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From:jonpeat@att.net To:Alisha Farnell Subject:FW: Today"s OC Register Article Date:Thursday, June 2, 2022 10:06:20 AM Attachments:As Cypress Weighs District Voting, Anger Breaks Out At City Councilwoman OC Register 2-8-2022.docx Good Morning Alisha, I am going to send you the emails that I have on my home computer related to the Cal Aware request. I do not have many to send to you. This first email I sent to myself with an attached article from the OC Register. Jon From: jonpeat@att.net <jonpeat@att.net> Sent: Tuesday, February 8, 2022 4:27 PM To: Jonpeat@att.net Subject: Today's OC Register Article As Cypress weighs district voting, anger erupts at city councilwoman Cypress city councilwoman, Frances Marquez, who was elected in 2020 stands in front of the home her parents bought in the 1970’s and have lived there since. Cypress on Sunday, February 6, 2022. (Sam Gangwer, Contributing Photographer) By SUSAN CHRISTIAN GOULDING | sgoulding@scng.com | Orange County Register PUBLISHED: February 7, 2022 at 4:57 p.m. | UPDATED: February 8, 2022 at 12:14 p.m. Depending on where and how you look at it, Cypress is either a quiet bedroom community or a bustling center of commerce. The north Orange County city is home to 50,000 residents, with a comfortable median household income of about $93,000. While small in size at 6.6 square miles, Cypress boasts a healthy tax base and a host of employers – including UnitedHealth Group, Yamaha Motor, Costco, Home Depot, Los Alamitos Race Course, Cypress College, Forest Lawn Memorial Park, several hotels and, as of November, a 23-acre Amazon last-mile facility. Still, heated disputes bubble beneath the surface. And sometimes they erupt. In meetings, city officials openly bristle at newcomer Frances Marquez – who, they say, introduces agenda items that are needlessly contentious, such as flying the LGBTQ Pride flag. Three weeks ago, in an awkward outburst, Councilman Jon Peat angrily yelled at her about a subcommittee committee from which she was excluded. “I am tired of being scolded by you in public,” he said. “What gives you the right to sit here and criticize all of us?” At the podium, residents address the negative tenor of council meetings – noting the “bad optics” of the four-member majority chiding the lone woman of color. “I am appalled and shocked by how our City Council members treat one of their colleagues,” said resident Brittney Cook, an insurance agent. “If I behaved like that in the corporate world, I’d be fired.” Residents complain that, with all the council members except Marquez living close together, other neighborhoods are overlooked. They grouse about the huge Amazon distribution center inserted on Katella Avenue near their homes, and a pay-to-use sports park now under construction in another part of town. The parking lot at Lexington Park in Cypress on Monday, February 7, 2022. The new sports park is still under construction. (Photo by Leonard Ortiz, Orange County Register/SCNG) Some denizens slam a no-bid extension of a trash collection contract, maintaining it was swayed by conflicts of interest on the council. And now, adding stress upon stress, the city must decide whether to carve out council districts – with the alternative of a potentially expensive lawsuit. Threat of litigation Like a dozen Orange County cities before it, Cypress last September received a letter alleging that its election system dilutes minority voices. Currently, all Cypress voters decide on all five council seats. With districts, voters choose only one council member who lives within their area. The by-district method, intended to better serve groups with common interests, is generally favored by the California Voters Rights Act of 2001 (CVRA). Cypress’ threat of a lawsuit came from prolific Malibu attorney Kevin Shenkman, who specializes in going after cities and school districts that still hold at-large elections. Fighting CVRA violation claims in court has proved costly and fruitless for those that try. Seven years ago, Anaheim spent $1.1 million before relenting to by-district elections. In 2015, Palmdale backed down after forking over $4.7 million. Santa Monica has spent more than $8 million on still-active litigation. Therefore, most cities – including Fullerton, Garden Grove, Santa Ana, Tustin, Westminster and Los Alamitos – grudgingly agree to transition to precincts rather than risk a burdensome legal battle. Shenkman’s missive, written on behalf of a Latino civil rights group, offers a laundry list of Cypress’ purported vulnerabilities. Although Asians comprise 35% of the city’s population – the same percentage as white residents – the “complete lack of Asian representation” on the council “is revealing,” the letter states. Shenkman points to an Asian American candidate, Carrie Hayashida, who came in third for two City Council seats in the 2020 election. Six months later, after a councilwoman resigned, Hayashida and five other female applicants were passed over for Scott Minikus, one of two men who applied. Dragging its feet? After receiving Shenkman’s notification, the council met eight times in closed session to discuss next steps before calling a special meeting – announced on Christmas Eve and held Dec. 27. But instead of approving the creation of sample precinct maps, the council voted to hire a consultant for $40,000 to solicit public input about whether even to proceed. Questioning the $200-per-hour price tag, Marquez, a college professor, was the one “no” vote. “We have a fiduciary responsibility to spend the money of taxpayers in Cypress responsibly,” she said. Cypress city councilwoman, Frances Marquez, who was elected in 2020 finds herself at odds with the other council members over the city’s garbage collection contract. Sunday, February 6, 2022. (Sam Gangwer, Contributing Photographer) Some wonder if the city is procrastinating the inevitable. “We’ve made it very clear to them that districts need to be in place in time for the November elections,” Shenkman said. “They are running out of time.” Shenkman speculated that the council’s desire to hold opinion-seeking forums “could be an effort to orchestrate an AstroTurf uprising against districts.” “When they waste millions of taxpayer dollars fighting a lawsuit they can say, ‘Our constituents wanted us to,’” Shenkman said. However, city watchdog George Pardon, a retired Cal State University administrator, does not foresee a lawsuit. “They’re just kicking districts down the road to get past the November election,” Pardon said. “They have people in mind who they want to see elected, which might not happen in districts.” George Pardon of Citizens for Responsible Development of Cypress, outside of the Cypress city council chamber on Thursday, February 3, 2022. Pardon is the city watchdog and city council critic who supports by-district representation. (Photo by Mark Rightmire, Orange County Register/SCNG) But, Mayor Paulo Morales asserted, “We are absolutely not using the workshops to drag our feet.” “The majority of people don’t understand what districts are for and need to learn more about them,” Morales said. “I hear, ‘I’d only have 20% of the vote!’” Morales added. “I say, wait a minute, is that the end of the world? That’s the way we do it with Congress.” District elections can result in pitting allies against one another, depending on where they live. Three seats will be open this year. Peat and Morales term out, and Minikus will be up for election after serving 15 months as an appointee. Asian American representation One person planning to be on the upcoming ballot is Hayashida, the candidate who recently placed third. “I’m saddened that the council missed an opportunity to check off several boxes last summer in its appointment: a strong candidate in the last election; the first Asian American councilwoman; and someone who represents a neighborhood currently not well represented,” said Hayashida, who works as a career coach. “But I didn’t run because I’m Asian. I wanted to represent all of Cypress, and I still feel that way.” Malini Nagpal, a psychologist, also threw her name in the hat to fill the opening. “I didn’t have a chance in hell,” she said, now laughing over her unsuccessful interview. “One of the job requirements was that you had to be a ‘team player,’” Nagpal said. “They didn’t want different viewpoints. It’s a tight-knit group with a lot of overlap.” Morales and Minikus are both retired police officers. Peat is chairman of the Boys & Girls Club of Greater Anaheim-Cypress, where Mayor Pro Tem Anne Hertz-Mallari serves as president. Whatever happens next, it appears that City Council meetings will, at least in the near future, remain acrimonious. At the Jan. 24 meeting, Peat requested that the Council consider a motion of censure against Marquez for disclosing to the public closed session discussions. In a brief telephone conversation, Peat declined to provide specifics, saying only, “We need to keep our business among ourselves.” From:jonpeat@att.net To:Alisha Farnell Subject:FW: Research Info Date:Thursday, June 2, 2022 10:14:38 AM Attachments:Why single member districts make sense for Cypress ENE Article 2-2-2022.docx As Cypress Weighs District Voting, Anger Breaks Out At City Councilwoman OC Register 2-8-2022.docx Post Christmas meeting prompts holiday fireworks ENE Article 1-13-2022.docx Citizens for Responsible Development of Cypress Facebook Post 1-23-2022.docx Trash into gold in Cypress ENE Article 1-26-2022.docx Time to Protest the Cypress Trash Proposal 1-13-2022.docx Alisha, This is the last email I have. Jon From: jonpeat@att.net <jonpeat@att.net> Sent: Tuesday, February 8, 2022 7:46 PM To: Paulo Morales <pmmorales_7@yahoo.com>; 'annemmallari@gmail.com' <annemmallari@gmail.com>; 'cpsminikus@ca.rr.com' <cpsminikus@ca.rr.com> Subject: Research Info Colleagues, I have done some research on articles and Facebook posts related to the trash contract and voting districts. I have copied the articles into Word documents for ease of storage and retrieval. I am providing this to you for informational purposes only. I hope you find this interesting. Please do not reply to all if you respond to this email. Thank you, Jon Why single member districts make sense for Cypress. By For Event-News Enterprise - February 2, 2022 0 99 David Burke By David Burke On September 17, 2021 attorney Kevin Shenkman sent a letter to the city of Cypress alleging that the city’s at-large elections violate the California Voting Rights Act of 2001 (CVRA). The crux of the allegation is that the at-large system results in minority vote dilution and that the lack of Asian representation in government for a city with 35.2% Asian residents is evidence of a CVRA violation. Shenkman gave the city 45 days to voluntarily consider creating single-member districts. Yet, more than four months later Cypress is not substantially closer to drawing electoral districts than it was in September, which poses a significant risk for two reasons. First, it is extremely difficult for a city to prevail against an alleged CVRA violation of minority vote dilution. In fact, no city in California has successfully done so. A plaintiff can prevail by showing “racially polarized voting” in which there is a