Questions and Answers

Yes.The City’s next election is 2020, and the lines would have to be reconsidered upon the release of the Census the following year. See Elec. Code § 21620 which states “After the initial establishment of the districts, the districts shall continue to be as nearly equal in population as may be according to the latest federal decennial census or, if authorized by the charter of the city, according to the federal mid-decade census.”

Such engagement efforts are not a requirement of the CVRA, which only addresses the change from at-large elections to district-based elections, nor of the decision to be made by the City Council whether to transition to district-based elections during the time period allowed by the law. It is a related matter, however, which may be the subject of further discussion by the City Council either in connection with the current matter, or at a later date.

The City held a study session on November 20 and has held public hearings on December 4, December 18 and January 16 to receive public input.  Now that the City Council has decided to transition to district-based elections, the City Council will hold multiple meetings over a period of not more than 90 days in order to make a final decision by April 16, 2018.  These hearings will give the public the opportunity to speak to the Council about how the new electoral districts should be formed.  In addition, the City is entering into an agreement with National Demographics, Inc. that will make an interactive online system available so that the public can review and propose optional district maps.  Finally, the City has been and will continue to be posting informational materials to its website and on sound recordings, and will be partnering with community organizations to get the word out.

Yes, the City is arranging for Spanish translations of written agenda materials on this matter, and for the presence of a Spanish-speaking translator at the public meetings.

CVRA cases are highly fact- and jurisdiction-specific, so applying the result in one jurisdiction to another is very difficult. San Rafael has far different demographics and electoral history, and there were a number of unique aspects to the Palmdale case. This is especially the case as there is no Court of Appeal decision (on the merits) in Palmdale that would be binding on any lower court. Staff developed a preliminary list of the pros and cons of transitioning to district-based elections as requested by Mr. Shenkman, which was included in the staff report for the December 4, and December 18, 2017 City Council meetings. The City of Palmdale incurred expenses of approximately $4.5 million litigating its case through trial and appeals.  The high cost of litigation is the primary lesson of the Palmdale case and the argument for making the change during the statutorily allowed time period.

The costs vary based upon the candidate’s approach. There are no City-mandated costs under either system.

City staff  is not aware of any quantitative data that addresses this, though there is qualitative scholarship and case law recognizing the possibility that districts could lead to more concern for one’s district at the expense of a “big-picture” view.  However, the extent to which this is true varies by jurisdiction.

The City’s outside counsel advises that the City has the option to delay implementing district-based elections until after the 2020 Census, and a number of jurisdictions took this approach preceding the last Census (in 2010).  However, litigation under the CVRA has become substantially more active since that time, and this approach  would not necessarily avoid litigation.  In the course of litigation, a judge might deem this to be a reasonable course of action for the City rather than having to redistrict for two successive elections.  There is case law under the federal Voting Rights Act recognizing that redrawing districts for two successive elections would be confusing and disruptive. Based upon an assessment of the risks, the City Council voted on January 16, 2018 to proceed with the transition to district elections for the next election in 2020.

Article IV, Section 2 of the Charter provides that “all elections to fill public offices and elections on measures shall be made, held and conducted in the manner provided by law.”  Thus, Staff has concluded that under this provision, a vote of the people is not required to change to district-based elections for the four Councilmember seats.  Staff has not determined whether converting the office of Mayor to a fifth district-based seat would require a vote.

The Mayor’s office in San Rafael is elected pursuant to Article VI, Section 2 of the City’s Charter, which was approved by the voters in 1912.  Other cities in Marin County governed by general state law, rather than by a charter city; however, general law cities may also put a measure before their voters to have a separately elected mayor.  Generally speaking, the larger the city, the more likely it is that the city will have a separately elected mayor, although there is no formal size requirement.

This is a matter for further public input and discussion by the City Council as it considers the composition of the electoral districts.

Mr. Shenkman must provide documentation to back up the demand, but in past cases the documentation has not been very specific and the fees have been negotiated.

The City’s outside counsel advises that those figures appear to be realistic for the demographer and the plaintiff. Fees for the City’s attorneys would likely be less, since minimal travel time would be required.

Districts are set by total population. It can create a significant disparity, but that is the basis that has been approved by the courts, including—most recently—the Supreme Court in Evenwel v. Abbott. The chief exception is that prisoners can be excluded from the population base.

Staff is not aware of any circumstance that would require the City to hold an election for City Council in 2018.

No. The seats just rotate in. Each current member of the Council serves out the rest of the term to which he or she was elected, and then must run for re-election in the districts. It potentially gets a little more complicated if two councilmembers are paired in a single district, but everybody still serves out his or her full current term. As part of the establishment of City electoral districts, the Council will determine the districts that will have an open seat at the 2020 election.

Once a lawsuit is filed under the CVRA, we do not believe there is any authority for a judge to stay the case for five years; even if a judge is willing to approve a five-year transition period, it seems unlikely that this would be a basis for refusing to award the plaintiffs their attorney’s fees and costs.

If the City transitions to district-based elections within the timeline established by the CVRA, the City will be liable for the attorney’s fees of the potential plaintiffs, capped at $30,000. If the City chooses not to make the transition within that timeline but does so after being sued, it is possible that the City will be liable for substantially higher litigation costs and attorneys’ fees of the plaintiffs, and the expense of the City’s own defense attorneys will also likely be higher. The amounts are unknown but will increase the longer the action is litigated prior to settlement.

Sued in 2008, Madera Unified School District ended up paying plaintiffs’ counsel over $100,000 for six weeks of uncontested litigation, and that was after a substantial reduction of the fees that were requested (which exceed $1 million).

An additional consideration is that the Council may have less control over the districting process if a court is involved.

Article IV, Section 2 of the Charter provides that “all elections to fill public offices and elections on measures shall be made, held and conducted in the manner provided by law.”  Thus, Staff has concluded that under this provision, a vote of the people is not required to change to district-based elections for the four Councilmember seats.  It is staff’s opinion, however, that converting the office of Mayor to a fifth district-based seat would require a charter amendment, that would require a vote of the electorate.

No. The seats just rotate in. Each current member of the Council serves out the rest of the term to which he or she was elected, and then must run for re-election in the districts. It potentially gets a little more complicated if two councilmembers are paired in a single district, but everybody still serves out his or her full current term. As part of the establishment of City electoral districts, the Council will determine the districts that will have an open seat at the 2020 election.

The City Council will be determining the sequence of elections as part of the process of establishing the voting districts.

Given the very strict timelines that the Legislature has imposed for this process under the CVRA, and the substantial number of hearings that must be had in a short time, a citizen commission is impractical at this point. Nothing would prevent the Council from appointing such a committee in 2021, when lines are redrawn following the next Census.

The City began to do research, hired outside counsel, and started to schedule public hearings on the issue of district-based elections when it learned of the impending receipt of Mr. Shenkman’s letter.  The City hopes to provide an opportunity for all interested persons to provide input to the City Council on the issue of district-based elections, and to ensure that the City’s electoral system best serves the entire City, in compliance with state and federal law.

Yes, Kevin Shenkman’s letter dated November 10, 2017, addressed to the City Clerk was received by her on November 20, 2017.