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Voting Rights Legislative Package Aimed at Curbing Frivolous Litigation Signed by Governor

September 30, 2016
Gov. Jerry Brown on Sept. 28 signed a series of California Voting Rights Act (CVRA) measures that streamline cities’ conversion to district-based elections while simultaneously curbing a rash of serial and costly litigation.
 
Since the enactment of CVRA, dozens of cities and additional local government entities have been sued for alleged violations.

CVRA provides generous recovery for attorney’s fees. Consequently, cities have incurred extremely high legal costs — some as high as $7 million. The League worked diligently this year to mitigate the out of control costs associated with CVRA litigation. Local agencies in recent years have paid an estimated $20 million in legal fees to plaintiffs’ attorneys. This estimate does not include internal costs expended by the agency during CVRA litigation. 
 
Last year the Governor signed SB 493 (Canella), which allows cities with a population of under 100,000 to convert to by-district elections through the ordinance process — providing cities a faster way to convert and curb litigation costs. This week he signed AB 2220 (Cooper), which simply expands upon SB 493 to allow all cities regardless of population size to convert to district-based elections through the ordinance process.
 
Assembly Member Luis Alejo (D-Watsonville) worked on a companion measure to AB 2220 bringing together stakeholders from all spectrums. AB 350 (Alejo) achieves a balance of increased civic outreach with cost mitigation for cities attempting to switch from an at-large voting system to a by-district voting system.
 
Under AB 350, prospective plaintiffs are required to send a written demand letter alleging that the local government has violated provisions of CVRA. Upon receipt of the letter, a local government has an initial 45 days of safe harbor to assess their needs and make a determination if they wish to contest the alleged violation or convert to districts through the ordinance process. Should the city choose to convert to district through the ordinance process, the city is afforded an additional 90 days to comply before a lawsuit can be filed.    
 
Key Provisions of AB 350 include:
  • If a city is complying with the provisions AB 350, it is safe harbored from litigation throughout the public hearing and ordinance process (up to 135 days if a demand letter was received by the city, 90 days if no demand letter was received).  
  • A city can be proactive and voluntarily switch to district based elections (without receiving a formal demand letter). The city would pass a resolution of intent to switch to districts and from that point have 90 days of safe harbor (free from litigation) to comply with the provisions of AB 350 and go through the ordinance process.     
  • Cities still have full local control. They are not mandated to move to districts, as we have seen in previous bill attempts. If a city receives a demand letter they are given 45 days of protection from litigation to assess their liability (perhaps hire their own demographer to conduct an analysis, meet in closed session, etc.) and make a determination if they choose to contest the demand letter or pass a resolution of intent which buys them an additional 90 days of safe harbor and switch to districts by ordinance.
  • Legal fees capped. A hard cap of total financial liability will now be set at $30,000. Currently, a city can be sued by several different plaintiffs. Even if a city is in the process of converting to districts and have entered a pre-litigation settlement agreement with one plaintiff, they can still be sued by another plaintiff (as we have seen in several cities).
    • Moreover, settlements are much higher, typically in the six figure range (even seven figures). Under AB 350, a city is only liable for a total cost of up to $30,000 and the plaintiff must show financial documentation that they in fact incurred those costs. Regardless if more than one plaintiff tried to file suit, if a city takes advantage of the AB 350 process their liability is limited up to $30,000.
  • A city can avoid any cost if it proactively switches to districts and utilize the safe harbor. 
These measures are critically important to League member cities that have experienced a spike in frivolous and expensive litigation. These companion measures not only create a mechanism for cities to convert to districts quickly, but provide a fiscally responsible way for our cities to convert. Most importantly, these measures still allow cities to retain a degree of local control and make a decision that best suits the needs of their constituents while still complying with CVRA.
 
The League applauds Governor Brown, Assembly Members Luis Alejo and Jim Cooper, as well as the wide range of stakeholders who came together on these measures — ensuring that cities are protected from serial litigants whose only motive is financial.


 
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