difference in the choice of candidates that are preferred by voters in a protected class and the choices of the voters in the rest of the electorate. Such voting patterns are very common and the court can even look at the voting preferences of groups in county or state elections, and for ballot initiatives. So although the city of Cypress maintains that they have not found any merit to the allegation that they are violating the law, it is unlikely that a court would agree. Second, the legal battle would be a drain on the city’s coffers. Santa Clara spent approximately $6 million, unsuccessfully, before agreeing to a voter-approved charter amendment requiring single member districts. Santa Monica has spent over $7 million in a battle that is still being waged in the courts. Given the long odds of success once a lawsuit is initiated—which Shenkman has said will happen by June of this year—it seems more prudent and fiscally responsible for Cypress to transition to districts voluntarily. Thus far, the City Council has largely delayed that process. The city did recently hold the first of three public forums on January 19, 2022 to “learn more about and discuss several important topics surrounding municipal elections.” But with the specter of costly litigation looming, these forums should have occurred sooner. In the first forum, residents were divided over at-large versus district elections, with some expressing concerns that districts would cause division while others thought they would lead to more effective representation. To be fair, there are arguments on both sides. Benefits of district elections include ensuring that there is a representative from every geographic area of the city and reducing the cost of political campaigns and candidates’ reliance on large donors. For residents, it can also be beneficial to know exactly who represents them if there is a problem in their neighborhood. On the other hand, some people fear that districts would distract representatives from issues that impact the city as a whole. And in cities with low populations and small districts, it may be difficult to find strong candidates who are interested in running. In my view, the potential benefits of district elections in Cypress outweigh the costs. Cypress is large enough that there should be many qualified candidates from different parts of the city. Given that hundreds of cities and school boards in California already elect representatives by district, there is also ample evidence that local officials can collaborate on city-wide issues while paying special attention to the districts they represent. But regardless of the pros and cons of district elections, the law is on Shenkman’s side. Just as Los Alamitos, Fullerton, Garden Grove, Stanton, and other cities did after facing a CVRA challenge, Cypress will likely transition to single member districts soon enough. When that happens, creating an independent redistricting commission is the best way to ensure that the process is motivated by the best interests of the community rather than by political self-interest. The most effective redistricting processes follow a few core principles. Districts should be of equal population, compact, contiguous, and keep “communities of interest” together, meaning that neighborhoods that share social and economic interests should not be split apart. Unfortunately, when politicians draw district lines, those considerations often take a back seat to what is best for those politicians’ electoral prospects. Elected officials have an inherent conflict of interest when drawing district lines where they may subsequently run for office. Even those who are termed out have a conflict because they may have a family member or political ally who plans to run. The end result is often bizarrely drawn district lines that put incumbents or their chosen successors into areas with favorable constituencies, or lines that split incumbents who live near each other into separate districts so they don’t have to run against each other. An independent redistricting commission would prevent those problems because citizens—not elected officials—would be tasked with drawing the district lines. Typically, commission members are chosen via lottery out of a pool of qualified applicants, while making sure that members from different geographic areas of city are selected. Residents who don’t serve on the commission can still participate in public hearings, comment on draft maps, or even submit maps of their own for consideration. More than twenty cities and counties throughout California including San Diego, Oakland, Long Beach, Sacramento, and Oakland have already put such commissions in place, which can serve as a useful template for Cypress to follow. And although such commissions are not immune from contentious arguments, they are often accompanied by praise from residents who are grateful for a more inclusive and transparent process than having elected officials draw lines behind closed doors. By creating an independent redistricting commission in Cypress, the City Council would simultaneously put an end to Shenkman’s threatened litigation while giving more residents the chance to participate in the political process. The chance to save the city millions while engendering more responsive government is one the Council should not squander. Editor’s note: David Burke is a Cypress resident and the founder of Citizens Take Action, a nonprofit focused on creating more responsive government and increasing civic engagement. As Cypress weighs district voting, anger erupts at city councilwoman Cypress city councilwoman, Frances Marquez, who was elected in 2020 stands in front of the home her parents bought in the 1970’s and have lived there since. Cypress on Sunday, February 6, 2022. (Sam Gangwer, Contributing Photographer) By SUSAN CHRISTIAN GOULDING | sgoulding@scng.com | Orange County Register PUBLISHED: February 7, 2022 at 4:57 p.m. | UPDATED: February 8, 2022 at 12:14 p.m. Depending on where and how you look at it, Cypress is either a quiet bedroom community or a bustling center of commerce. The north Orange County city is home to 50,000 residents, with a comfortable median household income of about $93,000. While small in size at 6.6 square miles, Cypress boasts a healthy tax base and a host of employers – including UnitedHealth Group, Yamaha Motor, Costco, Home Depot, Los Alamitos Race Course, Cypress College, Forest Lawn Memorial Park, several hotels and, as of November, a 23-acre Amazon last-mile facility. Still, heated disputes bubble beneath the surface. And sometimes they erupt. In meetings, city officials openly bristle at newcomer Frances Marquez – who, they say, introduces agenda items that are needlessly contentious, such as flying the LGBTQ Pride flag. Three weeks ago, in an awkward outburst, Councilman Jon Peat angrily yelled at her about a subcommittee committee from which she was excluded. “I am tired of being scolded by you in public,” he said. “What gives you the right to sit here and criticize all of us?” At the podium, residents address the negative tenor of council meetings – noting the “bad optics” of the four-member majority chiding the lone woman of color. “I am appalled and shocked by how our City Council members treat one of their colleagues,” said resident Brittney Cook, an insurance agent. “If I behaved like that in the corporate world, I’d be fired.” Residents complain that, with all the council members except Marquez living close together, other neighborhoods are overlooked. They grouse about the huge Amazon distribution center inserted on Katella Avenue near their homes, and a pay-to-use sports park now under construction in another part of town. The parking lot at Lexington Park in Cypress on Monday, February 7, 2022. The new sports park is still under construction. (Photo by Leonard Ortiz, Orange County Register/SCNG) Some denizens slam a no-bid extension of a trash collection contract, maintaining it was swayed by conflicts of interest on the council. And now, adding stress upon stress, the city must decide whether to carve out council districts – with the alternative of a potentially expensive lawsuit. Threat of litigation Like a dozen Orange County cities before it, Cypress last September received a letter alleging that its election system dilutes minority voices. Currently, all Cypress voters decide on all five council seats. With districts, voters choose only one council member who lives within their area. The by-district method, intended to better serve groups with common interests, is generally favored by the California Voters Rights Act of 2001 (CVRA). Cypress’ threat of a lawsuit came from prolific Malibu attorney Kevin Shenkman, who specializes in going after cities and school districts that still hold at-large elections. Fighting CVRA violation claims in court has proved costly and fruitless for those that try. Seven years ago, Anaheim spent $1.1 million before relenting to by-district elections. In 2015, Palmdale backed down after forking over $4.7 million. Santa Monica has spent more than $8 million on still-active litigation. Therefore, most cities – including Fullerton, Garden Grove, Santa Ana, Tustin, Westminster and Los Alamitos – grudgingly agree to transition to precincts rather than risk a burdensome legal battle. Shenkman’s missive, written on behalf of a Latino civil rights group, offers a laundry list of Cypress’ purported vulnerabilities. Although Asians comprise 35% of the city’s population – the same percentage as white residents – the “complete lack of Asian representation” on the council “is revealing,” the letter states. Shenkman points to an Asian American candidate, Carrie Hayashida, who came in third for two City Council seats in the 2020 election. Six months later, after a councilwoman resigned, Hayashida and five other female applicants were passed over for Scott Minikus, one of two men who applied. Dragging its feet? After receiving Shenkman’s notification, the council met eight times in closed session to discuss next steps before calling a special meeting – announced on Christmas Eve and held Dec. 27. But instead of approving the creation of sample precinct maps, the council voted to hire a consultant for $40,000 to solicit public input about whether even to proceed. Questioning the $200-per-hour price tag, Marquez, a college professor, was the one “no” vote. “We have a fiduciary responsibility to spend the money of taxpayers in Cypress responsibly,” she said. Cypress city councilwoman, Frances Marquez, who was elected in 2020 finds herself at odds with the other council members over the city’s garbage collection contract. Sunday, February 6, 2022. (Sam Gangwer, Contributing Photographer) Some wonder if the city is procrastinating the inevitable. “We’ve made it very clear to them that districts need to be in place in time for the November elections,” Shenkman said. “They are running out of time.” Shenkman speculated that the council’s desire to hold opinion-seeking forums “could be an effort to orchestrate an AstroTurf uprising against districts.” “When they waste millions of taxpayer dollars fighting a lawsuit they can say, ‘Our constituents wanted us to,’” Shenkman said. However, city watchdog George Pardon, a