Drawing the lines
Like it or loathe it, California’s Voting Rights Act is a force to be reckoned with
By:
Carol Brydolf
California’s groundbreaking Voting Rights Act has generated some pretty negative press in recent years. Writing recently in a Sacramento-area news weekly that’s widely read in the Capitol, one commentator went so far as to ask whether the law wasn’t more of a “fee-generator for lawyers” than an instrument for ensuring that underrepresented voters have a say in governing their cities, hospitals, counties, community colleges and schools.
An op-ed in the spring 2009 issue of CSBA’s California Schools magazine by voting rights experts Marguerite Leoni and Chris Skinnell was equally harsh. “The act is no model of legal draftsmanship; its language is unclear and contradictory,” lamented the pair, both attorneys.
Enacted in 2003, the law is designed to promote political representation of diverse communities. It approaches this goal by allowing plaintiffs to sue to get rid of “at-large” elections in which all voters in a given jurisdiction—a school district, say—cast ballots for every seat on a governing board. The law promotes “by-trustee-area” elections to subdivide municipalities, school districts or counties into “trustee areas,” giving minority voters a better chance of electing candidates of their choice. Candidates must live in the area they are competing to represent, and they are elected only by voters in that area, rather than by voters throughout the community as a whole.
The CVRA—not to be confused with the landmark federal Voting Rights Act of 1965—is based on the assumption that at-large elections often put “voters who are members of a race, color or language minority group” at a political disadvantage, making it difficult or impossible for them to elect the candidates they prefer because they are consistently outvoted by voters elsewhere in the jurisdiction.
In a letter to then-Gov. Gray Davis, who signed the CVRA into law in 2002, civil rights attorney Steve Reyes explained why the law is so important.
“Although California has already become a majority-minority state, Latino political representation has not kept pace with the staggering growth of the Latino community,” Reyes wrote. “This stark disparity underscores the continued need for measures, legislative or otherwise, to help governing bodies of local government better reflect the communities they serve.”
The issue of voting rights is emotionally charged, dealing as it does with changing demographics, racial politics and election systems. This would be a potent mix in the best of times, but with school district and other public agency budgets pushed to the limit, it’s especially volatile now.
Thanks to generous provisions in the law—which expands upon rights conferred in federal legislation and was written in close consultation with some of the attorneys who have dedicated themselves to enforcing it—a handful of school districts have found themselves on the losing end of costly legal challenges.
“This is the most aggressive voting rights law in the country,” says political consultant Paul Mitchell, president of Redistricting Partners, a company that has helped a number of public agencies comply with the voting rights law and is hard at work on a redistricting project for the Los Angeles Unified School District. “It’s much easier to bring a case and much easier to prove a case and collect damages.”
“Clearly the intent is to empower minority voters,” he adds. “But the law is written in such a way that makes it very easy to sue a district.”
More than 90 percent of California’s school districts elect governing boards using at-large systems, so the law has significant implications for public schools.
There’s been plenty of grumbling about what some consider the law’s more extreme provisions, and apprehension about the expense and potential impacts of changing election rules. To determine whether they risk violating the law, most districts that use at-large election systems will need to hire expert help to analyze voting records and demographic data. They’ll need to draw trustee-area boundaries if the numbers show evidence of what the law calls “racially polarized voting” and hold public hearings on any potential election rule changes. In addition, local educational agencies need to either get a waiver from the State Board of Education to change electoral systems or—after submitting their maps to their respective County Committee on School District Organization for approval—put the matter before voters.
‘It’s a good thing’
But a growing number of school districts are tackling these difficult issues head on—many of them ably assisted by their respective county offices of education. These CVRA pioneers say a district can comply with the act without losing local autonomy or breaking the bank. In the process, of course, these LEAs are taking steps toward accomplishing the law’s mission: ensuring that all members of California’s increasingly diverse communities have a voice.
“Here in Tulare County, a lot of public agencies have gone to a different way of electing school boards, community college and hospital boards and city councils,” says Donna Martin, a board member in the 27,400-student Visalia Unified School District and member of CSBA’s Delegate Assembly. “We saw that agencies were being sued; we hired a demographer, and we appointed a committee. We held public hearings. It wasn’t that big a deal. It’s a good thing to do to ensure that everyone is represented.”
