Op-Ed: Sunnyvale’s Elected Leaders Expose City to Risk of Costly Civil Rights Lawsuit

Sunnyvale’s elected officials have put the city at risk of a civil rights lawsuit over its voting system. At any moment, Sunnyvale could be thrust into a hurricane of events that could end with the city paying thousands, even millions of dollars, in attorney’s fees and related costs—all because the City Council is dragging its feet in moving from an at-large to a district-based voting system.

Sunnyvale is at risk under the California Voting Rights Act (CVRA) because it has a voting system that requires candidates to run for specific seats on a citywide basis. This is called an at-large, meaning citywide, numbered-seat system. It’s problematic because of its troubling history and its potential conflict with the CVRA.

Sunnyvale’s voting system has been used in Southern former slave states to prevent minorities from acquiring any influence in local government. Sunnyvale is the only California city left with this system. Santa Clara was a holdout until June, but changed because it was sued and lost.

The CVRA makes it easy for a minority to sue a government that uses at-large voting. It prohibits the use of an at-large voting system if it results in racially polarized voting. To prove racially polarized voting, a protected class person only has to show the voting system impairs the ability of a certain class to elect candidates or its ability to influence the outcome of an election.

According to the law, members of the protected class do not have to prove intent to discriminate. The CVRA also requires the government to pay all the plaintiff’s legal and court fees if they win—that includes cases in which the government settles before a verdict is reached.

Let’s be clear: Sunnyvale is now the target.

It’s the last California city with this kind of problematic voting system. Civil rights lawyers have Sunnyvale in their sights; no city has won a CVRA lawsuit.

Election laws allow a Sunnyvale resident who’s a member of a protected class to send a notice to the city asserting that its voting system violates the CVRA. The protected class member then must wait only 45 days before filing a lawsuit. To avoid the lawsuit, the city must within the 45 days pass a resolution stating its intent to move to district-based elections, the specific steps it will take to make this transition and an estimated time frame for doing so.

If the city fails to pass the resolution, the person can sue.  If the city passes the resolution, the city then has only 90 days to move to district based elections. If the city misses either deadline, the protected class member can sue and Sunnyvale could face attorney fees and costs well into the six or even seven figures. To avoid the lawsuit Sunnyvale would have at most 135 days from the notice to move to district based elections.

Facing this risk, has the City Council moved with all due haste to enact a district based election system?  Nope.

The council instead has acted as though Sunnyvale faces no risk. On Sept. 5, the council directed city staff to conduct outreach about whether to put a measure on the November 2020 ballot about moving to district-based voting at some unknown time after that.

However, if a protected class member sends a notice to Sunnyvale tomorrow, the city could be forced to move to district-based voting by Valentine’s Day, 2019.

To avoid that, the City Council must come up with a plan to move to district based voting before November 2020, and must do so quickly before it is forced to do that by an expensive lawsuit. Any other action would be irresponsible.

David Wessel is a concerned Sunnyvale resident, Bay Area lawyer and past president of the Democratic Club of Sunnyvale. Josh Grossman is a candidate for Sunnyvale City Council Seat 2. Opinions in this article are the authors’ own and do not necessarily reflect those of San Jose Inside. Send op-ed pitches to [email protected]

21 Comments

  1. Districts will be gerrymandered so Sunnyvale will have as many voters of one ethnic group as possible.

  2. Council is not doing nothing. Rather, it is acting deliberately, and specifically intends to empanel a citizens commission next year to review this issue. But Sunnyvale doesn’t rush things. As our Council pointed out, the Sunnyvale way is to have an open, transparent process with citizen involvement. In the event that we are sued, yes, we would need to accelerate our time table. But it seems likely that by acting pro-actively, individuals or organizations that might otherwise sue under the CVRA might be willing to wait for a process meant to place a charter amendment on the 2020 ballot to conclude, especially since that will also allow us to establish districts on the basis of the results of the 2020 census.

    Now, David and I were both in attendance at the special council meeting on September 5 discussing this issue. David opened his remarks by stating that he was “honored to be addressing the best City Council in the nation”, and then delivered comments on behalf of John Cordes.

    Josh did not attend.