retired Cal State University administrator, does not foresee a lawsuit. “They’re just kicking districts down the road to get past the November election,” Pardon said. “They have people in mind who they want to see elected, which might not happen in districts.” George Pardon of Citizens for Responsible Development of Cypress, outside of the Cypress city council chamber on Thursday, February 3, 2022. Pardon is the city watchdog and city council critic who supports by-district representation. (Photo by Mark Rightmire, Orange County Register/SCNG) But, Mayor Paulo Morales asserted, “We are absolutely not using the workshops to drag our feet.” “The majority of people don’t understand what districts are for and need to learn more about them,” Morales said. “I hear, ‘I’d only have 20% of the vote!’” Morales added. “I say, wait a minute, is that the end of the world? That’s the way we do it with Congress.” District elections can result in pitting allies against one another, depending on where they live. Three seats will be open this year. Peat and Morales term out, and Minikus will be up for election after serving 15 months as an appointee. Asian American representation One person planning to be on the upcoming ballot is Hayashida, the candidate who recently placed third. “I’m saddened that the council missed an opportunity to check off several boxes last summer in its appointment: a strong candidate in the last election; the first Asian American councilwoman; and someone who represents a neighborhood currently not well represented,” said Hayashida, who works as a career coach. “But I didn’t run because I’m Asian. I wanted to represent all of Cypress, and I still feel that way.” Malini Nagpal, a psychologist, also threw her name in the hat to fill the opening. “I didn’t have a chance in hell,” she said, now laughing over her unsuccessful interview. “One of the job requirements was that you had to be a ‘team player,’” Nagpal said. “They didn’t want different viewpoints. It’s a tight-knit group with a lot of overlap.” Morales and Minikus are both retired police officers. Peat is chairman of the Boys & Girls Club of Greater Anaheim-Cypress, where Mayor Pro Tem Anne Hertz-Mallari serves as president. Whatever happens next, it appears that City Council meetings will, at least in the near future, remain acrimonious. At the Jan. 24 meeting, Peat requested that the Council consider a motion of censure against Marquez for disclosing to the public closed session discussions. In a brief telephone conversation, Peat declined to provide specifics, saying only, “We need to keep our business among ourselves.” Post Christmas meeting prompts holiday fireworks By David N. Young - January 13, 2022 0 195 Council member Frances Marquez After eight closed sessions, the Cypress City Council hastily called a public meeting two days after Christmas to hire a consultant and reveal their strategy to stave off a voting district lawsuit. Although served with a demand letter months ago regarding a potential violation of the California Voting Rights Act (CRVA), the city waited until two days after Christmas to hastily call a public meeting to discuss a series of forums called to discuss the issue. Council member Frances Marquez questioned the wisdom and legality of the meeting, saying the Facebook notification was posted just before the public meeting, held last Monday, Dec. 27. Although city officials acknowledged posting a notice to Facebook only shortly before the public meeting began, city attorney Fred Galante said the meeting notice was properly placed on the website so the meeting was legal. “There are no Brown Act violations with this meeting,” said Galante. Further, Galante suggested that the city is not in violation of the California Voting Rights Act, at least as far as their investigation to date is concerned. “The one thing I would clarify,” said Galante, is we have yet to find any evidence that the city of Cypress is violating the law. Any further discussion is a closed session issue,” he said. City manager Peter Grant introduced Arianna Barrios, the CEO of the Communications Lab, who the city has selected to roll out an information campaign to the community. In addition, he acknowledged for the first time during this meeting that the city had hired a demographer to study the city’s makeup. Grant said hard costs are currently estimated to be $40,000 out of pocket for a series of planned outreach meetings and presentations, which he says does not including the soft costs provided by city officials to facilitate three upcoming public meetings. Council member Jon Peat. The Communications Lab CEO will be paid $200 hour, according to a schedule of costs that also suggests interns on the project will be paid $75 per hr. as the city rolled out the redistricting outreach strategy for the upcoming series of meetings. “That seems like a lot of money for an intern,” said Marquez. The firm will prepare a detailed presentation to educate voters about the city’s election system so they can better understand both the current at-large system and potential single member districts, the council was told. Moreover, the firm will prepare the presentations in three languages, including English, Spanish and Korean. Grant asked the Council for continued input on the presentation and asked that all changes they suggested be sent to him by a specific date to be included in the Communications Lab final presentation. According to the group’s schedule, the first redistricting public meeting is scheduled on Zoom for January 19. The Council voted 4-1 to move forward with the Communications Lab, with Marquez voting against. Mayor Pro-tem Anne Hertz and council member Scott Minikus questioned Marquez’ opposition and Hertz asked why she voted no. “Your ‘no’ vote caught me by surprise,” said Hertz, asking why Marquez did not speak out after the motion and a second. “You know, I just want to say that this is what people despise about elected officials,” said Marquez, “making decisions when the community has not been made aware of a meeting. We have a fiduciary responsibility to spend the money of taxpayers in Cypress responsibly.” Marquez complained about what she perceives as the city’s overall lack of transparency and meetings scheduled when few people can attend. In addition, she and others expressed concern about multiple errors in a proposed Communications Lab presentation that Barrios said would be sent to Cypress citizens, even though Marquez said she assumed it would be cleaned up before being mailed to the public. “We’re paying thousands of dollars for information and I’m hoping that it’ll be correct in the future,” she said. Galante pointed out two potentially misleading legal assumptions in the presentation and suggested they be changed. Barrios said the PowerPoint being shown was only a draft and of course would be fact-checked before being distributed or presented to citizens. Barrios said her firm will educate Cypress residents on the advantages of both single member districting and at-large districts. “We want them to understand what is going on,” said Barrios. Malibu attorney Kevin Shenkman notified the city in September of 2020 that their at-large voting system, as currently utilized, is a violation of state law. This means all five council seats are elected from a pool of “at-large” candidates, meaning anyone who lives within the city limits who qualifies for office can run, rather than having residents of regions of the city elect single officials to represent each specific region. Shenkman has since said that if the city does not have single member maps ready by July 1, the city would be sued. Barrios said opposing any redistricting lawsuit has been extremely expensive for other cities who have chosen to legally fight districting. Some have paid settlements near nearing $10 million. Following Shenkman’s notification, the city has consistently met in closed session to discuss the issue, while Galante has been in direct communication with Shenkman, the Malibu attorney confirmed. The after-Christmas meeting, which was recorded on audio tape, not video, and posted nearly a week later, was among the first public meetings to discuss the matter, although the Council has now set three forums, one in January and two in February at which Barrios will facilitate a discussion about the situation with residents. Before the council reorganization in December, Mayor Paulo Morales was appointed by former Mayor Jon Peat to serve alongside him as the only other member of an an ad-hoc subcommittee on redistricting. Peat then denied a request by Marquez to be appointed to the ad-hoc subcommittee despite the fact that Marquez said she has participated in redistricting work on Capitol Hill and has a related doctorate degree. The former Mayor cited the fact that Marquez, serving her first term, might be a candidate for re-election in the next election, and thus bias her thinking, so he refused to appoint anyone but himself and Morales. “Mayor Pete told me that I would not be able to serve on the committee since I would face another election. He said the collective experience of he and Mayor Morales would serve the committee well.” Marquez, at this special Monday meeting, suggested it was perhaps Peat with a conflict of interest. “However, Mayor Peat failed to mention that he had a foot in the game as his wife, Bonnie Peat, will run for city council this coming year,” said Marquez. “Therefore, the [redistricting] ad hoc committee has a bias and, in my eyes, this process is unfair.” Bonnie Peat is currently the President of the Cypress School District Board of Trustees. The ENE has reached out to Mrs. Peat for a comment. In the meeting, Mr. Peat did not respond to Marquez’s assertion. Marquez said she was not able to able to make the reorganization meeting in December because of a fall she sustained in her home. She was upset that at that meeting, the Council discussed redistricting and the newly elected Mayor removed her as the principal delegate to the city on the Orange County Fire Authority. Even if Monday’s meeting was technically legal, said Marquez, sending out documents on Christmas Eve for this special meeting was questionable. “This seems like an ambush,” said Minikus, who suggested Marquez should have “said something earlier.” “I understand your concerns,” Morales told Marquez, “But I [also] understand we’re on a deadline.” Morales then repeated Galante’s comments in saying “there is nothing here that says there is a [CRVA] violation. “It [the claim there is a violation] is something,” said the mayor, “that we are responding to in service to the city.” Citizens for Responsible Development of Cypress, CA January 23 at 7:33 PM · Would You Recuse Yourself? When Valley Vista submitted their bid proposal in 2014, the proposal boasted that Valley Vista Project Director George Briggeman has been intimately involved with the Boys and Girls Club, the Woman’s Club of Cypress, Chamber of Commerce, BRACE of Cypress, and Cypress College through his support. The proposal indicated that this support has continued for over 35 years and that he is familiar with their resources. After a review of all the proposals submitted, Valley Vista was awarded a 10-year contract in September 2014 