Last November Martin was elected to her third term in the district’s first by-trustee-area election. She says she liked running in a smaller geographic region. “I did more walking and had more face-to-face contact than in any previous campaign,” she says. “I still feel that I represent the interests of the district as a whole, but I was able to get to know my particular area.”
Visalia voters also elected the district’s first Latina trustee—a development Martin welcomed after having served as the sole woman on the board for eight years.
It’s no secret that California’s population is becoming increasingly diverse. Supporters of the CVRA say the law can help correct any perceived conflict between the composition of the governing boards that oversee the schools and the voting-age population of the communities they serve. Students of Hispanic descent are already the largest subgroup in the state’s K-12 public school population, but the vast majority of school board members are white.
Experts familiar with the law say that the recent release of 2010 U.S. Census figures–and the required redistricting studies that accompany the release of these data every decade—makes this an especially opportune time for LEAs to examine local voting patterns and demographics to determine whether their election rules are legal under the law.
The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, which has brought or consulted on all the cases filed under the voting rights act so far, has sent so-called “demand” letters to dozens of school districts in recent years warning of future legal action unless these jurisdictions got rid of their at-large election systems.
“Counsel for plaintiffs will contend that the meter on attorneys’ fees starts ticking when the district receives the letter, and the costs can run up pretty fast,” says Peter Fagen, founding partner of Fagen, Friedman & Fulfrost, a firm that advises public agencies on CVRA compliance.
Jessica Pfisterer, legal fellow with the Lawyers’ Committee’s California Voting Rights Institute, has little sympathy for districts that are complaining about paying big legal fees to attorneys who represent potentially disenfranchised voters. The Lawyers’ Committee did not request attorney fee awards from a number of school districts in Fresno and San Diego counties that responded quickly to demand letters—agreeing to either change their election rules or to study whether their at-large election systems are putting minority voters at a political disadvantage.
“If they are asking for time to do a study just as a stalling tactic, that’s a different situation,” Pfisterer says.
It’s inaccurate, she adds, for critics to argue that greedy attorneys are taking advantage of cash-strapped districts.
“The law has been on the books for years,” she says. “When we get calls from community members asking for help, it’s because some residents feel they can never get anyone elected to the board because they constitute only 35 percent or 40 percent of the overall voting population.”
‘Only safe harbor’
It’s clear that districts and other public agencies risk paying a hefty price for not taking demand letters seriously. Attorneys for three Latino voters in the Madera Unified School District asked the court to order the district and Madera County Board of Education to pay them $1.7 million in legal fees, even though the district agreed to change its election system within six weeks of receiving a demand letter from the Lawyers’ Committee. Earlier this year, the California 5th District Court of Appeal affirmed a lower court decision that eliminated the county as a plaintiff and reduced the fee award to $162,500.
“It was never about the money,” says Carlos Uranga, a plaintiff in the Madera case who had run twice unsuccessfully for a school board seat under the old at-large election system. “We were asking for a seat at the table. It was about giving people the opportunity to participate in the process and perhaps elect a Hispanic candidate.”
The process of convincing the board to change its election system was emotional and at times the debate “got ugly,” Uranga says. “People accused us of getting some hot-shot lawyers who were taking money away from the Madera Unified School District,” he says. “We had to educate people about the benefits of the law.”
In the district’s first by-trustee-area election, three Latino candidates won seats on the seven-member board. The district also recently hired a Latino superintendent.
“I am overjoyed to find that in this case the system worked,” Uranga says.
The city of Modesto, which unsuccessfully challenged the law in court, eventually agreed to eliminate its at-large system. The legal battle cost the city nearly $5 million in legal fees to plaintiffs and their own attorneys.
“We’ve been trying to work proactively with districts,” says Grant Herndon, general counsel with Schools Legal Services, a consortium of the 47 districts in Kern County and more than a dozen LEAs in neighboring counties. “At the moment, the only safe harbor is to change to a by-trustee-area method for electing the governing board,” he says.
After spending many hours in board meetings and public hearings in districts throughout the region, Herndon says he has been very impressed by the thoughtful nature of trustee discussions about the pros and cons of eliminating at-large election systems. “Board members have carefully weighed the potential benefits and complexities of the issue,” he says, “and while doing so, they have acted as careful stewards of public funds.”
CSBA has conducted two statewide surveys to assess how districts are responding to the law as part of a larger campaign to tailor association services to members’ needs. In 2009, CSBA sponsored legislation that would have established an alternative process for resolving voter complaints that would have been less expensive than going to court. The bill died in committee.
