By Councilmember Victor Cabral
In the face of threatened litigation, the San Clemente City Council faces an important decision at our next meeting on Tuesday, Aug. 15: Do we pursue a transition to “district” elections to quell the litigation, or mount an extraordinarily expensive legal battle to hopefully preserve “at-large” elections in the city?
In reaching this decision, there are some important facts to consider.
The California Voting Rights Act became law in 2003, making it relatively simple for private lawyers to sue a city with an existing “at-large” governing board and force that city into a “district” election system.
The state eliminated the heavier burden required in federal lawsuits to prove discriminatory intent, historical discrimination, or that minority voters live in a geographically compact area of the city.
Under the simpler, easier California standard, one must only prove that the “at-large” election results in minority voters being diluted by majority voters. The plaintiff’s attorney merely needs to show that a protected class of San Clemente residents (Asian or Hispanic voters) vote differently from the majority.
That burden of proof is easily met through an expert witness hired by the plaintiff. The system is essentially rigged against cities.
San Clemente is among the latest targets of a concerted effort coming out of Sacramento to force “district” elections to change the makeup of city elected officials.
As a result of both actual and threatened lawsuits over the past few years, 190 cities, 270 school districts, 74 community college boards, one county board of supervisors, and 50 water district boards and other special districts have transitioned from “at-large” to “district” elections.
Each of them has, in my opinion, weighed the likelihood of success of litigation against the prohibitive cost of litigation, and concluded it is best to move voluntarily to “district” elections.
There is, however, one case brought by the City of Santa Monica that has had some success in litigating against “district” elections.
The case is before the California Supreme Court. Although no final decision has been reached, I do not expect that case to be decided in a manner that will assist San Clemente opposing “district” elections.
Also, it’s important to note that Santa Monica has incurred an estimated $10 million in legal fees thus far, and, win or lose, it will be responsible for an additional estimated $30 million in plaintiff’s attorneys fees, expert witness expenses, and court costs.
In 2016, the residents of San Clemente voted overwhelmingly to reject a referendum to transition to “district” elections; that’s a strong indication of the voters’ preference.
But, today, we must look seriously at our limited options. The demand letter we received comes with time constraints and financial implications. If the city voluntarily decides to move to “district” elections at our next meeting, the plaintiffs would be limited to recovering $37,000 for their demand letter.
If we fail to agree to their demand by Aug. 24, it will likely cost the city a minimum of $300,000 to $600,000 for attorney’s fees, experts, and court costs.
We could mount a legal battle, but we have seen several cities that have opted to litigate to preserve their at-large elections, and after spending several million dollars, none have succeeded.
As an elected councilmember, I have a duty to make a prudent assessment of the options and vote for a path forward that serves the legal, public policy and financial interests of our citizens.
Fighting this process in court is likely to cost our residents millions of dollars, and, at present, it appears the odds of winning are negligible.
I welcome your advice and counsel on this important decision.
Victor Cabral was elected to the San Clemente City Council in 2022.
Discussion about this post