to start in July 2015. In 2015, the Fair Political Practices Commission fined George Briggeman from Valley Vista Services for his support of City Council candidates in 2012. Two of those individuals were candidates for the Cypress City Council: Rob Johnson and Mariellen Yarc. Should Council Members Johnson and Yarc have recused themselves from the vote to award the initial contract to Valley Vista? I think so. Council Member Jon Peat was elected to the City Council in November 2014. Jon Peat has been on the Board of the Boys and Girls Club since 2013 now serving as 1st Vice Chair. As stated previously, George Briggeman acknowledged having been intimately involved with the Boys and Girls Club for over 35 years as of 2014 which would currently be over 40 years. Mayor Morales and Stacy Berry were also elected in 2014. In 2017, Valley Vista, through George Briggeman, requested an extraordinary adjustment to their contract which included service reductions and a rate increase. The city hired a consultant to review the request. The consultant’s conclusion was that there was no basis for the adjustments requested by Valley Vista but the City Council approved the changes anyway with Council Member Stacy Berry being the only No vote. Both Rob Johnson and Mariellen Yarc termed out in November 2020 with Anne Hertz-Mallari and Frances Marquez elected to replace them. In 2020, Valley Vista came back to the City Council for additional concessions. They wanted to build a trash transfer station and a Compressed Natural Gas facility on the City Yard in order to reduce their costs further. The proposed project was next to a residential area and there was substantial pushback from the residents so the City Council backed off. A controversy did arise in 2021 during the consideration of a two-person subcommittee to review the Valley Vista request for a joint venture or another extraordinary rate adjustment. Then-Mayor Jon Peat proposed appointing himself and newly elected Council Member Anne Hertz-Mallari. Council Member Hertz-Mallari is a long time Director of the Boys and Girls Club of Cypress which is now the Boys and Girls Club of Greater Anaheim and Cypress. At the time the subcommittee was proposed, Council Member Stacy Berry challenged the appointment of Council Member Anne Hertz-Mallari because of her long-time connection to George Briggeman. Responding to that challenge, Council Member Hertz-Mallari acknowledged that she and George Briggeman have known each other for 15 years and he’s donated to Boys and Girls Club events and given them free trash services for 15 years. The effort to reward Valley Vista continues. The requirement by the State for cities to implement an organic waste disposal system has led to yet another review of the Valley Vista agreement. Rather than the proposed revision being limited to the organic waste program, the revisions also included an adjustment increasing the recycling cost because Valley Vista says they are losing money on it. The changes also include a substantial increase to the cap on annual CPI increases and probably the most egregious change is an extension to the contract to 2037. The original contract was a 10-year contract with an allowance for a 2-year extension and 2 one-year extensions. With these new changes, this will end up being a 22-year contract without going out to bid. Neither Council Member Peat nor Hertz-Mallari recused themselves. Would you have recused yourself? The City Council pushed through these proposed contract changes during Thanksgiving week. Starting this process during Thanksgiving week and expecting residents to focus on it during the holidays and a heightened COVID transmission period raises the serious question as to the transparency of these changes. Probably the most glaring cause for concern is that Los Alamitos, which is an adjacent city to Cypress, went out to bid for the new state changes and saw their price go down with only a 7-year contract. In fact, if the changes proposed by the Cypress City Council are ultimately implemented, Cypress residents will pay $21.43 per month which is 54% more than Los Alamitos residents who will pay $13.90 per month. Westminster residents pay $14.75 per month. Given the significant difference in the proposed rate for Cypress residents compared to Los Alamitos and Westminster residents, this contract should be bid out as soon as possible. Since the City Council extended the contract by 2 years in 2017, the current contract expires in 2027. This contract should not be extended to 2037 without a bid. Given Mayor ProTem Hertz-Mallari’s position at the Boys and Girls Club of Greater Anaheim and Cypress and Council Member Peat’s position on the Board of Directors, they should both recuse themselves. Mayor ProTem Hertz-Mallari chose to recuse herself when the City Council allocated COVID funds to the Boys and Girls Club. Why shouldn’t she recuse herself when the City Council is considering substantial contract changes that benefit a company that provides free services and financially supports the organization she works for. Similarly, since Council Member Jon Peat is on the Board of the Boys and Girls Club, he should have recused himself when the City Council allocated funds to the Boys and Girls Club and he should recuse himself from voting on these changes to the Valley Vista contract. While there may be a legal path that allows them to avoid recusing themselves, the question is what should they do to avoid a perception of a financial conflict of interest? 1717 9 Comments 3 Shares Like Comment Share Trash into gold in Cypress? By For Event-News Enterprise - January 26, 2022 0 382 George Pardon By George Pardon When Valley Vista submitted their bid proposal in 2014, the proposal boasted that Valley Vista Project Director George Briggeman has been intimately involved with the Boys and Girls Club, the Woman’s Club of Cypress, Chamber of Commerce, BRACE of Cypress, and Cypress College through his support. The proposal indicated that this support has continued for over 35 years and that he is familiar with their resources. After a review of all the proposals submitted, Valley Vista was awarded a 10- year contract in September 2014 to start in July 2015. In 2015, the Fair Political Practices Commission fined George Briggeman from Valley Vista Services for his support of City Council candidates in 2012. Two of those individuals were candidates for the Cypress City Council: Rob Johnson and Mariellen Yarc. Should Council Members Johnson and Yarc have recused themselves from the vote to award the initial contract to Valley Vista? I think so. Council Member Jon Peat was elected to the City Council in November 2014. Jon Peat has been on the Board of the Boys and Girls Club since 2013 now serving as 1st Vice Chair. As stated previously, George Briggeman acknowledged having been intimately involved with the Boys and Girls Club for over 35 years as of 2014 which would currently be over 40 years. Mayor Morales and Stacy Berry were also elected in 2014. In 2017, Valley Vista, through George Briggeman, requested an extraordinary adjustment to their contract which included service reductions and a rate increase. The city hired a consultant to review the request. The consultant’s conclusion was that there was no basis for the adjustments requested by Valley Vista but the City Council approved the changes anyway with Council Member Stacy Berry being the only No vote. Both Rob Johnson and Mariellen Yarc termed out in November 2020 with Anne Hertz-Mallari and Frances Marquez elected to replace them. In 2020, Valley Vista came back to the City Council for additional concessions. They wanted to build a trash transfer station and a Compressed Natural Gas facility on the City Yard in order to reduce their costs further. The proposed project was next to a residential area and there was substantial pushback from the residents, so the City Council backed off. A controversy did arise in 2021 during the consideration of a two-person subcommittee to review the Valley Vista request for a joint venture or another extraordinary rate adjustment. Then-Mayor Jon Peat proposed appointing himself and newly elected Council Member Anne Hertz-Mallari. Council Member Hertz-Mallari is a long time Director of the Boys and Girls Club of Cypress which is now the Boys and Girls Club of Greater Anaheim and Cypress. At the time the subcommittee was proposed, Council Member Stacy Berry challenged the appointment of Council Member Anne Hertz-Mallari because of her long-time connection to George Briggeman. Responding to that challenge, Council Member Hertz-Mallari acknowledged that she and George Briggeman have known each other for 15 years and he’s donated to Boys and Girls Club events and given them free trash services for 15 years. The effort to reward Valley Vista continues. The requirement by the State for cities to implement an organic waste disposal system has led to yet another review of the Valley Vista agreement. Rather than the proposed revision being limited to the organic waste program, the revisions also included an adjustment increasing the recycling cost because Valley Vista says they are losing money on it. The changes also include a substantial increase to the cap on annual CPI increases and probably the most egregious change is an extension to the contract to 2037. The original contract was a 10-year contract with an allowance for a 2-year extension and 2 one-year extensions. With these new changes, this will end up being a 22-year contract without going out to bid. Neither Council Member Peat nor Hertz-Mallari recused themselves. Would you have recused yourself? The City Council pushed through these proposed contract changes during Thanksgiving week. Starting this process during Thanksgiving week and expecting residents to focus on it during the holidays and a heightened COVID transmission period raises the serious question as to the transparency of these changes. Probably the most glaring cause for concern is that Los Alamitos, which is an adjacent city to Cypress, went out to bid for the new state changes and saw their price go down with only a 7-year contract. In fact, if the changes proposed by the Cypress City Council are ultimately implemented, Cypress residents will pay $21.43 per month which is 54% more than Los Alamitos residents who will pay $13.90 per month. Westminster residents pay $14.75 per month. Given the significant difference in the proposed rate for Cypress residents compared to Los Alamitos and Westminster residents, this contract should be bid out as soon as possible. Since the City Council extended the contract by 2 years in 2017, the current contract expires in 2027. This contract should not be extended to 2037 without a bid. Given Mayor ProTem Hertz-Mallari’s position at the Boys and Girls Club of Greater Anaheim and Cypress and Council Member Peat’s position on the Board of Directors, they should both recuse themselves. Mayor ProTem Hertz-Mallari chose to recuse herself when the City Council allocated COVID funds to the Boys and Girls Club. Why shouldn’t she recuse herself when the City Council is considering substantial contract changes that benefit a company that provides free services and financially supports the organization