As you may be aware, in July the City of Encinitas received a demand letter from the lawfirm of Shenkman & Hughes accusing the city of violating the California Voting Rights Act (CVRA) by electing city council members at-large (citywide) based on alleged anecdotal evidence of racially polarized voting.
To be honest, when I first read the letter in July, I was furious! I felt our city was being bullied by someone who knows little (and cares even less) about our city. Like many people, my reaction to bullying is to fight. But in a sense, that is what Shenkman wants -- an emotional reaction that causes us challenge it, whatever the cost (see PROCESS below) -- and to rack up attorney fees to further bolster his ability to bully other cities. While many of the speakers on Wednesday urged the Council to fight this in court, the core question is not "Is this fair? Is this right?" but rather, "Can we win?" And unfortunately I don't think we can.
The CVRA is not on our side. The state law sets a very low bar for evidence. If all judges were trained in advanced empirical analysis of voter data, I'd feel more confident. But as a Political Scientist trained exactly in this stuff, I can tell you it is not as cut and dry as it seems. I fear that trend or anecdotal evidence may be sufficient to sway a judge against us. And that means that we would not only spend over $1 million on the trial case, but likely be on the hook for Shenkman's costs of over $2 million -- and that doesn't even count the cost of appeals. No other jurisdiction to date has won a CVRA case.
So recognizing this situation, the Council unanimously voted for the resolution of intent to voluntarily move to districts and fund the very quick process (including online input/map creation and face-to-face workshops). Our first public hearing with the demographer is set for Wednesday, September 6 at 6 PM at City Hall.
CRVA PROCESS -- The devil is in the detail
The way the CRVA works is that a demand letter is issued and the agency (city, county, school or community college board) has 45 days to voluntarily move to district elections. If they do this there is a 90-day "safe harbor" period, where the city is required to conduct a minimum of five public hearings, define the four City Council district maps and the exact timing for those four districts. If they do this within this 90 day window, the plaintiff (Shenkman and Hughes in our case) is awarded $30,000.
If at any time during this safe harbor, the jurisdiction chooses not to adopt the maps/timeline or does not do so in time,the plaintiff can file a lawsuit. Again, no jurisdiction has won a CRVA case in court and most have paid between $150,000 and more than $4 million in plaintiff fees in addition to their own costs! On top of it, the CRVA had an amendment last year that makes City Councils responsible for the move to districts and basically precludes it from being put to a vote of the people.
So the lesson from other cities is that we should either 1) fight it tooth and nail, forsaking time, energy and money for other projects (open space/trail acquisition, mobility improvements, Beacon's Beach, North Coast 101 Streetscape, economic development, etc.) and be prepared to lose big or 2) keep our financial burden low, realize districts actually increase representation (see POLICY below) and make sure we complete the five public hearings and make a decision to move to districts before the 90 day window expires -- which for us is the end of November. We chose to comply.
So once we go through the CVRA process, two district seats (to be determined) plus our directly elected mayor would be on the ballot in November 2018. In 2020, the other two districts and the mayor would be up. It is important to note that after every census, we will be required to slightly modify our districts to accommodate demographic changes.
POLICY -- Representation and governance
Despite the fact that I think our system is working well and, in fact, provides better governance overall to the city, districts aren't all bad. They increase representation. For example now, an at-large city council member is answerable to about 60,000 residents. In the future with four districts, a district council member is accountable to about 15,000. That means every voice now is four times as loud under districts. And that district-elected council member is more accountable to the people. In addition, the cost of running in a smaller district is significantly lower, reducing the barrier to entry to allow more grassroots candidates. This is a good thing!
What this also means is that it is up to the City Council to ensure that we have the best governance for districts, which achieves the best outcomes overall. Under districts, each district is only accountable to the voters in that district. There is no meaningful way for voters in other districts to really influence the outcome of elections in other areas of town (that's kinda the whole point). But many projects are of citywide importance and depending on how the maps are drawn, we could either incentivize or disincentivize collaboration. For example, if some districts don't have any businesses, they are unlikely to support business-friendly initiatives. On the other hand, if all districts have some businesses, they are more likely to find common ground.
With this in mind, I look forward to the upcoming process, whereby we can hear the input through all channels, online, face-to-face and City Council meetings, to identify what are the relevant parameters to ensure good future governance, create balanced districts in terms of size, population, zoning (residential, business, agriculture, manufacturing), density, and retain as much community character as possible.
POLITICS -- City Council yes; Mayor, no
The demand letter the city received was only for City Council Members, not the mayor. Given the fact we are being bullied, I am un-inclined to concede any more power to Mr. Shenkman.
Right now we directly elect four council members and a mayor. In the future, instead of five votes, we will only have two: One district council member and a mayor. On Wednesday a few members of the public urged us to voluntarily give up our elected mayor as well (which would require a vote of the people in June 2018) and I'd like to comment quickly on my thoughts.
While I understand the good intent behind this request (which is to retain as much community character as possible), I strongly feel we need to:
- only do the minimum to comply with the demand letter, which means only convert the city council, not the mayor to districts;
- stay within the "safe harbor" and keep our financial burden low, which means not going to a vote -- CVRA doesn't allow us to go to a vote of the people and keep costs low if we go to a vote after the "safe harbor" period; and
- keep one person elected by and accountable to all voters in Encinitas.
I would like to elaborate on this last point, because I think it is important to future governance. As I mentioned above, each district council member is accountable for their own district. It is unreasonable to expect they would be interested in the good of the entire city (though I'm sure every one would say so in a candidate forum). That's not a dig to anyone, it is just how the governance system works. With districts, having an elected mayor -- and each voter having two votes, rather than one -- means that there is that one person who is listening to all residents, brokering the best outcome on the dias for the entire city and who is accountable (and can be ousted) to the entire city.