Well, they’ve done it. The Sunnyvale City Council has brought down a civil rights voting claim against itself just like the one brought against Santa Clara.
Santa Clara lost that one in June and will likely pay attorneys’ fees and costs to the Santa Clara claimants to the tune of more than $4 million. Sunnyvale is already liable for its claimant’s attorneys’ fees; the cash register is ringing.
The claim notifying Sunnyvale that its voting system for electing council members violates the California Voting Rights Act (CVRA) was sent to Sunnyvale on Oct. 2. Everyone knows that, but Sunnyvale’s council and city attorney have failed to admit it.
At the moment, there is a $30,000 cap on attorneys’ fees the claimant can recover from Sunnyvale. The council only has 30 days left to vote for a resolution stating it will change the Sunnyvale’s system for electing the council to district-based voting. If the council blows that deadline, the claimant can bring a lawsuit against Sunnyvale with no cap on the attorneys’ fees the claimant can recover.
Under the California Elections Code Section 10010 the council has 45 days from receipt of the notice of the claim to pass a resolution stating it intends to change to a district-based voting system, and 90 days from passage of that resolution to put that voting system in place. If Sunnyvale meets those two deadlines, the claimant cannot sue the city for violating the California Voting Rights Act and can recover, at most, $30,000 in attorneys’ fees.
Surprisingly, the Sunnyvale city attorney advised the council in the staff report for the Sept. 5 special meeting that “absent a judicial finding that the city is in violation of the CVRA, voter approval is required to amend the charter to change its electoral system.”
In the last year-and-a-half, three California charter cities have changed from at-large voting systems to district-based systems without voter approval, without changing their charters and without any judicial finding that any of their cities were in violation of the CVRA. Those cities include Santa Rosa, Arcadia and Torrance. (Torrance has since changed its charter to reflect the reality of its district voting system.) These cities made the change to district voting pursuant to Government Code Section 34886.
Section 34886 states: “Notwithstanding Section 34871 or any other law, the legislative body of a city may adopt an ordinance that requires the members of the legislative body to be elected by district or by district with an elective mayor, as described in subdivisions (a) and (c) of Section 34871, without being required to submit the ordinance to the voters for approval. An ordinance adopted pursuant to this section shall include a declaration that the change in the method of electing members of the legislative body is being made in furtherance of the purposes of the California Voting Rights Act of 2001 (Chapter 1.5 (commencing with Section 14025) of Division 14 of the Elections Code).”
Section 34886 is clear. Applying the first sentence to Sunnyvale: “Notwithstanding Section 34871 or any other law (that would include the Sunnyvale City Charter), the [Sunnyvale City Council] may adopt an ordinance that requires the members of the [Sunnyvale City Council] to be elected by district or by district with an elective mayor … without being required to submit the ordinance to the voters for approval.”
The second sentence makes clear that any ordinance adopted pursuant to 34886 would change Sunnyvale’s voting system “in furtherance of the purposes of the California Voting Rights Act of 2001.”
As the Santa Clara County Superior Court stated in the city of Santa Clara case, “because it governs an issue of statewide concern, however, the CVRA supersedes the city’s charter. (Jauregui v. City of Palmdale (2014) 226 Ca1. App. 4th 781, 802.)”
An ordinance enacted pursuant to section 34886 would override the Sunnyvale charter requirement that a change to Sunnyvale’s voting system be made with voter approval.
The Sunnyvale city attorney could not have missed Section 34886 or the fact that three California charters cities recently changed to district voting systems without submitting their new voting ordinances to their voters for approval, particularly because Sunnyvale has hired a lawyer who specializes in election law.
Still, his report to the council for the Sept. 5 special meeting failed to mention Section 34886. Was this the result of the influence of council members like Glenn Hendricks, who adamantly oppose district voting?
Nevertheless, now that this civil rights voting claim has been made to Sunnyvale the city attorney and the council will be forced to acknowledge the existence of Section 34886 because only through the use of Section 34886 will Sunnyvale be able to meet the Elections Code Section 10010 requirement that Sunnyvale move to a district voting system within no more than 135 days from receipt of the notice of the claim to avoid a civil rights lawsuit over the city’s voting system with no cap on attorneys’ fees.
Every California city confronted with such a lawsuit has lost. The claimants in the Santa Clara case have asked for $4.2 million in attorneys’ fees and costs. The claimants in the city of Palmdale case were awarded more than $4.5 million.
Sunnyvale should move to district voting to avoid this hugely expensive lawsuit that the city would most likely lose.
David Wessel is a concerned Sunnyvale resident, Bay Area lawyer and past president of the Democratic Club of Sunnyvale. Opinions in this article are the authors’ own and do not necessarily reflect those of San Jose Inside. Send op-ed pitches to [email protected].