she works for. Similarly, since Council Member Jon Peat is on the Board of the Boys and Girls Club, he should have recused himself when the City Council allocated funds to the Boys and Girls Club and he should recuse himself from voting on these changes to the Valley Vista contract. While there may be a legal path that allows them to avoid recusing themselves, the question is what should they do to avoid a perception of a financial conflict of interest? Editors note: George Pardon is Director of the Citizens for Responsible Development of Cypress. Time to protest the Cypress trash proposal By David N. Young - January 13, 2022 Valley Vista Services gets huge financial boost from Cypress Council. Courtesy photo By George Pardon First of all, I want to commend the Los Alamitos City Council for obtaining a much better trash services agreement by going out to bid compared to the deal the Cypress City Council negotiated with the current trash services provider, Valley Vista. Unless 50% plus parcels in Cypress send in a written protest to the Cypress City Clerk by 5 PM on January 24, Cypress residents will experience a 32% increase in their rate paying $21.43 per month compared to Los Alamitos residents paying $13.90 per month. Cypress residents can also expect an additional increase in April based on the consumer price index. With the new Los Alamitos agreement, residents will also get 4 bulky item pick- ups a year and they allow 4 items with each pick-up and a quarterly Household Hazardous pick up. This is compared to Cypress residents getting 2 bulky item pick-ups a year with one item equaling one pick-up. George Pardon If you don’t think Cypress residents are getting an optimal deal, the only option at this point is to send a protest letter to the Cypress City Clerk. At a minimum, the letter must include the following information: a) address or assessor parcel numbers of the property subject to the proposed rate increases, b) the name of the owner of the property (or tenant if applicable) and whether the protester is an owner or tenant of the property, c) a statement that the party is protesting the rate increases, and d) the protester’s signature. Only one protest per parcel will be counted. The letter needs to be addressed to City Clerk, Cypress City Hall, 5275 Orange Avenue, Cypress, California 90630. If the proposed changes to the agreement with Valley Vista are approved, the agreement will be extended until 2037. To extend this contract from the original 10 year term to a 22 year term without another bid process seems far in excess of the original intent especially given the concessions that have already been given to Valley Vista in previous contract revisions. Given the significant value the Los Alamitos City Council has recently achieved for their residents through a bid process, it seems that it would be in the best interest of Cypress residents to bid this contract allowing the current contract to end at its current term ending in 2027 which already includes the 2 year extension previously granted to Valley Vista. Residents need to protest this increase to avoid the proposed changes to the agreement. Emails were sent to the City Council and the City Manager on December 16 and 30 and again on January 4. The emails were sent asking if I was missing something in my read of the Los Alamitos agreement because I didn’t want to spread misinformation. I also stated that unless I hear something to the contrary, I will presume my assessment is correct when I distribute the information to the residents. The response I received from the City Manager was that my assessment of the Cypress and Los Alamitos refuse franchises is so careless that it detracts from public discourse. The fact that I received a response from any of my emails to the city was a surprise although the response received didn’t provide clarity. If anyone has reviewed the agreements and can justify why Cypress should commit to Valley Vista for another 15 years without going to bid, I would love to hear from you at georgepardon@gmail.com. George Pardon Citizens for Responsible Development From:jonpeat@att.net To:Alisha Farnell Subject:FW: 5-2018-Spring%3b-Aziz-Johnson-Markman-California-Voting-Rights-Act-Recent-Legislation-and-Litigation- Outcomes-Indiv.pdf Date:Thursday, June 2, 2022 10:10:23 AM Attachments:5-2018-Spring%3b-Aziz-Johnson-Markman-California-Voting-Rights-Act-Recent-Legislation-and-Litigation- Outcomes-Indiv.pdf Untitled attachment 00156.txt Alisha, This second email I sent to myself with an attachment from a session at the 2018 League of California Cities conference. The session was about the legislation and litigation related to the California Voting Rights Acts. Jon -----Original Message----- From: Jon Peat <jonpeat@att.net> Sent: Monday, September 27, 2021 8:42 AM To: Jon Peat <jonpeat@att.net> Subject: 5-2018-Spring%3b-Aziz-Johnson-Markman-California-Voting-Rights-Act-Recent-Le gislation-and-Litigation-Outcomes-Indiv.pdf League of California Cities® 2018 Spring Conference Paradise Point, San Diego The California Voting Rights Act: Recent Legislation & Litigation Outcomes Thursday, May 3, 2018 General Session; 9:00 – 10:30 a.m. Youstina N. Aziz, Richards, Watson & Gershon Douglas Johnson, President, National Demographics Corporation James L. Markman, City Attorney, Brea, La Mirada, Rancho Cucamonga and Upland DISCLAIMER: These materials are not offered as or intended to be legal advice. Readers should seek the advice of an attorney when confronted with legal issues. Attorneys should perform an independent evaluation of the issues raised in these materials. Copyright © 2018, League of California Cities®. All rights reserved. This paper, or parts thereof, may not be reproduced in any form without express written permission from the League of California Cities®. For further information, contact the League of California Cities® at 1400 K Street, 4th Floor, Sacramento, CA 95814. Telephone: (916) 658-8200. League of California Cities® 2018 Spring Conference Paradise Point, San Diego Notes:______________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ The California Voting Rights Act: Recent Legislation & Litigation Outcomes Prepared by: James L. Markman Youstina N. Aziz 714.990.0901 And Dr. Douglas Johnson 310.200.2058 2 The California Voting Rights Act: Recent Legislation & Litigation Outcomes You are sitting at your office on a Thursday afternoon, and the city manager sends you an email letting you know that the city received a demand letter about a voting rights issue. You review the demand letter and realize that it is a letter from a prospective plaintiff’s attorney alleging that the city’s election system is in violation of the California Voting Rights Act (“CVRA”) and threatening litigation if the city does not voluntarily change its elections system. What do you do? At least 88 cities have made the change to by-district elections and two more, the City of Goleta and the City of Carpinteria, agreed to make the change for 2022. Other cities, such as the City of San Clemente have decided to put the matter on the 2018 ballot for voters’ approval. Approximately eighteen other cities are in some form of legal dispute but have not yet decided to make the change to by-district elections. For context, only 28 cities employed by-district elections prior to passage of the CVRA. Cities are not the only public entities susceptible to a CVRA challenge. Thirty two community college districts, over 165 school districts, and at least 12 other special districts have made the change to by-district elections. This paper provides an overview of the CVRA and recent developments in both legislation and litigation surrounding the CVRA. It summarizes the options cities have in responding to CVRA demand letters, the process cities are required to go through in order to change their election system, and issues that have arisen in the process of jurisdictions transitioning from at-large to district-based elections. This paper focuses on the process for changing to district-based elections for general law at-large cities; the process may be slightly different for charter cities depending on whether they have to amend their charter to change their election system. I. Introduction The CVRA, Elections Code Sections 14025-14032, was enacted to implement the California constitutional guarantees of equal protection and the right to vote.1 The CVRA provides a private right of action to members of a protected class where, because of “dilution or the abridgment of the rights of voters,” an at-large election system “impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.”2 The CVRA defines a “protected class” broadly as a class of voters who are members of a race, color, or language minority group.3 To establish a violation under the CVRA, a plaintiff must show that “racially polarized voting” occurs in elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters.4 Racially polarized voting means voting in which there is a difference in the choices of candidates or other electoral choices that 1 Elec. Code § 14031. 2 Elec. Code §§ 14027, 14032. 3 Elec. Code § 14026(d). 4 Elec. Code § 14028(a). 3 are preferred by voters in a protected class and the choices of the voters in the rest of the electorate.5 The occurrence of racially polarized voting is determined by examining (1) results of elections, with more weight given to elections in which at least one candidate is a member of a protected class, or (2) elections involving ballot measures or other electoral choices that affect the rights of the members of the protected class.6 While modeled after the federal Voting Rights Act of 1965 (“FVRA”), the CVRA lowers the threshold required to establish a voting rights violation. For example, unlike the FVRA, a protected class does not have to be geographically compact or concentrated to allege a violation of CVRA.7 Moreover, proof of intent on the part of the voters or elected officials to discriminate against a protected class is not required.8 The CVRA also eliminates the “totality of circumstances” test set forth in the FVRA, precluding introduction of other evidence as to why preferred candidates of the protected class lost elections. The deletion of the totality of circumstances factors makes CVRA litigation purely a statistical exercise. Because of that lower threshold of proof, no jurisdiction has prevailed in a CVRA action as of the time this paper was written. Lacking an example of a successful defense, and because of the enormous financial cost involved in defending against – much less losing – such claims, and the majority of jurisdictions that receive a demand letter change to by-district elections without analyzing their election system to determine whether there is, in fact, racially polarized voting. The short time frame jurisdictions have in order to implement district-based elections under Elections Code Section 10010 also pushes jurisdictions toward by-district elections. II. Recent Legislation a. Ability to Transition to District-Based Elections by Ordinance Before January 1, 2017, Government Code Section 34886 allowed cities with populations less than 100,000 to transition to district-based elections by ordinance. Cities with populations greater than 100,000 were required to place the issue on the ballot for voters to approve the transition. The population cutoff created an issue for larger cities that received demand letters to change their election system. For example, the City of Rancho Cucamonga received a letter on December 23, 2015 alleging that the city’s election system was in violation of the CVRA and urging the city to voluntarily change its at-large system of electing council members or face litigation. Because Rancho Cucamonga’s population was greater than 100,000, the city had to place the measure on the ballot for voters’ approval. After the city began analyzing its election system, but before it was able to place the issue on the November 2016 ballot, a CVRA action was filed against the city on March 10, 2016. After the voters approved the transition to district- based elections, the plaintiffs refused to dismiss the action alleging that the election system adopted by the city was flawed. Recent legislative amendments to Government Code Section 34886 allow a city, regardless of population, to adopt an ordinance establishing district-based elections without 5 Elec. Code § 14026(e). 