“We’ve been working on this for almost three years,” says Debra Brown, a senior legislative advocate with CSBA. “We’ve found that county offices of education have become quite involved. It’s great when they can provide support. Our advice to districts is: ‘You need to deal with this.’ At the very least, districts need to assess their voting patterns to see what the data show.”
The San Diego County Office of Education has been especially aggressive, both in educating the 41 districts under its jurisdiction about the law and in providing expert help with the mechanics of analyzing the numbers. It allocated about $120,000 to provide basic legal and demographic advice to help get districts started on detailed statistical studies and gave districts access to a countywide demographic database to help draw new boundaries.
“We wanted to protect them from potential litigation if they had issues and work with them collaboratively throughout the whole process,” says Lora Duzyk, San Diego’s assistant superintendent for business services. “We paid for some of the initial analysis on the front end, but districts paid for the rest of the work.”
The Vista Unified School District, with an enrollment of 23,000 students—more than half of them Latino—was one of the first in San Diego to finalize an election rule change. Last year a divided board approved the switch to trustee-area districts in a region that has a significant Latino population but no Latino board members. The first board election under the new rules will take place in November.
The district opted to seek a waiver from the State Board of Education to allow the change to trustee-area elections—the strategy chosen by most of the LEAs that have made the switch thus far. The law permits public agencies to seek an SBE waiver rather than putting the matter before voters. If local voters reject a proposed move to trustee-area elections, a public agency can still be sued successfully if its at-large election system is found to violate the CVRA.
“I think it would have been hard to argue that we were representative of the community,” says Vista trustee Steve Lilly, who was board president when the board voted to eliminate its at-large system. “A number of people were against making the change. But I understand that if we want to control our own destiny, we needed to do this ourselves. Can we prove that increasing voter participation will mean better schools? I don’t think we can. But I do think if we believe in the democratic process and citizen governing boards, we need to have good community representation. My hope is that this sets the stage for the Latino voters to become more active.”
Delegate Assembly addresses the issue
During a spirited discussion of the law at CSBA’s Delegate Assembly in San Diego last year, a number of delegates expressed dismay at the potential expense involved in drawing up redistricting plans. Despite reassurances from a number of delegates who were enthusiastic about the way trustee-area elections are working in their districts, some delegates said they were worried that moving to trustee areas could divide districts into competing regions—making it difficult for board members to act on behalf of all students in the district.
“One of the things I find most troubling about moving from an at-large system is that in some instances it’s already hard enough to get all members of a board to care about all students in the district,” says Larry Miles, a trustee from the San Juan Unified School District and delegate from CSBA’s Region 6. “District elections raise the specter that some trustees may feel they’ve got permission not to care about certain students.”
In an informal poll taken during the Assembly, most delegates said their districts still use at-large systems.
“I was a bit stunned to hear that so many boards weren’t doing anything,” says Visalia board member Martin, who invited delegates to call her if they needed reassurance about complying with CVRA. “Most of us in Region 12 [Tulare and Kern counties] have been dealing with this. But I heard my colleagues worrying that it will cost too much to do a study. I thought ‘Really?’ Wouldn’t it be more prudent to take action now and avoid costly litigation?”
CSBA Region 20 Delegate Leslie Reynolds, a board member in the San Jose Unified School District, also urged her fellow board members to study CVRA compliance sooner rather than later and invited colleagues from districts that are considering moving to trustee-area elections to talk with her and others who have made the change.
“I hear a lot of fear in the room,” she said, during the December Delegate Assembly discussion. “In San Jose, with 33,000 students, we’ve had trustee area elections for a while. We can help you with questions. It works for us.”
Former Assembly Member Rod Pacheco, honored as CSBA’s Freshman Legislator of the Year in 1997, sympathized with school board members who are reluctant to change electoral systems that they believe have worked effectively.
“There are benefits to having an at-large electoral system,” he wrote in a 2011 guest column for the California City News blog. “But with the need to protect minority rights and the need to avoid expensive and divisive lawsuits, it’s time for California’s school boards and other bodies to move to a district-based system. The taxpayers don’t have the cash to fight for a potentially unfair system.”
Carol Brydolf (
cbrydolf@csba.org
) is a staff writer for California Schools.