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

Notes:
(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

https://appellatecases.courtinfo.ca.gov/search/case/disposition.cfm?dist=6&doc_id=2280623&doc_no=H046696&request_token=OCIwLSEmXkg9W0BNSSFdSEpIUFw7UCxbJyM%2BXzNSXDtOCg%3D%3D


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:
https://cmportal.scscourt.org/Portal
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.

A Correspondence

(this e-mail was sent in response to a one-sided “news” story in the SF Chronicle)

From: Kevin Park <santaclarakevin at gmail.com>
Sent: Thursday, October 22, 2020 5:17 PM
To: Killion, Ann <@sfchronicle.com>
Subject: Kevin Park, candidate for Santa Clara City council district 4

Ms. Killion,
My name is Kevin Park and I am a candidate who is running for city council in Santa Clara. Although I am a candidate that Jed York supports in this race, I have never been a stadium fan or a ’49er supporter. I opposed the stadium actively, walking against Measure J and speaking out against city council and the then-supporters of the campaign, of which Lisa Gillmor was the main one.

I read your article, but it was far from a complete story or balanced.

If you would like to hear my story, please feel free to respond or call me at 408 xxx xxxx. You can also read more at my website www.KevinPark.org/news

Thank you for your time.

Kevin Park
Candidate, Santa Clara City Council  District 4

On Fri, Oct 23, 2020 at 10:51 AM
Killion, Ann @sfchronicle.com wrote:

Hi Kevin,
Thanks for reaching out. The column is about Jed’s astounding – and many would argue – obscene amount of money being poured into a smallish-city’s city council race. It’s not out of the goodness of his heart. Good luck in your campaign.

Ann

From: Kevin Park <santaclarakevin at gmail.com>
Sent: Sunday, October 25, 2020 2:05 AM

Ann,
Thank you for your well wishes.

While I understand — and in many ways agree with — your view of the situation, it is not fair to the public, or the candidates, to not address other aspects of the story.

Did stadium supporters — of which I was not — mention the equally “obscene” amount of money put poured into a “smallish-city’s” elections in 2010 when Measure J was on the ballot and Lisa Gillmor, Kathy Watanabe, and Debi Davis worked with Jed York’s organization on advertising and marketing? Do you really think it was coincidence that these same people eventually made it to city council, two through the benefit of appointment by a council that also backed the stadium deal? As you say, it was not necessarily “out of the goodness of his heart”; Jed York is a businessman, and the ’49ers are a business. I wish more people had understood that during the time of Measure J, before we had a stadium and millions of dollars worth of debt — especially the people who made it to council.

It is funny that you characterize the money spent supporting Measure J as a “mere $4 million”, yet this year we have an “unprecedented $3 million”. I do not know if you understand what “mere” and “unprecedented” mean. Clearly your article was written with an intentional slant. You could just as easily have asked, “Why is the city, and Lisa Gillmor in particular, spending any time or money sending out propaganda pieces claiming that Kevin Park would eliminate the curfew when he has not said anything of the sort?”

A big difference in this election is that the people Jed York is independently supporting did not work with him or his organization in any way to garner that support. In fact, the records will show that Suds Jain and I actively campaigned against the stadium and Jed York’s influence in the City. When Measure J passed and the stadium terms changed, I further fought to bring the changes to another vote, as the terms were no longer what the people had approved. I was an active member of the Santa Clara Citizens Advisory Committee and I asked both the City and the ’49ers to defend the deal at a meeting. I have been — and still am — critical of the way we brought the stadium into the City and fight for better management.

But that is only a big difference. The biggest difference is not that we did not work with Jed York, like the people supporting Measure J — that is only an indication of the difference.