6 Elec. Code § 14028(b). 7 Elec. Code § 14028(c). 8 Elec. Code § 14028(d). 4 being required to submit the ordinance to the voters for approval. The elimination of the population cutoff in Section 34886 helps large cities avoid the scenario that occurred in Rancho Cucamonga by giving them the ability to adopt district-based elections by ordinance. Still some jurisdictions contemplate placing the issue on the ballot for voters’ approval after they receive a letter alleging that the city’s at-large election system violates the CVRA. If that is the case, the city should work with the potential plaintiff to reach a settlement to that effect. If a city decides to place the measure on the ballot, there is a risk that the voters will turn it down, leaving the city to choose between facing litigation or acting contrary to the voters’ decision. b. Amendments to Elections Code 10010 -“Safe-Harbor Provision” Following efforts to provide some protection to jurisdictions from the costs involved in CVRA-related litigation, the California Legislature amended Section 10010 of the Elections Code to include a “Safe-Harbor” provision that would give jurisdictions the opportunity to change their election system once they receive a demand letter, while capping the amount of attorney’s fees and costs that are recoverable by a prospective plaintiff(s). Effective January 1, 2017, Elections Code Section 10010 requires a prospective plaintiff to send a written notice to the clerk of the city asserting that the city’s method of conducting elections may violate the CVRA.9 Section 10010 puts a 45-day stay on a prospective plaintiff’s ability to bring an action allowing the city to adopt a resolution outlining its intention to transition from at-large to district-based elections.10 If the city begins the process of switching to districts before receiving a notice letter or within 45 days of receipt of a notice and adopts a resolution to that effect, under Section 10010, a potential plaintiff cannot commence an action within 90 days of the resolution’s passage.11 After adopting the resolution of intention, the city is required to hold two public hearings over a period of no more than 30 days before drawing draft maps.12 During those hearings, the public is invited to provide input regarding the composition of the districts.13 After the city’s demographer draws the draft maps, the city must publish at least one draft map and, if members of the governing body of the city will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections.14 The city then holds at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft maps and the proposed sequence of elections.15 The city has to publish the draft maps and sequencing at least seven days before those hearings.16 In short, a jurisdiction receiving a CVRA demand letter has 45 days to declare their intent to change their election system and then 90 days after that declaration to adopt the change.17 If 9 Elec. Code § 10010(e)(1). 10 Elec. Code § 10010(e)(2)-(3). 11 Elec. Code § 10010(e)(3)(B). 12 Elec. Code § 10010(a)(1). 13 Id. 14 Elec. Code § 10010(a)(2). 15 Id. 16 Id. 17 Elec. Code § 10010(e)(3)(A)-(B). 5 the city misses either of those deadlines, it could find itself in court and facing attorney fee demands well into the six or even seven figures. Elections Code 10010 also offers some protection to jurisdictions in terms of exposure to a prospective plaintiff’s attorneys’ fees. If the jurisdiction meets the deadlines outlined above, the prospective plaintiff who sent the demand letter may only recover up to $30,000 in attorneys’ fees and costs from the city.18 The prospective plaintiff has to make the demand for reimbursement of costs with 30 days of the ordinance’s adoption.19 If more than one prospective plaintiff requests a reimbursement of attorneys’ fees and costs, the city shall reimburse the prospective plaintiffs in the order in which they sent the demand letter, but the cumulative amount of reimbursement to all prospective plaintiffs is capped at $30,000. c. Application of the Safe Harbor Provision Back to your city: the first step after receiving the demand letter is to calculate 45 days from the date of the city’s receipt. The date the letter is received is crucial because the city has 45 days of receipt of the letter to determine whether to change its elections system. If the city adopts a resolution by that date outlining its intention to transition from at-large to district-based elections, the prospective plaintiff is precluded from commencing an action under the CVRA for 90 days during which time the city goes through the process set forth above for transitioning to districts. Second, you should place the matter on the next closed session agenda to inform the council of receipt of the demand letter and get direction regarding how they would like to proceed. Because of the 45-day deadline, you have limited opportunity to place the matter on closed session. Due to the complexity of the CVRA and related legislation, the city council may need more than one closed session to discuss the matter. You may also hold special closed sessions to discuss the matter, if necessary. Third, because the council will most likely want to assess the accuracy of the allegations in the demand letter and the potential exposure, the jurisdiction’s legal counsel should engage a demographer once you have received the demand letter. The demographer is instrumental in two aspects. First, if the city council decides to conduct a racially polarized voting analysis prior to determining whether to transition to district-based elections, the demographer conducts the analysis and presents it to the city council. Second, if the city council decides to initiate the process of transitioning to district-based elections, the demographer creates the district maps for the city council’s consideration. In engaging the demographer, the city should consider retaining him or her through its city attorney in order to protect their work product to the extent possible. Fourth, you should retrieve the election results for the city’s most recent elections. Often times the demand letter contains allegations that are not entirely accurate because a prospective plaintiff’s attorney is not familiar with the city’s election history. For example, with some cities, prospective plaintiffs cited the absence of minorities on the city council as evidence of racially polarized voting. Because a prospective plaintiff relied on surnames to determine whether 18 Elec. Code § 10010(f)(3). 19 Elec. Code § 10010(f)(1). 6 minority candidates were elected to city council, plaintiff’s allegations failed to account for minority candidates who do not necessarily have minority surnames, such as a minority candidate who changed his or her last name after marriage. Reviewing the city’s election history to fact-check the allegations in the demand letter helps the city council make an informed decision. d. District-Drawing Process If the city council decides to proceed with the transition to district-based elections after analyzing the issue, the city council should adopt a resolution setting forth its intention to change its election system. Subsequently, the city must hold at least four public hearings before holding a hearing at which to vote on the ordinance establishing district-based elections. Two of the public hearings must be held before drawing the draft map(s). During those two public hearings, the city council would receive public input regarding the composition of the districts. Usually, these public hearings are held during regularly scheduled city council meetings; however, the city can also schedule them during special meetings. While Elections Code Section 10010 does not set forth the notice requirement for the first two public hearings, it is prudent for the city to apply the same notice requirement in Section 10010 for the second two public hearings which requires that any draft maps be published at least seven days before the hearing at which they would be considered. The city council cannot start the map drafting process without first holding those two public hearings. The first two hearings can be noticed in a single published hearing notice. The focus of the first two hearings is on answering resident questions about the process and identifying the neighborhoods and communities of interest that should be used as the ‘building blocks’ to develop the draft district maps. Issues such as whether a community wants to be united in one district or included in multiple districts are often debated at this time. Most residential neighborhoods tend to lean toward being united in one district, while downtown business districts, port or industrial areas, and large active living senior communities typically lean toward having multiple representatives. After the first two public hearings are held, the demographer drafts at least one draft map, but often times multiple maps are drawn. Interested residents may also submit maps, either using their own means or using tools provided by the demographer. Section 10010 requires that the first version of a draft map be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, it must be published and made available to the public for at least seven days before being adopted. After holding the four public hearings, the city council can then vote to approve or defeat the ordinance establishing district-based elections. There are various ways residents can be encouraged and empowered to propose draft maps (in addition to the map(s) drafted by the City’s official demographer). Depending on the level of public interest, the Council may have only the demographer’s maps to consider, or as many as 20 or 40 resident-drawn proposals. Experienced demographers can provide tools to empower residents to draw maps as well as assistance guiding the city council through reviewing the pool of maps and arriving at a final selection. 