By David Burke
On September 17, 2021 attorney Kevin Shenkman sent a letter to the city of Cypress alleging that the city’s at-large elections violate the California Voting Rights Act of 2001 (CVRA). The crux of the allegation is that the at-large system results in minority vote dilution and that the lack of Asian representation in government for a city with 35.2% Asian residents is evidence of a CVRA violation.
Shenkman gave the city 45 days to voluntarily consider creating single-member districts. Yet, more than four months later Cypress is not substantially closer to drawing electoral districts than it was in September, which poses a significant risk for two reasons. First, it is extremely difficult for a city to prevail against an alleged CVRA violation of minority vote dilution. In fact, no city in California has successfully done so.
A plaintiff can prevail by showing “racially polarized voting” in which there is a difference in the choice of candidates that are preferred by voters in a protected class and the choices of the voters in the rest of the electorate. Such voting patterns are very common and the court can even look at the voting preferences of groups in county or state elections, and for ballot initiatives. So although the city of Cypress maintains that they have not found any merit to the allegation that they are violating the law, it is unlikely that a court would agree.
Second, the legal battle would be a drain on the city’s coffers. Santa Clara spent approximately $6 million, unsuccessfully, before agreeing to a voter-approved charter amendment requiring single member districts. Santa Monica has spent over $7 million in a battle that is still being waged in the courts. Given the long odds of success once a lawsuit is initiated—which Shenkman has said will happen by June of this year—it seems more prudent and fiscally responsible for Cypress to transition to districts voluntarily.
Thus far, the City Council has largely delayed that process. The city did recently hold the first of three public forums on January 19, 2022 to “learn more about and discuss several important topics surrounding municipal elections.” But with the specter of costly litigation looming, these forums should have occurred sooner. In the first forum, residents were divided over at-large versus district elections, with some expressing concerns that districts would cause division while others thought they would lead to more effective representation. To be fair, there are arguments on both sides.
Benefits of district elections include ensuring that there is a representative from every geographic area of the city and reducing the cost of political campaigns and candidates’ reliance on large donors. For residents, it can also be beneficial to know exactly who represents them if there is a problem in their neighborhood. On the other hand, some people fear that districts would distract representatives from issues that impact the city as a whole. And in cities with low populations and small districts, it may be difficult to find strong candidates who are interested in running.
In my view, the potential benefits of district elections in Cypress outweigh the costs. Cypress is large enough that there should be many qualified candidates from different parts of the city. Given that hundreds of cities and school boards in California already elect representatives by district, there is also ample evidence that local officials can collaborate on city-wide issues while paying special attention to the districts they represent. But regardless of the pros and cons of district elections, the law is on Shenkman’s side.
Just as Los Alamitos, Fullerton, Garden Grove, Stanton, and other cities did after facing a CVRA challenge, Cypress will likely transition to single member districts soon enough. When that happens, creating an independent redistricting commission is the best way to ensure that the process is motivated by the best interests of the community rather than by political self-interest.
The most effective redistricting processes follow a few core principles. Districts should be of equal population, compact, contiguous, and keep “communities of interest” together, meaning that neighborhoods that share social and economic interests should not be split apart. Unfortunately, when politicians draw district lines, those considerations often take a back seat to what is best for those politicians’ electoral prospects. Elected officials have an inherent conflict of interest when drawing district lines where they may subsequently run for office.
Even those who are termed out have a conflict because they may have a family member or political ally who plans to run. The end result is often bizarrely drawn district lines that put incumbents or their chosen successors into areas with favorable constituencies, or lines that split incumbents who live near each other into separate districts so they don’t have to run against each other.
An independent redistricting commission would prevent those problems because citizens—not elected officials—would be tasked with drawing the district lines. Typically, commission members are chosen via lottery out of a pool of qualified applicants, while making sure that members from different geographic areas of city are selected. Residents who don’t serve on the commission can still participate in public hearings, comment on draft maps, or even submit maps of their own for consideration.
More than twenty cities and counties throughout California including San Diego, Oakland, Long Beach, Sacramento, and Oakland have already put such commissions in place, which can serve as a useful template for Cypress to follow. And although such commissions are not immune from contentious arguments, they are often accompanied by praise from residents who are grateful for a more inclusive and transparent process than having elected officials draw lines behind closed doors.
By creating an independent redistricting commission in Cypress, the City Council would simultaneously put an end to Shenkman’s threatened litigation while giving more residents the chance to participate in the political process. The chance to save the city millions while engendering more responsive government is one the Council should not squander.
Editor’s note: David Burke is a Cypress resident and the founder of Citizens Take Action, a nonprofit focused on creating more responsive government and increasing civic engagement.