At-Large Elections Pose Litigation Risk Under CVRA

by Best Best & Krieger LLP

California’s local election landscape is shifting.

Confronted with threats of drawn-out litigation under the California Voting Rights Act and costly settlements, cities, counties and other public entities statewide are embracing new district-based voting systems theoretically designed to more widely represent ethnically diverse populations.

A Mounting Problem for Agencies

Adopted in 2001, the CVRA expanded upon the federal Voting Rights Act of 1965 with the goal of preventing the marginalization of minority voters and increasing opportunities for minorities to elect a representative of their choice.

Historically, federal voting rights challenges had failed in California where plaintiffs struggled to demonstrate that ethnic groups are sufficiently concentrated to form their own majority district. Although modeled after the FVRA, the CVRA explicitly removed key standards that plaintiffs must prove under federal law — making it easier for private parties to challenge at-large elections.

The state’s counties and largest cities, including Los Angeles and San Diego, already elect officials based upon geographical districts. But smaller agencies, some of which have populations of just a few thousand voters, typically have every voter weigh in on all candidates.

The CVRA’s broad standards have made racially diverse cities and agencies with few minority officials that hold at-large elections highly susceptible to challenges. These election systems can be exposed to litigation based exclusively on proof that racially polarized voting occurred. Simply, the law says racially polarized voting occurs when different racial groups vote contrarily to one another — an extremely low threshold.

Challenges so far haven’t proven successful for agencies in court.

The first major lawsuit filed under the CVRA came in 2004 and sent a loud message to cities.

The City of Modesto was sued by a group of Latino voters claiming the city’s at-large voting system for electing city council members diluted their votes. The complaint alleged the system, coupled with a history of racially polarized voting, prevented Latino voters from electing an officeholder of their choice.

Modesto challenged the claim, arguing that the CVRA was unconstitutional. A decisive ruling came in late 2006 when a Court of Appeal sided with the plaintiffs and upheld the State’s voting rights law. The City appealed to both the California and the U.S. Supreme Courts, but upon their refusal to hear the case, settled.

In the end, Modesto settled for about $3 million and switched over to by-district elections.

More recently, the City of Palmdale engaged in a three-year legal battle over its voting system and the results of its November 2013 city council elections. In a show of the range of remedies, and overall power courts have in these cases, the trial court issued a preliminary injunction prohibiting the certification of the City’s election results.

While ultimately able to certify the results, the City settled and agreed to hold district elections for all four of its council seats in 2016. It also paid some $4.5 million in attorney’s fees, not including its own.

A Challenge to the CVRA

Recently the Act itself, and its constitutionality, has also come into question.

In October, former Poway Mayor Don Higginson filed a federal lawsuit against the Attorney General and the City of Poway challenging the CVRA and the City’s newly adopted district maps. The lawsuit, takes a CVRA provision to task that has led several agencies to move away from at-large voting methods.

Higginson asked for a preliminary injunction that could halt voting changes being made statewide.

The lawsuit questions the CVRA’s constitutionality under the 14th Amendment’s Equal Protection Clause, which, Higginson’s lawyer writes, prevents a state from “separating its citizens into different voting districts on the basis of race.” He is being represented by the nonprofit The Project for Fair Representation that has argued voting rights cases before the U.S. Supreme Court.

Poway hesitantly switched to district elections last month after receiving a demand letter from Malibu attorney Kevin Shenkman threatening litigation if the City didn’t change its voting system.

In his letter, Shenkman claimed the City was in violation of the CVRA by discriminating against Latino voters. Shenkman, whose firm successfully represented plaintiffs in a voting-rights case against the City of Palmdale, has sent similar letters to many other California communities.

At the time of writing, Higginson’s motion for a preliminary injunction is set to be heard by the court in January 2018. Already, several other agencies have filed amicus briefs in the matter.

Legislative Signs of Hope

Regardless of the outcome of Higginson’s lawsuit, recent legislation offers some hope to public agencies.

When the law was initially passed, cities had no option but to put voting method changes up to voters.

This was the case in the City of Highland. In 2014, the City placed the matter into the hands of voters. But when the transition to by-district elections was rejected, the City was sued. A court eventually ordered the transition and chose the plaintiff’s proposed district map over the City’s proposed map, despite the City’s entitlement to deference in such matters.

Assembly Bill 493 sought to streamline the transition process by authorizing legislative bodies of cities with fewer than 100,000 people to adopt an ordinance moving away from at-large elections without voter approval. In 2016, Senate Bill 2220 went a step further and deleted the previously set population limit.

Prior to AB 350’s passage in September 2016, there was no timeline for public agencies to rectify a voting system before plaintiffs could move forward with a lawsuit and plaintiffs could file suit even without first warning the public agency. Because of the CVRA’s pro-plaintiff slant, public agencies were often forced into very expensive settlement negotiations with aggressive plaintiffs who knew the law worked in their favor.

AB 350 set a clear process for transitions to district-based elections, including:

  • A plaintiff must send a letter and wait 45 days before filing a lawsuit;
  • A public agency may pass a Resolution of Intention, indicating its intent to transition to district-based elections;
  • If an agency adopts a Resolution of Intention, it has 90 days to adopt a transitioning ordinance;
  • An agency must hold two public hearings before maps are drawn;
  • An agency must hold two public hearings after maps are drawn;
  • An agency must then adopt an ordinance and
  • If an agency follows the process for transition, recovery for a prospective plaintiff’s work to produce a demand letter is capped at $30,000.

If your agency receives a demand letter, here is a list of recommended actions:

  1. Act fast: Agencies are granted a 45-day safe-harbor period to decide how to proceed. Given the short timeframe, don’t put action off.
  2. Get an attorney involved: Then, call a closed session to brief the governing body. Receiving a letter alleging a CVRA violation can be considered “significant exposure to litigation” and warrants a closed session. Gauge the body’s sense of direction — do officials want to fight the allegations or transition from at-large to district-based elections?
  3. Assess the risk: Hire a demographer immediately to evaluate likely risks under the CVRA.
  4. Have a flexible schedule: Build flexibility into the schedule to give the agency time to act and make needed adjustments. As mentioned above, if transitioning to by-district elections, the body must adopt an ordinance. This triggers the 90-day (litigation-free) period that will include public hearings, district maps drawing and the eventual adopting of the by-district election system by ordinance.
  5. Monitor the politics: Try to avoid making assumptions with your elected officials. These issues can be highly political, extremely sensitive and can cut to the heart of local politics.

It’s important to note, timelines are tight and the risk of litigation high. There isn’t time to spare in responding to demand letters. Move quickly, efficiently, and schedule in time to make adjustments. Learn more by watching a recent webinar by clicking here.

Originally published on on Jan. 18, 2018. Republished with permission.

Written by:

Best Best & Krieger LLP

Best Best & Krieger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.