7 The seven-day draft map publication provisions of Section 10010(a)(2) complicate the consideration of draft maps. The public is not barred from proposing new maps at each hearing, but the city council is barred from “considering” any new map that was not published at least seven days in advance. Section III. a., infra, discusses the publication requirement set forth in Section 10010. The timeline set forth in Elections Code 10010 does not leave much room for cities to conduct very robust community outreach programs regarding the city’s transition to district- based elections. While not required under Elections Code Section 10010, cities should still make the effort to hold community meetings and forums to get feedback from the public and answer questions regarding the process. Extensive outreach and notification about the transition to district-based elections will reduce the voters’ surprise and posible objections when the first by- district election is held. e. Application of Process to Charter Cities A charter city would need to review its charter to determine whether a charter amendment is necessary to change the city’s election system and whether the proposed charter amendment would be placed on the ballot. If the jurisdiction is a charter city, there is a preliminary question of whether the public hearing requirements of Elections Code 10010 would apply. On the one hand, Section 10010 specifically states that “[a] political subdivision that changes from an at- large method of election to a district-based election . . . shall do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat an ordinance establishing district based elections . . . .” (Emphasis added). On its face, Section 10010 applies only when a city changes its election system by ordinance. At the same time, the CVRA explicitly provides that it applies to charter cities,20 and Section 10010 specifically references the CVRA and incorporates some of the CVRA’s provisions.21 In placing a charter amendment on the ballot, a charter city needs to determine whether to apply the requirements set forth in Elections Code Section 10010. While there are no binding court decisions on the issue, it is prudent for a charter city to follow the process set forth in Elections Code Section 10010 to avoid potential challenges to its process. The city also needs to determine whether to hold the public hearings before or after it places the charter amendment on the ballot. On the one hand, there is an argument that the public hearings must be held before a charter amendment is placed on the ballot, because if the proposed amendment passes, that establishes district-based elections for the city council. On the other hand, because Section 10010 states specifically that it applies to an ordinance establishing district-based elections, there is an argument that a charter amendment is not an ordinances that is subject to the requirements set forth in that section. A charter city should review its municipal laws to determine the process set forth therein for changing its election system and potential issues that may arise in attempting to comply with the requirements of Elections Code Section 10010. 20 Elec. Code § 14026(c). 21 See Elec. Code § 10010(b), (d). 8 III. Notable Issues There are a number of unresolved issues surrounding both the CVRA and the process of transitioning to district-based elections. While this paper does not attempt to discuss all the issues, it highlights a few topics that are important to keep in mind. a. Notice and Publication Section 10010(a)(2) requires that maps be “published at least seven days before consideration at a hearing,” but it does not define “publish” or specify how the maps are to be “published.” The Black’s Law Dictionary definition for “publish” is “to distribute copies (of a work) to the public.” Other provisions of the Elections Code requiring publication of materials specify that they be published in newspapers of general circulation with the alternative being posting the material conspicuously in three public places in the city.22 While some cities have been able to publish their maps in newspapers of general circulation, smaller cities that have a local newspaper are often restricted by the newspaper’s timelines since they are published once a week. And cities that successfully encouraged public participation in the drafting of maps have ended up with more than twenty draft maps, making publishing all of them in a newspaper prohibitively expensive. Many cities have resorted to publishing notices of the public hearings in newspapers and listing a number of locations throughout the city where the maps will be available. If the City has a website that it maintains, it can also post the maps on its website and include that link in the notice. Another issue to keep in mind is the federal Voting Rights Act requirement that election material be translated in various languages depending on the county where the election is held. For example, in Orange County, election material must be translated into at least four languages: Spanish, Chinese, Korean, and Vietnamese.23 While the notices and other materials concerning a city’s transition to district-based elections does not relate to a specific election, the city should consider translating the materials concerning the public hearings in languages that are prevalent in that city. b. At-Large Mayor Position Under California Law There is a question of whether a by-district election system with an at-large mayor qualifies as an at-large election system that is vulnerable to a CVRA challenge. Only at-large election systems are susceptible to a CVRA challenge.24 However, the CVRA’s definition of an at-large method of election is somewhat broad and misleading. Under the CVRA, an “at-large method of election” encompasses not only a system in which the voters of the entire jurisdiction elect the members of city council, but it also encompasses from-district election systems (election systems in which the candidates are required to reside in districts but are elected by the 22 See, e.g., Elec. Code §§ 9205, 12110-12111. 23 https://www.ocvote.com/voting/translatedelectionmaterials/, last visited: April 11, 2018. 24 Elec. Code § 14027. 9 voters of the entire city) and combination systems.25 A combination system is an elections system that “combines at-large elections with district-based elections.”26 The combination system can include a system in which a primar y election may be conducted “by-district”, but the general election is conducted “from” those same districts, e.g., the top two vote winners in the primary in each district run for election “at-large” in the general election. A combination system may also be an election system in which some seats are elected at large and some are elected by-district. For example, a jurisdiction that has a seven-member city council with three members elected at-large and four members elected by-district is a combination system. Based on the plain language of the CVRA, however, a plaintiff can claim that a by-district election system with an at-large mayor qualifies as a “combination system.” While the issue of whether a by-district election system with an at-large mayor qualifies as an at-large system has arisen in previous CVRA cases, there are no binding, appellate decisions on the issue. In previous CVRA cases, plaintiffs have made the argument that the election of even one member of a city council at-large, regardless of his or her title, makes the election system at-large and subject to challenge under the CVRA. For example, in the action involving the City of Rancho Cucamonga, the city placed the question of whether it should change its election system from at-large to a district-based system with an at-large mayor. Even after the ballot measure passed, plaintiffs refused to dismiss the case, arguing in part, that the city’s new election system remains an at-large system that violates the CVRA.27 The parties in that case reached a settlement; therefore, the question was not decided by a court. Notably, the settlement agreement in the Rancho Cucamonga case kept the at-large mayor position intact. In the case of Jauregui v. City of Palmdale, the trial court found that the mayor of Palmdale is a separately elected office and noted that Government Code Section 34900 expressly authorizes that form of government.28 The court noted that while the mayor is a voting member of the council, he or she has additional duties, powers, and obligations. Therefore, the court found that the mayor in that case was a separately elected office, and the elimination of this office was not an appropriate remedy to address the CVRA violation. Other provisions of California law provide support for the view that a by-district election system with an at-large mayor is a district-based election system, not an at-large system that is vulnerable to a CVRA challenge. The Government Code specifically allows for an at-large mayor position on the city council. Effective January 1, 2017, Government Code Section 34886 provides that the council “of a city may adopt an ordinance that requires the members of the legislative body to be elected by district or by district with an elective mayor, as described in subdivisions (a) and (c) of Section 34871, without being required to submit the ordinance to the voters for approval.” 25 Elec. Code § 14026(a). 26 Elec. Code § 14026(a)(3). 27 Southwest Voter Registration Education Project v. City of Rancho Cucamonga, San Bernardino Superior Court Case No. CIVDS 1603632. 28 Jauregui v. City of Palmdale, Los Angeles Superior Court Case No. BC483039, Final Statement of Decision dated December 23, 2013. 10 Subdivisions (a) and (c) of Government Code Section 34871 in turn provide: [T]he legislative body may submit to the registered voters an ordinance providing for the election of members of the legislative body in any of the following ways: (a) By districts in five, seven, or nine districts . . . [¶] (c) By districts in four, six, or eight districts, with an elective mayor . . . . Section 34886 states that “[a]n ordinance adopted pursuant to this section shall include a declaration that the change in the method of electing members of the legislative body is being made in furtherance of the purposes of the California Voting Rights Act of 2001.” (Emphasis Added). Section 34886 provides support for the position that a by-district system with an at- large mayor is not susceptible to CVRA violation because that Section specifically allows the adoption of that election system “in furtherance of the purposes” of the CVRA. Nonetheless, the broad definition of at-large election systems in the CVRA can provide the basis for a prospective plaintiff to challenge a jurisdiction’s adoption of an at-large mayor position. The risk of such a challenge is higher if creating an at-large mayor seat would potentially dilute the voting power of a protected class.29 A jurisdiction’s decision to establish an at-large mayor seat would involve it adding a district it otherwise wouldn’t have or eliminating a district that it would otherwise have. Depending on the jurisdiction’s demographics and concentration of members of protected classes, dividing the city into more or less districts can affect the voting power of the city’s protected class(es). If changing the number of districts decreases the voting power of a protected class in the city, that would bolster a prospective plaintiff’s argument that the city’s decision to create an at-large mayor position violates the CVRA. c. District Elections Ordinance and the Power to Petition for Referendum Article 2, Section 9(a) of the California Constitution provides that “[t]he referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the state.” Based on the plain language of that provision, districting or reapportionment ordinances do not fall under any of these exceptions because they are not a statute calling elections; rather, the ordinances set forth the system of election and the conduct of the elections in the future. In dicta, the court in Assembly of State of Cal. v. Deukmejian, 30 Cal.3d 638, 654 (1982) noted that “[w]hile it is obvious that a reapportionment statute relates to elections, it is equally clear that such statutes do not call elections.” That case concerned a writ of mandate challenging the placement on the ballot of referenda challenging the state’s reapportionment statutes, and the Assembly, State Senate, and Congressional redistricting maps were successfully referended in 1982. In Vandermost v. Bowen, 53 Cal.4th 421, 437 (2012), the court noted that “if a referendum that is directed at a newly adopted redistricting map qualifies 29 The CVRA defines a “protected class” as “a class of voters who are members of a race, color, or language minority group, as this class is referenced and defined in the federal Voting Rights Act of 1965 (52 U.S.C. Sec. 10301 et seq.).” Elec. Code § 14026(d). 