As I see it: School districts and the California Voting Rights Act 

Does your school district elect members of its governing board at large? Or in “from-trustee area” elections, in which candidates must reside in a trustee area and election is only by the voters residing in that area? If either is the case, your district may soon face a demand from minority voting rights advocates that it implement “by-trustee area” elections, in which candidates are elected only by the voters in the trustee area, or risk litigation under the California Voting Rights Act, California Elections Code sections 14025-14032. Such litigation can put a district at risk of a stigmatizing civil rights judgment against it—and a potential attorney’s fee claim of hundreds of thousands or even millions of dollars. Moreover, because the Education Code prescribes a role for county educational agencies in approving changes to a district’s method of election, those county agencies will be named as co-defendants in any suit. More than two dozen districts have already been targeted and are struggling to manage or avoid this expensive litigation.

Background

The CVRA was enacted in 2002 with little opposition. It purports to make it easier for racial and ethnic groups to challenge at-large elections than under the federal Voting Rights Act. This includes from-trustee area elections and hybrid systems. Only districts that elect by trustee areas are immune from CVRA liability.

Beyond that, however, it is uncertain exactly what the CVRA requires. The act is no model of legal draftsmanship; its language is unclear and contradictory.

California’s 5th District Court of Appeal in Fresno rejected a constitutional challenge to the CVRA in 2006 in Sanchez v. City of Modesto, the first case brought under the act. The California and U.S. supreme courts refused to review that decision. The appeals court remanded the case to the trial court to determine “what elements must be proved to establish liability under the CVRA.” Because the case settled after the U. S. Supreme Court denied review, the trial court never answered those questions. Also left unanswered is what affirmative defenses defendants have under the CVRA.

In subsequent cases, voting rights plaintiffs have urged radical interpretations of the act that would virtually guarantee them victory in many cases but which raise serious constitutional questions about application of the act. Extensive litigation will likely be necessary to determine the act’s meaning. A case is currently pending in Tulare County Superior Court that may answer some questions, but a trial has not yet been held, and any appeal will likely take several years. Districts facing demands to adopt by-trustee area elections or suffer litigation cannot expect judicial guidance in the near future. Additional legislation seems in order to clarify this law and provide jurisdictions with fair notice of what constitutes a violation.

What’s at stake for your board
or county office of education?

School districts and county offices with budgets strained by tough fiscal times are understandably reluctant to devote resources to changing districts’ electoral systems. But the CVRA mandates the award of costs, attorneys’ fees and experts’ expenses to prevailing plaintiffs. (Prevailing defendants can rarely recover fees or litigation costs.) Thus, the alternative to proactively changing may be to get by-trustee elections after litigation and then pay huge sums to attorneys, even if the case settles early.

In Sanchez, the Lawyers Committee for Civil Rights sued Modesto, demanding that the city abandon at-large elections. After losing its constitutional challenge on appeal, Modesto paid $4.7 million in fees and costs ($3 million to plaintiffs and $1.7 million to its own attorneys). It also adopted district elections. The suit never even reached the trial stage.

As reported in a recent Los Angeles Times article, in September 2008 LCCR filed suit against Madera Unified School District, demanding an immediate move to by-trustee area elections. Unmentioned by the Times, however, are key facts: MUSD’s board is already quite diverse, with two Hispanic members, one black member, and one American Indian member. One Hispanic member has served nearly 20 years, having successfully run at large several times. Moreover, Hispanics constitute a majority of registered voters in MUSD, and the board has a record of aggressive minority outreach. It recently built several new schools in the most heavily-minority areas of the district. No school district resident had ever demanded that the district change its electoral system.

Though it did not agree with LCCR’s allegations, the district did not contest the lawsuit or oppose an injunction against certification of the elections it held in November 2008, just two months after the case was filed. The district voluntarily moved to by-trustee area elections; no court order required it to do so. A special election will be held in 2009 in the new trustee areas. Yet LCCR is demanding nearly $1.2 million in fees and costs for this uncontested suit that lasted approximately six weeks. It remains to be seen how the demand will be resolved, either by settlement or possibly a costly fee motion.

As the experience of these jurisdictions shows, a district runs disproportionate risks by ignoring this issue. Dozens of districts have already received demands from LCCR to adopt by-trustee area elections. Districts ignore these demands at their peril.

Finally, districts should be aware that the presence of elected minority group members on a board is no protection against a CVRA lawsuit. Ceres Unified School District was threatened with CVRA litigation despite having three Hispanics on its seven-member board. Ceres Unified plans to implement by-trustee area elections.

Procedure for adopting by-trustee area elections

Moving to by-trustee area elections is not the only possible option for a district that does not already have them, but that is the only sure protection from a CVRA suit. At the very least, districts must be proactive in assessing their potential liability and coming up with a plan of action where appropriate.

Changing the method of election voluntarily permits elected representatives and voters, rather than adverse plaintiffs or a court, to control the districting process and the considerations that will guide the process. Once trustee areas are established, the board is in the CVRA safe harbor, even if the trustee areas are not those potential plaintiffs would prefer (though the areas must comply with the federal Voting Rights Act and constitutional requirements).

A school district wishing to move to by-trustee area elections must apply to the County Committee on School District Organization to change the election method, and—if necessary—to alter existing trustee area boundaries in a from-trustee area system, though the district may propose the trustee areas it prefers to the County Committee.

The county committee’s approval is subject to approval by the voters at the district’s next regularly scheduled election, but a waiver of the election requirement may be sought from the State Board of Education.

Finally, school districts with territory in Merced, Monterey, Kings or Yuba counties may need to seek preclearance of the new electoral system from the U.S. Attorney General’s Office. Those counties, for idiosyncratic historical reasons, are subject to the preclearance requirements of Section 5 of the federal VRA.

Conclusion

California’s school districts are entering a new and uncertain era in voting rights law. Much about the CVRA is unclear, as is the applicability of federal precedent on key issues. It is impossible to know now how California courts will interpret the law, and finding out will be costly and time-consuming. In the meantime, there is a safe harbor under the CVRA (though still not necessarily under the federal VRA): a by-trustee area electoral system.

Marguerite Leoni and Chris Skinnell are attorneys with Nielsen, Merksamer, Parrinello, Mueller & Naylor LLP, in San Rafael (www.nmgovlaw.com). They have served as special voting rights counsel to numerous states and public entities, including school districts threatened with California Voting Rights Act litigation.