Are District Elections Coming to Novato?

Is Novato guilty of violating the California Voting Rights Act (CVRA) of 2001? A Southern California law firm well-practiced in litigating that very question recently accused Novato of being in violation. Odds are the City Council will elect to change to district elections to avoid this very expensive litigation.

The “protected class” of interest in Novato is its Latino residents who are impacted most by the alleged violation of the CVRA. In the near-term, all council discussion in response to the written notification will be hidden from Novato’s residents using the legal cloak of “closed session involving impending litigation”.

Many other cities in California, nearly 100 thus far, when confronted with violating the 2001 Act have agreed to a settlement that resulted in district-based elections. School districts, community college districts, and “special districts” for services such as fire, hospital, sanitation, and water are also subject to this act.

After a city’s Clerk receives written notice of a CVRA violation the city has 45 days before the plaintiff can file a suit in court. If during the 45-day period, a city adopts a resolution stating its intent to transition from at-large to district-based elections, the city gains 90 days from the date of passage of the resolution before the plaintiff can formally file a suit against the city in court.  The clock began ticking in Novato on February 13th when the notice was received by the Novato City Clerk, with elections for Novato City Council members looming on the horizon.

Most cities reach a settlement agreement with potential plaintiffs before the end of the 90-day grace period. If not, it is game-on in court, and historically the odds are not good for Novato with its 20% Latino community and its apparent lack of influence on City governance.

The CVRA utilizes the “protected class” label to provide the right of action against at-large elections. A plaintiff under the CVRA must show that “racially polarized voting” has occurred in elections. This is a slam dunk under the CVRA’s criteria for compliance.

Under the CVRA, racially polarized voting means voting in which there is a difference in choices preferred in a “protected class” and the choices in the rest of the electorate. Contrary to the federal voting Rights Act of 1965 (FVRA), California’s CVRA does not require the “protected class” to be geographically compact in the electorate’s geographical area in order to allege a violation of the CVRA, i.e. the “protected class” does not have to reside in one particular  area. In Novato, primarily Latino residence areas are not contiguous.

The essence of the CVRA is it provides a “private” right of action to members of a “protected class” where the “dilution” effect of an at-large election system “impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election”. Thus, a private citizen can exercise a “private right of action” and sue a local government, school district, or special services districts currently using the at-large method of elections.

Potentially, concomitant with the Latino racial/ethnic group’s recent ascension becoming the majority minority of residents in California, the at-large election on the local level may become extinct. The existing “white” local political power structure has only to look at the State legislature’s members’ on-going change in last names to see the demographic direction of California.

Inexorably, if current trends hold, California is moving towards a Latino dominated legislature as a consequence of legal and illegal Latino immigration. It is fathomable that in the future in some areas in California “whites” may be designated as a “protected class” under the CVRA, particularly in small rural agricultural areas and less prosperous urban areas.

If a sued city or other special governmental district loses a CVRA suit in court, it is required by the CVRA to pay all legal and court fees of the plaintiff that can easily exceed $1 million. If a governmental entity chooses to settle the suit before a verdict is reached in court, it still must pay the plaintiff’s legal and court fees. Novato, with its operating budget in structural deficit mode, is in no position to roll the financial dice.

The CVRA provides as a basis of violation “…certain cities that have never had minority representation….” can be in violation of the Act. Novato’s City government is subject to this interpretation based upon the historical absence of minority office holders on the City Council.

If Novato is to avoid the filing of a suit and expensive litigation, it will have to move quickly to come into compliance with the CVRA in an open and straightforward manner. The response will have to be non-controversial as there are more than a few well-financed potential litigants waiting in the wings to take on Novato in court. Political careers and substantial money can be made defending the “protected class” soon to likely become the majority of voters in California.

What are the implications if Novato is forced to change from an at-large election basis to a district election basis for City Council seats?

District-based elections increase a neighborhood’s political power. Today, a bare bones city-wide City Council campaign in Novato costs around $18,000. However, the amount of cash required to finance a smaller district-based campaign is dramatically less. Consequently, the number of financially viable candidates is larger. The bare minimum Novato city council campaign cost will probably decrease to between $5,000 and $10,000 for a district-based campaign.

The biggest political lobby in Novato, the Chamber of Commerce with its politically active members, political slush funds, and an aligned Political Action Committee (PAC), will have to pick its battles to preserve its reliably subservient three-member majority voting bloc of “endorsed candidates” sitting on the City Council. It will be a challenge to the Chamber of Commerce as the interests of downtown Novato businesses pale when compared to the sub-standard to poor state of many local streets with which voters in the neighborhoods must cope with every day.

Out-of-district carpetbagger candidates, such as Josh Fryday who had spent little over a year as an adult residing in Novato and financed his successful Council campaign treasury with over 80% of out-of-district money, will find it more difficult when facing longtime resident

neighborhood candidates who are much more familiar with the local culture and neighborhood concerns. Fryday’s at-large campaign funding was overwhelming enabling a “no prior local experience” candidate to literally buy a seat on the City Council ($50,000+ versus $11,500 for prior incumbent MacLeamy).

A change to district-based elections will be the biggest political transformation in Novato since the City was incorporated. It may return City government to its neighborhoods’ interests rather than continuing as a platform for some politically ambitious would-be professional politicians who use serving in local government as a whistle stop on their way to fulfilling their political ambitions at higher levels.

San Rafael has already made the change under similar circumstances. Will Novato be next? Does Novato have a choice?

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