Guest Feature
By Rod Pacheco
Rod Pacheco is a former State Assemblyman who served as the Vice Chairman of the Education Committee and was selected Legislator of the Year by the California School Boards Association. He also served as an Assembly designee for the last California state reapportionment. His practice currently includes educational institutions and governmental agencies and entities.
As the nation’s legislatures get set for what is sure to be a bruising battle over redistricting, California is facing its own specific electoral problems that will undoubtedly lead to a wave of costly lawsuits. While numerous states have to comply with the Voting Rights Act, California has its own unique law that practically guarantees litigation: The California Voting Rights Act of 2001. Unless local districts take preemptive action, millions of dollars will soon be going down the drain in losing lawsuits.
Like the famed Federal Voting Rights Act of 1965, California’s law attempts to prevent the disenfranchisement of minority voters. However, the California law is different in that it specifically targets local at-large elections, which historically have been used in the deep South to dilute the votes of a “protected class” of minority voters.
California’s law is very broad, covering all “political subdivisions,” such as school boards, water boards, and city councils; however, it is limited only to those with at-large elections. An at-large election is when voters of the entire subdivision elect the entire board. This is much different than the district-based system used for Congress and the State Legislature, where voters elect one official from a specific geographic area. The at-large system is popular, as it is used in over 90% of California’s 693 school districts.
Since California enacted the Voting Rights Act, lawsuits have been numerous and against all types of subdivisions. The plaintiffs have won every time, and the costs have been significant.
Two examples show the potentially high cost to the citizens of California. Madera Unified School District settled their case and paid $162,000 in plaintiffs’ attorney’s fees and costs. The plaintiffs had asked for over $1 million. The board also paid an undisclosed amount to their lawyers. Hanford Unified School District settled immediately and paid $110,000, not including their own lawyers’ fees. The Tulare Hospital District settled by paying $500,000 to the plaintiffs. Tulare’s attorneys cost an additional amount.
Similarly, Modesto was sued in 2005 when the latest census data revealed that their population was approximately split 59.6% Anglo to 25.6% Hispanic. Modesto won at the trial court, but lost in the appellate court, the California Supreme Court, and finally lost in the U.S. Supreme Court. Eventually they paid $3 million in plaintiffs’ attorney’s fees, and $1.7 million to their own attorneys.
California Elections Code section 14030 provides that plaintiffs shall recover attorney’s fees, costs, and expert witness fees if they prevail. However, the defendant can only recover attorney’s fees if the court “…finds the action to be frivolous, unreasonable, or without foundation.”
Plaintiffs need only meet a low standard and are not required to prove discriminatory intent on anyone’s part. Their burden is to prove that “racially polarized voting” has occurred within the political boundaries of the board and that at-large elections are in use. If both are shown, then “the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election” has been diluted, and there is a violation of the California Voting Rights Act (VRA).
The facts will almost always favor the plaintiffs. Racially polarized voting can be easily demonstrated in many ways, such as the lack of minorities getting elected to the governing board, ballot measures that have affected the minority group (i.e. Proposition 187), and other factors. These include “any effects of past discrimination in areas of education, employment, [and] health,” such as data showing higher unemployment figures, lower test scores, or higher death rates for the minority group.
In order to stave off these lawsuits, local governmental entities have several choices available. One choice is to fight any lawsuit. However, given that the law has been found constitutional and failure could easily result in millions of dollars in attorneys fees, this is not an attractive choice (see Modesto). Moreover, the board will unfortunately be at the center of an emotionally-charged racial controversy that will raise many public questions, such as the board members’ addresses in contrast to Hispanic neighborhoods, and the test scores and facilities of the Hispanic schoolchildren versus Anglo students.
The second option is to do nothing in hopes of being missed. Extreme budget cuts, and a possible lost election, have encouraged this seemingly pragmatic approach. However, if there is a significant protected class in the district and at-large elections are used, a lawsuit should be expected. If the board settles, or loses, they will almost assuredly pay more than if they had made a better choice. The board will pay their attorney’s fees and costs, the costs of drawing constitutional boundaries for districts, election costs, and the plaintiffs’ fees and costs. As always, denial is not a solution to life’s problems.
The final option is a preventative approach that immediately solves the entire problem and allows the avoidance of paying any plaintiffs fees. The board simply needs to voluntarily convert from an at-large electoral entity to one made up of individual districts. Once completed, it will be immune from a California VRA lawsuit. Even without the California VRA law, minority rights would be maintained, as any districts not drawn constitutionally appropriate can still be sued under the federal Voting Rights Act. A careful legal drafting and review of the boundaries of the new districts by those who are experienced and trained in this body of law can avoid expensive lawsuits and benefit the community.
There are benefits to having an at-large electoral system. 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.
All things are difficult before they are easy.
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