CVRA 2020 Update and History

The appellate court has upheld Judge Thomas Kuhnle’s judgment against the City of Santa Clara:

The following transaction has occurred in:
Yumori-Kaku et al. v. City of Santa Clara
Case: H046696, 6th District

Disposition date (YYYY-MM-DD):2020-12-30
Disposition description:Affirmed in full
Disposition status as of 2020-12-30:Final

(Signed Published) The judgment of liability under the California Voting Rights Act is affirmed. The award of attorney fees and costs to plaintiffs is also affirmed. Plaintiffs are entitled to their costs on appeal. EMP, FDE, and AMD

I stated during my campaign that I would have preferred if the City of Santa Clara dropped its appeal of the 2018 California Voting Rights Act (CVRA) judgment. As a resident of the city, a tax payer, and someone with ties to many under-represented minority communities, the fact that we did not proactively put in place a voting system that was more fair was disappointing. But the City’s active decisions to fight the CVRA were even more disappointing.

Anyone that has been following the case — or CVRA cases in general — could see that the case the city put up against the plaintiffs was not very strong. The court ruling did not come as a surprise. The appeal case seemed even weaker, as the appellate court justices seemed to affirm during the recent appeal hearing. The people claiming to have attended the appeal hearing who felt that the City had a good chance of winning seemed not to have been listening very closely.

Now we are on the hook — in the absence of any settlement agreement with the plaintiffs — for almost $4 million. That amount does not even include the City’s costs, which are likely add another $1.5 million. If we had accepted the “Safe-Harbor” provision in 2018, we could have limited our damages to $30,000, less than one hundredth of the price we will likely pay. The “Safe-Harbor” provision was the remedy chosen by most California cities, as no city had ever successfully defended a CVRA lawsuit. By the end of this year, over 90 cities will have moved to district elections.

Instead of trying to work with residents and the state on a workable solution, the City single-sidedly ran with a loaded “districting committee” and supported not one but two ballot measures that would have restricted minority voice. The City’s actions, and the ballot measures it put forth, were clearly not desired by the residents. The fact that none of the residents had a say on the lawsuit and were guided to a City-desired outcome for the districts are examples of the lack of citizen voice that led me to run for office.

Here is a short history of how we got here.

The California Voting Rights Act (CVRA) of 2001 addresses vote dilution caused by racial polarization in at-large elections.

  • The Default solution: Move to district elections.
  • CVRA added California Elections Code §§ 14026-14032
  • CVRA was enacted in 2002, effective 1 January 2003
  • CVRA challenges can apply to any public entity that votes
  • School and other special districts are also subject to CVRA challenges
  • Other amendments have been made to the California Elections Code through the years to support CVRA

A “Safe-Harbor” provision was implemented in the Changes to Elections Code Section 10010 (“one hundred ten”), in effect since 1 January 2017.

  • “Safe harbor” limits attorney’s fees and costs to $30,000
  • Jurisdictions can change election system upon receipt of a demand letter
  • Limits attorney’s fees and costs that are recoverable by plaintiff(s)
  • That is the total payout, regardless of number of plaintiffs
  • Upon demand letter receipt, city has 45 days to respond
  • If city adopts a resolution to change elections system, it has 90 days to go through the process for transitioning to districts
  • Plaintiff is precluded from proceeding with lawsuit during this time

The CVRA case against the City was filed on 30 November 2017 on behalf of Ladonna Yumori-Kaku (with additional plaintiffs). To get to the official documents of the entire lawsuit:
Type in the Case number 17CV319862 and then select the case number link.

The basic summary of the plaintiffs’ complaint: Since 1951, no minority has been elected to city council of Santa Clara, a city that has a large minority population. (This situation changed in 2018, after the court forced Santa Clara to adopt a new election system and Council Member Raj Chahal was elected, the first Asian-American on City Council in Santa Clara’s history. This history will cover the period prior to the 2018 changes.)

Asian-Americans make up over 30% of the population of eligible voters. Since 2004, ten minority candidates have run for city council without winning.

Plaintiff’s counsel notified city of complaint in June 2011. In response, the City put together a Charter Review Committee to recommend changes to the charter to help avoid a lawsuit. The Charter Review Committee recommended Ranked Choice Voting, but no action was taken by the City at that time.

Plaintiff’s counsel again notified City in October 2016. In 2017, another Charter Review Committee convened, but no recommendations or actions that would address the CVRA violations were offered. Another change of note relating to the City’s legal stance was the hiring of current City Attorney Brian Doyle, who took over in early 2017 after Attorney Ren Nosky’s departure.

Plaintiff’s counsel again notified city in August 2017. The City again took no action.

Plaintiff’s counsel notified city final time in October 2017. The City again took no action, leading to the lawsuit filing in November 2017.

Four(?) Case Management Conferences (CMCs) were held in December 2017 through January 2018 to discuss the lawsuit. There was clearly enough time for discussion on “Safe-Harbor” provision, but the City chose not to go with this option.

On 26 January 2018, the City filed 19 separate affirmative defenses. This effectively canceled the City’s ability to request “Safe Harbor”. In fact, the City’s response came outside the 45-day window for Safe Harbor.

The CVRA lawsuit was presided over by Judge Thomas Kuhnle in Santa Clara County courthouse. After a number of Case Management Conferences discussing liability, the City was found in violation of California Voting Rights Act.

From the 6 June 2018 decision:

“Based on the evidence presented at trial, the Court finds that Plaintiffs have proven by preponderance of the evidence that the at-large method of election used by the City impairs the ability of Asians to elect candidates as result of the dilution and abridgment of their rights as voters. Having found the City liable for Violating the CVRA, this action will now proceed to the remedies phase.”

The decision came after the 5 June 2018 election, but before the final result of Measure A could be deemed complete. The result of Measure A would not have changed the judge’s decision. An appointment to vacant council seat on 12 June 2018 would not have changed the judge’s decision. The issue was not just having a minority city council representative, but fixing the system of voting that prevented minority candidates from obtaining seats fairly in the first place.

As a result of the ruling, the City held four public hearings within a two-week timeframe, as required by Section 10010 (“one hundred ten”) of the California Elections Code. Judge Kuhnle also wanted to meet November election requirements; without the compressed schedule, special elections would be forced based on Registrar of Voters’ requirements to support the election.

Knowing what is required and how long each activity takes, it is a simple matter of working backward to know when the trial must end.

Judge Kuhnle noted the City’s disinterest in settlement, contrary to comments made by City Attorney Brian Doyle. Judge Kuhnle mentioned other cases where Defense worked with Plaintiffs to settle and stated that the Plaintiffs showed a desire to settle. The City’s attorneys did not seem to know what City wanted or would allow.

“I’ll have to discuss with my client.”

Attorneys for the Defense (City of Santa Clara)

I will add/edit more when I have time, but this is basically the history of the CVRA case in a nutshell. Please feel free to contact me to correct any errors or add other information.