Victorville may drop citywide voting for district-only elections to avoid discrimination suit
Victorville may soon overhaul its municipal elections to avoid a costly court battle that would be required in order to maintain its current system of voting for city council seats on an at-large basis.
The council will vote at a public meeting Monday to officially move forward on creating a new electoral structure.
The proposal is to abandon Victorville’s longtime structure of at-large elections, where candidates can run for one of the five city council seats no matter where they live within city limits, and Victorville voters can vote for who they want in all five seats.
In its place, a “by-district” system would be implemented: Victorville would be carved into an electoral map of five districts, and a single city council seat would be assigned to each district. Candidates could only run within the district in which they reside, and voters would only cast a ballot for a candidate from their own district of residence.
Multiple other cities in the High Desert have shifted from at-large to by-district voting over the last decade. In all these instances, as is again occurring in the case of Victorville, a private lawyer’s threat to initiate a lawsuit served as the motivation for each city to change its electoral system.
The city council discussed the electoral change in a closed session last Tuesday and publicly stated that the confidential talks would relate to “anticipated litigation” based on a letter Victorville received on Aug. 12.
The California Voting Rights Act
The letter in August came from attorney Scott J. Rafferty, who sent it on behalf of Neighborhood Elections Now.
Rafferty alleged that the city’s current at-large election system violates the California Voting Rights Act, or CVRA, and said that his client was ready to move forward on a lawsuit.
California's Legislature passed the CVRA in 2001, creating a ban on at-large elections in city if they "would impair the ability of a protected class" to "elect candidates of its choice or otherwise influence the outcome of an election." The act sets broad guidelines that are meant to be "construed liberally in furtherance of" the "intent to eliminate minority vote dilution."
Victorville’s head lawyers, City Attorney Andre de Bortnowsky and Deputy City Attorney Tara L. Taguchi, recommended in a four-page memo that the city council approve a “Resolution of Intention to transition from at-large to district-based elections” at its Monday meeting, according to agenda materials.
“The public interest is better served, and taxpayer dollars better spent, by making a voluntary transition to by-district elections,” Victorville’s attorneys stated, “given the uncertainty in defending such litigation and the extraordinary cost of a such a lawsuit, even if the city were to prevail.”
Rafferty specifically alleged that Victorville’s at-large system discriminates by “diluting the influence of Latino voters.” According to the 2020 Census, more than 52% of Victorville residents 18 and over identify as Latino/Hispanic.
The letter does not present conclusive evidence that Victorville’s current election system is discriminatory. Instead, it offers general statistics and assertions, including that Latino voter turnout is low in the city and 61% of Victorville’s population below age 18 is Latino.
(While people under 18 can't vote, the letter states that "these young people represent the future of Victorville’s economy, society, and electorate" and claims the city's current voting system is a barrier to them.)
The letter asserts that Neighborhood Elections Now conducted its own analysis of Victorville’s 2018 elections results and determined that “Rita Ramirez was preferred in Latino precincts to a substantially greater degree than in white precincts.”
Presumably, this is a reference to a report previously commissioned by the city after Eric Negrete, who lost to Ramirez in 2018, alleged that voter fraud was the reason for Ramirez's electoral victory. The city's report produced inconclusive results on the allegation. (Ramirez has since been removed from the council.)
As both Rafferty and Victorville's attorneys state, the bar is relatively low for evidence required under the CVRA to successfully sue a city for its at-large voting system.
A plaintiff does not need to prove that a city’s voting system successfully advantages white voters over non-white voters in California, or that there is even an intent to do so. Rather, the plaintiff merely needs to show that “a minority group voted differently than the rest of the electorate,” Rafferty stated in the letter, a concept the law defines as “racially polarized voting.”
“Whenever there is a strong Latino candidate of choice, it is mathematically necessary for some other candidates to be negatively polarized,” Rafferty wrote in his letter. “This should not be misinterpreted as a statement about the qualities or intentions of those individuals; they are simply less preferred by the Latino electorate.”
Victorville “has asserted and believes” that the allegations “lack evidentiary support for any Latino or other racially polarized voting,” the city attorneys stated.
However, they continued, if Victorville does not approve the resolution by Monday, “Rafferty can embroil the City in expensive litigation to force a district-based electoral system, leaving the City’s electoral system in the hands of a court.”
A 45-day clock has been ticking
The reason Rafferty has such leverage is that Sept. 27 marks the deadline under California’s Elections Code for Victorville to either respond to his complaint or see his lawsuit move forward.
California gives cities 45 days after receiving “a potential plaintiff’s threat letter” to confirm that they intend to switch to district-based voting. If a city does not pass a resolution of intention within that time, the assumption is that the city wants to fight the allegations in court.
Even if the lawsuit is avoided, transitioning won’t be cheap for Victorville taxpayers.
The city’s lawyers stated that the total cost of shifting to a district-based system is still unknown. It is certain to include up to $30,000 that Victorville must pay Rafferty even if it meets the 45-day deadline to cover attorney fees he has logged while building a potential case against the city.
Victorville also would take on “considerable expenditures” in creating its new electoral system, the lawyers stated, in order to hire private consultants like a demographer, hold public hearings, “engage in community outreach” and “prepare and publish notices and related district map materials.”
If it approves the resolution Monday, Victorville’s City Council would get a 90-day cushion to finalize and implement a new district-based voting system before Rafferty could proceed with suing the city.
The city could request a 90-day extension from Rafferty if it were to miss that deadline, but there is no guarantee he would grant that extra time.
If the proposed resolution for Monday’s meeting is passed, the city council will have to hold two public hearings within a 30-day period to discuss how five new districts should be drawn in Victorville. Councilmembers would be prohibited from actually considering any draft maps during this period.
Then, the resolution states, at least two more public hearings must occur within a 45-day period in which the city council considers one or more map proposals. The city would have to accept public input at each hearing on the draft maps and other specific proposals for the new district system.
Rules on changing elections in charter cities
Most incorporated places in California operate as “general law” cities, but many in the High Desert are among the minority of “charter” cities in the state, including Victorville.
Adopting a charter is like writing a partial constitution. It gives a city more autonomy by setting its own policies separate from those of California on municipal issues, like the way local elections are conducted, but some state laws are considered a “statewide concern” and untouchable as a result.
A city can usually only amend its charter with approval from voters.
Yet, an exception in California law allows a city council to amend a chartered election system without getting city voters involved, so long as it is done in the name of population equality and geographic integrity required by the CVRA.
Charlie McGee covers the city of Barstow and its surrounding communities for the Daily Press. He is also a Report for America corps member with the GroundTruth Project, an independent, nonpartisan, nonprofit news organization dedicated to supporting the next generation of journalists in the U.S. and around the world. McGee may be reached at 760-955-5341 or cmcgee@gannett.com. Follow him on Twitter @bycharliemcgee.