Month: April 2018

A letter authored by the Huntington Beach City Attorney sheds light on the legal issues at play in the dilemma currently facing Torrance on whether to move from an at-large election system to a district based model.

The letter, dated 18 May 2017, was sent to Attorney Kevin Shenkman and was written in response to a letter Shenkman had sent to Huntington Beach threatening to sue unless Huntington Beach voluntarily moved to a district based election system. Shenkman sent a similar letter to Torrance and many other California cities.

The letter sent to Torrance prompted City officials to take the initial step of changing the Torrance election system. Many of the Councilmembers at the hearing expressed angst with the decision, however, noting they felt as if they were being extorted or as if a “gun were being put to their head.”

Reports indicate that Shenkman took no further action against Huntington Beach after receiving the letter authored by that City Attorney. Presumably, the same legal arguments used by Huntington Beach to ward off Shenkman would also apply to Torrance. It would appear, however, that none of these arguments were considered by the Torrance City Attorney since no mention of the Huntington Beach case was made in the staff report prepared on this issue.

Key excerpts from the Huntington Beach letter are included below:

“To put it simply, the facts do not support your allegations and the City Attorney disagrees with your conclusions of law.”

“The City of Huntington Beach, has, unlike perhaps other cities, a fairly even racial “mix” across the City, such that no one racial group is disproportionately disadvantaged in the election process … It appears by your standard form letter, you either did not research the demographic and historical voter data for this City, or when you did, you drew the wrong conclusions”

“The City of Palmdale case is not dispositive with regard to Huntington Beach … one of the factors left unaddressed by the Court of Appeal is the applicability of the CVRA to Charter Cities when the City has expressly adopted its voting scheme in its Charter”

“It is the legislative branch of government that makes the law, including determining voting schemes and creating districts … The Courts on the other hand are tasked with interpreting and enforcing laws, not creating new laws (i.e. how Charter Cities conduct elections) by judicial fiat.”

“Notwithstanding the City of Huntington Beach’s other strong arguments, there are a host of issues alluded to by the Court of Appeal in the City of Modesto case with regard to the constitutionality of the CVRA. Among such issues is the reverse discrimination at work if the CVRA is applied to the City of Huntington Beach. This kind of reverse discrimination implicates Equal Protection and Due Process clauses of the U.S. and California Constitutions … Any lawsuit against the City of Huntington Beach will draw a Cross-Complaint by the City against plaintiff with possible anti-SLAPP ramifications”

“If a lawsuit is filed, the City of Huntington Beach plans to immediately seek reimbursement from the State for any and all costs associated with any studies, implementation and legal fees, etc., required by the City. The City will encourage other California cities to seek similar reimbursement from the State as well.”

“If you claim to advance the interests of Latino voters in our community, you need to ask yourself and discuss with your clients, is it better that our Latino community have 13% influence over the election of seven Council Members in an at-large system, or is it better they have up to (at most) 23% influence over a single Council Member (as historically determined) in a district-by-district system”

“Many in our Latino community may decide for themselves that they would rather influence all seven elections of Council Members, rather than have an attorney like yourself effect a change in the systems such that the voices in our Latino community are diminished, restricted, or taken away, and relegated to a mere 23% influence of a single Council Member”

“By the way, 23% does not guarantee the election of any particular candidate from any particular racial group. Clearly your “cause” as it relates to Huntington Beach does not have the best interest of our Latino Community, or any racial group in mind.”

“As the City Attorney of this great City, and in the interest of having all of the people of the City informed, I request that you share this letter in its entirety with your clients. It is important to me that those seeking the best interest of the City, or to improve the City, have all of the information available to them.”

Yesterday evening the Council took the initial step of moving from At-Large to District based elections. The action stemmed from a March 7, 2018 letter received by the City from attorney Kevin Shenkman in which he threatened to sue the City unless Torrance voluntarily moved to a District based election system.

Shenkman acted on behalf of his client the Southwest Voter Registration Education Project. In the letter he claimed that “voting within Torrance is racially polarized resulting in minority vote dilution.”

Torrance is not alone as many other California jurisdictions are facing similar threats from Shenkman. Antonio Gonzalez, the President of the Southwest Voter Registration Education Project, was quoted in an LA times article last year as saying they had already sent in demand letters to 25 jurisdictions and were going to do 100 before the year was out.

The City attorney warned the Council that the chances of the City successfully defending itself against the threatened litigation were extremely remote. In that regard, the staff report stated that:

“Every government defendant in the history of the CVRA that has challenged the conversion has either lost in court or settled/agreed to implement district elections and been forced to pay at least some of the plaintiff’s attorney fees and costs”

The staff report indicated those fees could be as high as $4.5 Million and also listed several jurisdictions that had already capitulated to Shenkman’s demands. Of those listed, however, only one (the City of Palmdale) had actually lost at trial. All of the other jurisdictions listed appeared to have either settled the case out of court or voluntarily moved to a district based model.

Not all California cities share such a bleak outlook of legal success as that portrayed in the staff report. Santa Monica and Huntington Beach, for example, both received letters from Shenkman, but unlike the other jurisdictions listed in the staff report they refused to give in to Shenkman’s demands. These cities, however, were curiously omitted from the staff report.

The omission of Santa Monica, in particular, is odd considering that Santa Monica is actively fighting the lawsuit and actually filed a motion to have it dismissed as recently as 29 March 2018. That motion stated that:

“To prevail on their California Voting Rights Act claim, plaintiffs must prove, among other things, that vote dilution is caused by the City’s at-large electoral system. Plaintiffs must therefore demonstrate that some permissible electoral scheme other than the City’s current system would enhance Latino voting power. But expert demographic analysis confirms that plaintiffs cannot do so, because no constitutionally or statutorily permissible remedy could enhance Latino voting strength. Absent proof of vote dilution, there is no constitutional basis on which to supply any remedy at all, much less a race-conscious one.  Governments are authorized to separate persons into voting districts predominantly on the basis of race only when they have a compelling interest in doing so, and only where their actions are specifically and narrowly tailored to further their legitimate purposes.”

It was reported in May of last year that the City of Huntington Beach was also pushing back against Shenkman and was prepared to go to court if necessary. The City Attorney for that city was quoted as saying, “We’re going to push back. And we’re going to push back hard.”

Both Santa Monica and Huntington Beach have a comparable percentage of Latino voters  to Torrance.

Torrance must hold a series of public meetings before officially making the change to District based elections. Should the Council opt to do so they can back out of their intention to change the election model and revert back to the At-Large method.