The biggest difference in this election is the makeup of the candidates: I am an independent individual who deals with the issues and is not beholden to corporations or businesses, no matter how much money they “invest”. I do not have ambitions to be a career politician. A simple inspection of the “city-backed” candidates will show that this is not true for them. I have accepted neither money nor endorsement from special interest groups or partisan organizations. If I am “beholden” to anyone, it is the residents of Santa Clara, and I make it clear in every aspect of my campaign. I cannot stop Jed York from spending money against the city any more than I can stop you from writing stories supporting it.

For you to buy into the narrative that money — especially independent expenditures over which we have no control — in support of any candidate must make the candidate beholden to the source of that money, or any organization, is narrow-minded and ignorant, no matter how “understandable” you try to make it.

For you to promulgate this narrative, working with the city on a story where you did not even ask the “other” side for comment, is bad journalism.

Jed York is a businessman, and the ’49ers are a business. Motives are certainly in question whenever an action is taken, and money certainly draws more attention. But you seem to make the argument that the entity behind the investment makes that investment bad. “Hitler is against cancer, so we must be for it.” Instead, we should look at the issues, not just the people — or money — that are for and against them. I am not in the pockets of Jed York or any person or organization and I am certain that any “deals” I help make with his organization will be fair and favorable to the City of Santa Clara.

Your view on this subject will likely not be changed by rationalization, and I do not deign to change the principles that become you.

I would ask that you provide a journalistic service to the people and give them as much information that is available so that they can make the best decisions for their families and livelihoods. If I were unwilling to speak, that would be another issue, but when information is available, why would you not at least examine it and enter it into record?

It is the ignorance of “the educated” or “professionals” that causes them to accept generalizations as the rule, and the consistency of “principled” people that cause them to overlook things they are unwilling to see. Whether you cannot learn a new thing or will not learn a new thing, whether you lack the capacity and training or simply refuse out of beliefs, there is no difference. Humanity — any engine really — does not move with status quo, but with change, and our ability to understand and harness differences.

Good luck in your profession. I can be reached at the contacts listed on my previous correspondence if you decide that your writing should somehow become journalism.

Kevin Park
Independent Candidate

On the 2018 Districting Process

It seems that my opponent and I remember the 2018 Districting process a little differently. Actually, “remember” is a bit of a misnomer, because my “memory” involves quite a bit of going back to my notes and the presentations given during those meetings. I will link files as I refer to them, because I do save every one.

Contrary to my opponent’s statements, one of the concerns the city demographer had was indeed keeping then-current city council members in separate districts. This was a common topic of discussion from city council when coming up with district criteria to give the court, and it was a common point brought up by the demographer herself when discussing the maps that were submitted. You can see her references to this in slide 7 of her presentation to the districting committee on 3 July 2018 and again when considering the final maps on 5 July 2018 (see slide 2). The separation of existing council members into their own districts is a reason map option 3 was accepted. For my opponent to say that this was not a consideration is not only false, but would have been against the council’s — and the court’s — criterion.

I went to every districting committee meeting, as well as city council meetings relating to districting and Measure A. I was deeply involved, and participated in every public event and exercise that was made available. I spoke out on many occasions and presented to both committees and council. I gave presentations on districts and provided an analysis of the map options at the Santa Clara Citizens Advisory Committee. I attended every court meeting during the CVRA lawsuit in San Jose from before the verdict through the end of the remediation phase (in fact, I sat next to the city demographer for every meeting she attended).

There were many issues with the districting process itself, from the makeup of the committee to the process created by the demographer the city hired, Jeanne Gobalet. We verified problems with the committee members when at least one was recycled to be on a subsequent Charter Review committee, again addressing the issue of districts, but seemingly without any of the knowledge gained from previous experience. The problems with some of the process I detailed in my submissions to the city, some of which you can see here: 20180705-DistrictingSubmission-KevinPark. I will sum up my points below.


The “tools” Gobalet provided for the public were rudimentary at best: a spreadsheet that few people could understand, and one that contained a number of errors when initially presented. In fact, there were only three residents who submitted maps — note that all residents were from technical fields — which was a disappointment because there were a few other residents who would have liked to have submitted maps if they could have understood the process better. This was a distinct departure from other cities, like Menlo Park (in English and Spanish! [local copy]), which had easier-to-comprehend online tools provided to residents. You can get a copy of Gobalet’s original 6-district spreadsheet, or my modified spreadsheet for 7 districts.

