the survey conducted by the City as part of its outreach program
confirmed that the majority of the residents that participated opposed any action to switch to by-
district elections. The legal concern raised by the residents is a persuasive one; namely, there are
no areas within the City that benefit from a high concentration of any protected class. As such, it
would be impossible to show that districts would enhance the ability of any protected class to elect
candidates of its choice or influence election outcomes. To the contrary, splitting up the votes of
those protected classes would have the effect of preventing them from voting as a larger class to
elect a candidate of their choice.
Your letter also incorrectly assumes that minority voters prefer only minority candidates. Courts
have repeatedly rejected that argument. (See, e.g., Ruiz v. City of Santa Maria (9th Cir. 1988) 160
F.3d 543, 551 [“We join our [nine] sister circuits in rejecting the position that the ‘minority’s
preferred candidate’ must be a member of the racial minority. To hold otherwise would … provide
judicial approval to ‘electoral apartheid.’”].) Again, you refused to provide any evidence to
support your arguments and instead said that we would not have an opportunity to see any of the
evidence you purport to have until after you initiate a lawsuit forcing taxpayers to pay large sums
of money to secure this basic information. It is hard to imagine how such a tactic advances
anyone’s interests other than those of the lawyers. In fact, we are mindful that most public entities
that have voluntarily adopted district-based elections in response to your demand letters have done
so for no other reason than that they lack the resources to refute the claim.
For the reasons stated herein, we believe pursuing any legal action against the City would not only
be unwarranted, but would also expose your office and CVREP to the City’s legal expenses
pursuant to Elections Code section 14030. We would therefore respectfully request that you
provide us any evidence you purport to have in support of your allegations so that we can
understand the nature of your client’s demand. Your refusal to do so leaves the City without
evidence of a CVRA violation and no rationale for disenfranchising its residents by abandoning
at-large elections.
Feel free to contact me if you wish to discuss further.
Sincerely,
Fred Galante,
City Attorney
cc: Hon. Mayor and Members of the Cypress City Council
Pete Grant, City Manager
Alisha Farnell, City Clerk