In 2001, the California Voting Rights Act (CVRA) was passed to expand upon the Federal Voting Rights Act (FVRA) of 1965. The CVRA’s primary intent is to provide more protection for California minority groups who feel “at-large” elections dilute their voting rights. Additionally, under the CVRA, if someone has a complaint, they only need to prove that there is a case of “racially polarized voting,” and the city will be held in violation and liable. Racially polarized voting occurs when there is a difference between the choice of candidates preferred by voters in a protected class (or minority group) and the choice of candidates preferred by voters in the rest of the electorate. Additionally, the city will be held in violation in any form of discriminatory action against a protected class under the CVRA.
Many California cities that follow “at- large” election systems have avoided litigation by going outside of court to settle claims and switch to district-based elections. Due to the nature of CVRA, if a plaintiff wins, they can be granted all reasonable attorney fees and expert witness fees. Because of CVRA, many cities have had to pay large amounts of money for these claims. If a city were to win its lawsuit, it would not recoup the fees unless the case can be proven frivolous. While many cities have tried to challenge CVRA claims, none yet have been successful.
On September 28, 2016, the State legislature passed AB 350, which amended the CVRA to provide that if a city decides to transition to district-based elections, they are granted a “safe harbor” from CVRA litigation. On June 23, 2020, the City of Tustin received a letter from the Mexican American Legal Defence and Education Fund (MALDEF). The letter asserted that Tustin’s “at-large” election system violates the CVRA. Additionally, MALDEF threatened legal action if the City of Tustin decided not to proceed to district-based elections.
Under the AB 350 Law, the city of Tustin had 45 days to decide if they wanted to move to district elections subject to the safe harbor. Once the 45 days are up, if a city chooses to move towards district elections, there will be a 90 day period where no plaintiff is allowed to file a legal action under CVRA. Once a city goes through with this process under AB 350, they can only be liable for up to $30,000 if a plaintiff can show that they incurred these costs employing demographic services and other work to support their letter asserting a violation of the CVRA.
Given Tustin’s circumstances as of August 3, 2021 the City has decided to move forward with the processes outlined by the state for creating district-based elections subject to the 90-day based “safe harbor” period.