The West Sonoma County Union High School District (WSCUHSD) trustees wasted no time at the Feb. 10 board meeting approving a resolution to shift to a by-trustee area election system and seek a waiver of a community vote to have the new system in play by the 2022 board election.
Such a move is the only safe harbor against the risk of a legal battle under the California Civil Voting Rights Act of 2001 (CVRA), one that many cities and school districts in the state can’t win, according to attorney Jonathan Salt of Fagen Friedman & Fulfrost LLP.
Salt’s overview of the CVRA came a month after Superintendent Toni Beal said the district received a letter from community members on Jan. 10 that said they believed WSCUHSD’s at-large elections fail to meet the CVRA’s intent.
The CVRA bars at-large elections “if those systems impair the ability of members of protected classes from influencing the outcome of an election,” Salt said.
Race is the one protected class referenced in the original letter: “Even though the West Sonoma County Union High School District (WSCUHSD) Board of Trustees may believe that its at-large elections have not been racially polarizing and that its makeup fairly represents the nearly 400 square miles of the district, we believe that the at-large election method does not meet the intent of the CVRA,” stated the letter.
Salt continued, “It’s not so much about the protected class status of any trustee. It’s just folks from the community, members of protected classes — are they able to influence the outcome of an election or is their vote diluted in that large system?”
Even though the letter’s author, Dan Northern, and several signatories said they had no desire to file a lawsuit, Salt said the district is now exposed to allegations of a CVRA violation from anyone to compel an election method transition.
Switching to a by-trustee area election system involves hiring a demographer that could charge tens of thousands of dollars to draft trustee voting area maps, he said. Salt said the cost of transitioning to a by-trustee area system depends on the demographer, the district’s size, the number of meetings and how complicated the work becomes.
According to Beal, legal counsel has estimated costs of the demographic study and legal fees numerous times, more recently at $60,000. This estimate is down from an earlier $70,000 estimate in January, per a Jan. 22 interview with Beal.
The lawyer emphasized that those alleging a CVRA violation do not need to demonstrate proof that there was an intention to discriminate against a protected class.
“It’s just if you have that system and someone can prove that it's difficult for members of protected classes to elect candidates of choice, then it could be a CVRA violation,” he said.
“Another key issue with this and a main reason why it's popped up around the state is that it grants prevailing plaintiffs of those challenging a city or a school district the right to recover attorneys’ fees and expert fees, but if a city or a school district were to defend itself with at-large elections, it’s not entitled to that same right,” Salt said.
According to Salt, fighting a CVRA lawsuit has cost some districts and cities hundreds of thousands of dollars and sometimes millions, like the $3 million from Sanchez v. City of Modesto. His presentation listed Rey v. Madera Unified School District as a case where a trial court allowed a preliminary injunction and refuted an election before the election took place “and forced the district to change to trustee-area elections,” Salt said.
The original price to pay in Rey v. Madera Unified School District was over $1 million, but it was lowered to almost $200,000, his presentation slide said.
According to Salt’s presentation, a somewhat recent law AB350 introduces new timeline and reimbursement requirements.
According to Salt, “a prospective plaintiff” can send a demand letter without a proof requirement under the new law, setting timelines into motion and hoops for the public entity to jump through to defend against legal action.
“And even if the district were to do that, in theory, those who sent the letter could seek reimbursement up to $30,000 for their cost of preparing the letter,” he said.
Salt said “there are attorneys around the state that troll and look around for this kind of issue and just send these letters at random knowing it triggers these timelines and knowing they might be able to — you know, if they’ve hired a demographer or used legal services — be able to recover even if the district makes that kind of change or a city makes that kind of change.”
How to transition to by-trustee area elections
In a by-trustee area system, the district would be split into five mostly equally populated trustee areas, Salt said, and each of the five school board trustees would be elected by the voters from their particular section in the district.
“And obviously, all current trustees were lawfully elected and everyone serves out their full term regardless of where they live, but over time, over the next few election cycles, should the board take this step, ultimately, there will end up being one trustee per trustee area,” he said.
The first thing for a public entity to do when moving from an at-large election method to a by-trustee area method is to take legal cover by approving a resolution to announce the transition, according to Salt. “And that would start a 90-day window where somebody would be unable to sue the district for a CVRA violation while that process plays out.”
However, that process needs 2020 census information that won’t be released until summer, halting the transition until the census becomes available, he said.
The transition calls for five public hearings once the process resumes, beginning with two pre-map public hearings before the demographer can draft any boundary lines.
According to Salt, the board and the community give the demographer and likely the board’s legal counsel feedback on possible boundary lines and what neighborhoods belong in the same trustee voting areas at the pre-map public hearings.
“You know, you all live here. You know the community better than any outsider could and that’s kind of what those two meetings are for,” he said.
The demographer takes it from there to map some options for the board for another three public hearings leading up to the board’s vote, Salt said. The demographer’s maps need to have to abide by the U.S. Constitution, with areas as close to equal in total population as they can be, he said.
“It’s irrelevant about (the) number of students or attendees or anything like that,” he said. “It’s not going to be perfectly exact because census blocks are kind of like the Lego pieces for building these trustee area maps and they’re not all the same size and they don’t always round off to a perfect number. But there’s an acceptable variance for being pretty close to even.”
The attorney said the district’s subsections need to be geographically compact, geographically contiguous, or connected, and align with the federal law, the Voting Rights Act of 1965. Communities of interest also factor into how the district is divided.
“This is entirely up to the district and its community for what it thinks makes sense, what neighborhoods, what communities make sense in the district and sometimes that includes looking at attendance boundaries or things like that where folks feel an association with one another,” he said.
Finally, Salt’s presentation said the maps must not tilt the hand for or against any political candidates, parties or an incumbent.
“So, while the district would be able to look at where the current trustees currently reside, map decisions can’t be based solely on that,” he said, meaning ultimately some trustees residing close by could find themselves in the same voting area.
After the board chooses a map following three public hearings for community feedback, the board needs the county committee on school district organization’s approval, demonstrating how the district sought the public’s input.
Next, the selected map would typically head to voters to decide whether to transition to a by-trustee area election system in the first place. But that costs time, money and it means voters can turn it down, even though a by-trustee area election method is the only safe harbor under the CVRA, according to Salt’s presentation.
So, with the resolution the WSCUHSD trustees approved Feb. 10, the district joins many others in seeking a waiver that is available from the State Board of Education to skip that step. With the waiver, the district could implement the by-trustee area method by the upcoming 2022 election, after the county’s approval and filing the voting area plan with the Sonoma County Registrar of Voters.
Salt added that the school board will need to approve adjustments to the district’s sections as needed every 10 years with the new census information to maintain population equality.
Following the unanimous vote, Board President Kellie Noe said Salt would collaborate with WSCUHSD staff on the next steps of the transition process.
Remaining questions and issues
Salt’s presentation slide regarding the timeline said the initial two public hearings need to happen within 30 days, but it was unclear whether that meant within 30 days of each other, 30 days of the start of the transition or something else, as Salt did not address it on Feb. 10.
Beal said on Feb. 15 she was seeking Salt’s response to the question.
Community member Adam Parks asked if there was a way the district could hold off on the transition under safe harbor until the west county school district unification study by the Sonoma County Office of Education is complete, since districts could end up reassembling.
Salt responded that the high school district could choose to wait, but no waiver exists to block the district from any other letters alleging CVRA violation that would compel an immediate transition.
Salt said he was not very knowledgeable about the west county unification process, but that remapping might not be necessary if unifying districts shared borders because the boundaries are set according to total population instead of where students residing in the sections go to school.