11 for the ballot, triggering a stay of the new redistricting map pending the electorate’s vote on the referendum, this court has the responsibility of determining which voting district map should be used for the upcoming interim electoral cycle.” (Internal citations omitted). In Ortiz v. Board of Supervisors, 107 Cal.App.3d 866, 872 (1980), the court stated that “[c]hanges in supervisorial district boundaries is a legislative function and thus subject to the referendum.” (Internal citations omitted). Even though these cases discuss reapportionment or redistricting plans, the same general principles would apply to ordinances establishing district elections because they do not fall under any of the exceptions set forth in Article 2, Section 9(a) of the Constitution, and districting ordinances are similar to reapportionment statutes in that while they relate to elections, they do not “call elections.” Therefore, an ordinance establishing district-based elections would ordinarily be effective 30 days after adoption.30 In the past, perspective plaintiffs have made the argument that a local ballot measure cannot contravene state law (such as the CVRA) or policy, nor can a local ballot measure contravene the state's delegation of power to a local governing body. That argument also relies on the fact that California law was amended effective Jan. 1, 2017 to delegate the power to adopt district elections to city councils. However, there is nothing in the Elections Code that prevents a city from deciding to place the issue on the ballot for its voters, despite having the authority to change its election system by ordinance. Charter cities whose charters specify at-large elections must decide whether CVRA overrides the Charter or if a public vote on a charter amendment is necessary. Making the ordinance effective thirty days after adoption creates an opportunity for referendum. If a petition for referendum is filed, however, and the matter has to be placed on the ballot, the city may face legal action by a prospective plaintiff claiming that the city’s election system violates the CVRA. There seems to be a gray area in the law and a need to balance between the power to petition for referendum and the need to apply state law. IV. Litigation Update a. Southwest Voter Registration Education Project v. City of Rancho Cucamonga On December 23, 2015, the City of Rancho Cucamonga received a demand letter alleging violation of the CVRA. After receiving the letter, the city began analyzing the issue. On March 10, 2016, plaintiff Southwest Voter Registration Education Project31 filed an action against the city alleging that the city’s at-large election system violated the CVRA.32 On May 4, 2016, the City Council adopted a resolution submitting the question of district elections to the voters at the regular municipal election on November 8, 2016. The city’s electorate approved the measure at the November 2016 election. 30 Gov. Code § 36937. 31 The plaintiff subsequently amended its complaint to add an individual plaintiff to the action. 32 Southwest Voter Registration Education Project, et al. v. City of Rancho Cucamonga, San Bernardino Superior Court Case No. CIVDS1603632. 12 Nonetheless, the plaintiffs pressed forward with the action on the ground that the adopted by-district election system with an at-large mayor was an at-large election system that was subject to the CVRA. The plaintiffs also challenged the map that the city’s voters approved as part of the measure. In November of 2017, the parties settled the action, and the only remaining issue to be decided in arbitration is plaintiffs’ recovery of attorneys’ fees from the city. The settlement agreement kept in place the election system approved by the voters during the November 2016 election. Pursuant to the settlement agreement, the parties shall work on adjusting the district map following the 2020 federal census. b. Pico Neighborhood Association, et al. v. City of Santa Monica On April 12, 2016, plaintiffs Pico Neighborhood Association, Maria Loya, and Advocates for Malibu Public Schools filed an action against the City of Santa Monica alleging, among other things that the city’s election system violates the CVRA.33 As of the date of drafting this paper, the case is set for trial on July 30, 2018. On March 29, 2018, the City of Santa Monica filed a motion for summary judgment, or in the alternative, summary adjudication, on the ground that expert demographic analysis proves that no constitutionally or statutorily permissible remedy could enhance the Latino voting strength in the city. The city argues, therefore, that plaintiffs cannot meet their burden of demonstrating that an electoral scheme other than the city’s current system would enhance Latino voting power. Based on the city’s pleadings, the city’s Latino population constitutes roughly 13 % of the city’s citizen voting age population, and not a single voting precinct is majority-Latino. Therefore, the city argues, a district-based election system would dilute, not enhance, Latino voting strength. The city contends that a proof of racially polarized voting alone is not sufficient to establish a violation of the CVRA; rather, the plaintiff must show that the at- large election system has diluted the minority group’s vote. Alternatively, the city argues that the remedy plaintiff seeks—establishment of district- based elections—is not a constitutional remedy because any court order implementing district- based elections would separate voters on the basis of race. Such a remedy, the city argues, has to be narrowly tailored to accomplish a compelling state interest. The city argues that any district that attempts to group the city’s Latino population in one district would be highly irregular in share that it would constitute racial gerrymandering. The city is also seeking summary judgment on plaintiffs’ claim for violation of the Equal Protection Clause on the ground that plaintiffs cannot draw a connection between the city’s at- large system of election and any impact on Latino voting power in the city. The city’s motion is currently set for hearing on June 14, 2018. 33 Pico Neighborhood Association, et al. v. City of Santa Monica, Los Angeles Superior Court Case No. BC616804. 13 c. Higginson v. Xavier Becerra, et al. On October 4, 2017, plaintiff Don Higginson, a former mayor of the City of Poway, filed a federal action challenging the constitutionality of the CVRA.34 The action was filed against Attorney General Xavier Becerra and the City of Poway after the City adopted district-based elections in response to a demand letter. The plaintiff alleged a cause of action under 42 U.S.C. §§ 1983 and 1988 for violation of his rights under the Fourteenth Amendment and alleged that the CVRA and the city’s adopted map violated the equal protection clause. The plaintiff sought an order declaring that the CVRA and the district map adopted by the city were unconstitutional and enjoining their enforcement and use. Subsequently, on October 19, 2017, the plaintiff filed a motion for a preliminary injunction to temporarily enjoin the Attorney General from enforcing the CVRA and the city from using the district-map for elections during pendency of the action. The city took a neutral position in the litigation. On November 22, 2017, the Attorney General filed a motion to dismiss the claim asserting that the plaintiff lacked standing to bring the action and that he failed to state a claim upon which relief can be granted. The court granted the Attorney General’s motion to dismiss on the ground that the plaintiff lacked standing to bring the action, and there was no subject matter jurisdiction. The court found that: (1) plaintiff has failed to plead facts to demonstrate that his injury is “fairly traceable” to requirements imposed on the City by the CVRA; (2) the complaint did not allege any existing or threatened enforcement action under the CVRA by the Attorney General or other state agency which motivated the city’s switch to by-district elections; and (3) plaintiff did not allege facts supporting an inference that the decision to adopt by-district elections was motivated by an effort to address racially-polarized voting in the City’s at-large elections or an effort to address a CVRA violation because the City stated during the process that this was a business decision to avoid litigation. The court also dismissed the case as to the City for the same reasons. Based on the court’s decision with respect to the motion to dismiss, the court denied the preliminary injunction motion, noting that it cannot conclude that plaintiff has demonstrated a likelihood of success on the merits in light of the determination that the complaint failed to allege sufficient facts to establish subject matter jurisdiction. On April 6, 2018, the plaintiff filed a notice of appeal in the Ninth Circuit.35 V. Conclusion While the constitutionality of the CVRA is currently being challenged in both federal and state courts, cities and other jurisdictions with an at-large election system remain susceptible to 34 Higginson v. Xavier Becerra, et al., United States District Court for the Southern District of California, Case No. 3:17-CV-02032-WQH-JLB. 35 Higginson v. Becerra, et al., 9th Cir. Case No. 18-55455. 14 receiving a CVRA demand letter. Elections Code Section 10010 provides a safe harbor for cities and other jurisdictions that decide to abide by its timeline and transition to district-based elections once they receive a demand letter. The process for charter cities may vary depending on the charter provisions that govern elections and charter amendments as well as the application of Section 10010 in light of the cities’ municipal laws. 1 2 3 4 5