It was obvious that the pieces, and the tool, were designed for the 2-district maps used for Measure A earlier in 2018 and modified for 6 districts. The fact that minimal changes were made to both pieces and tools contributed to the initial errors in the tool and the inadequacy of the pieces when going to 6 districts. From my submission:

There seems to be some work done to create additional pieces since the last districting committee meetings earlier this year (there are an additional five pieces created by splitting some of the original 31 pieces, for a total of 36 pieces in the most recent Pieces map). It would have been nice to have also spent time dividing the most populous areas into smaller pieces as well, especially since the definition of more districts essentially requires an increase in the “resolution” of each area with respect to population. Perhaps a guideline stating that each piece should contain no more than some number (on the order of (total_population / number_of_districts) / pieces_desired_for_each_district, where pieces_desired_for_each_district is at least 3​) people/CVAP.

This may be largely due to the time frames involved (short, as there was an election in just a few months time and a nomination period that was already in progress), but the process, and push, certainly did not give the residents of this city their due. Why was improper preparation of pieces such a big issue? From my submission:

While the “pieces” data may have seemed sufficient to split the city into two parts, we can see with just a little bit of work that they are not sufficient when considering six and especially seven districts. If we try to make seven districts with the pieces Dr. Gobalet defined, Piece #17 has to stand on its own and adjacent pieces are often too populated to be combined. This is similarly true with six districts. I tried to work off of the block data, but it is unlikely that I will finish or that Dr. Gobalet can validate such a submission within the timeframe.

Even with six districts, the size of the pieces obviates several groupings once a single district is created. When creating an initial group based on the districting criteria (namely: Topography; Geography; Cohesiveness; contiguity, integrity, & compactness of territory; and “Communities of interest”), the other districts tend to define themselves once you try to meet the population deviation guidelines. This is why so many attempts look almost exactly, if not exactly, like Dr. Gobalet’s original drafts.

Consider Piece #17 alone and you will see that there are only a few options with six districts — and, as mentioned above, only one possible option with seven districts.​ This is largely true of Piece #28 as well.​ In fact, Piece #17’s population alone deviates more than 2100 between the 2010 census and 2017 estimates.

While there seems to be some freedom with the large pieces that contain fewer people (see District 2 in Draft Plan1 and District 1 in Draft Plan 2), that is a false hope that does not help balance the numbers or improve representation.

Gobalet’s admission that she, as a professional demographer, could not think of how to break up Piece 17 in any way other than along main thoroughfares — and did not see this as an issue when coming up with the 6-district tool — was disappointing to say the least, and doubly so when we were able to meet additional demographers and experts in court and take a look at their maps. Their maps more-closely resembled the heat maps that defined minority areas, and it was clear how their districts tried to keep communities intact. Gobalet’s maps looked like they could be 6-piece toddler puzzles. Her biggest problem with the plaintiff maps? The plaintiff’s maps looked “gerrymandered”. When asked to explain the gerrymandering she saw:

“I don’t know what gerrymandering is, but I know it when I see it.”

Jeanne Gobalet, court testimony during the 2018 CVRA lawsuit

It is unfortunate that we were not allowed to record the court proceedings, as there was quite a bit of eye-opening discussion. But we can see and hear what the city demographer said in council and committee meetings. In addition to not being able to create a good basis for the maps the public was supposed to create, she was not entirely truthful as to the splitting of precincts in court, which her pieces also did to her own admission in a council meeting: https://www.youtube.com/watch?v=FHrE5v1bAlQ&t=7450

We deserve better districts for better representation in Santa Clara. We deserve council members who will do more than give lip service, but actively take notes on major issues before them and make changes that are consistent with what they say. That is why we need change.