    Honestly, I find it confusing, given the frankly alarmist tone that this article takes, that neither of you saw fit to raise your concerns to Council at that meeting. As for me, I am happy to see the process take its course. We should not be acting hastily solely for fear we might be sued.

    • Richard, thank you for your comment. However, it would be well to do a little research before making one. I have been doing a great deal, which lead me to write this op-ed.

      The Sunnyvale City Council has not yet taken any action toward moving to a district-based voting system. The action proposed, a study lasting a year or more, which might possibly result in an initiative for some kind of new voting system being put on the ballot in November, 2020, is as bad as no action. The lawyers for the winning plaintiffs in the City of Santa Clara are very experienced with a city’s delays. They’ve been dealing with Santa Clara since 2011. They are not likely to be patient. The suggestion that these lawyers are not looking at Sunnyvale is frivolous. You may have met one of them. He was at the City Council meeting on Sep. 5.

      Sunnyvale’s at large voting system is made statutorily suspect by the CVRA. A protected class person who gives notice to Sunnyvale that its voting system violates the CVRA has the right to recover attorney’s fees and expert fees from the gIving of the notice, even before a lawsuit is filed. Attorney’s fees and costs are capped at $30,000 only if the City passes a resolution within 45 days from the notice that it will move to district based voting and does move to district based voting within 90 days of passing the resolution.

      I suggest you look at Jauregui v. City of Palmdale (2014) as an example of what could happen to Sunnyvale. Palmdale was sued by 3 residents alleging a violation of the CVRA. The plaintiffs won at the trial court, and the trial court awarded the plaintiffs attorney’s fees and issued a preliminary injunction against Palmdale preventing it from certifying the results of its November, 2013 election. The trial court ordered Palmdale to hold another election. Palmdale appealed. The Court of Appeal stayed the trial court’s order while the appeal was pending. Palmdale argued that as a charter city it was not subject to the CVRA. The Court of Appeal rejected Palmdale’s arguments, holding that charter cities are subject to the CVRA. The Court of Appeal also affirmed the trial court’s order stopping Palmdale from certifying the results of its November, 2013 election. Ultimately a settlement was reached which included Palmdale paying $4.5 million in attorneys’ fees to the plaintiffs.

      There are other cases in which cities suffered such awful loses. The Santa Clara case is the most recent.

      The only voting system which would make Sunnyvale safe from a CVRA lawsuit over its voting system is a district-based voting system. To avoid such a lawsuit, the City Council should make it clear now that Sunnyvale is on its way to having a district-based voting system by November, 2020.

  3. This is insane, I know at least four other cities in the county that are at-large. I don’t believe anything these two say after stressing that lie more then once.

    These two are idiots and a vote for Josh means you deserve what you get. A lying politician.

    This type of rubbish is so frustrating. Direct lies shouldn’t be allowed to be written.

    For a small city like Sunnyvale, it makes sense to be at-large. It can be difficult to find people from specific districts who would want to run and are quality candidates. If it’s just one person running for a seat they get the job and it doesn’t matter if they are able to do it or not. The cities around Santa Clara County that have the most turmoil are separated into districts=unqualified representatives.

    • Mr. Mitchell,

      Here is a direct quote from the City of Sunnyvale Staff Report to Council for September 5:

      “Sunnyvale is subject to the CVRA because it has an electoral system that provides for at-large elections. Sunnyvale’s system includes an additional feature, candidates run for specific seats but on a citywide basis. See Charter Section 601. This type of system is commonly referred to as a “numbered post” or “numbered-seat” system. Although uncommon at the local level in California, a few cities historically used this type of system. Our research indicates that all except Sunnyvale have switched to district elections, either through settlement of litigation or by court order.”

      You should do your research before accusing someone of lying.

      You should also look at the Jauregui v. City of Palmdale (2014) case. Palmdale is about the same size as the City of Sunnyvale. In the civil rights lawsuit against the City of Santa Clara, Santa Clara was recently ordered by the trial court to switch to a district-based voting system. Santa Clara is smaller than Sunnyvale.

      • It is not quite correct that Sunnyvale is the last to have “from district” elections, also known as numbered seats. San Leandro uses this method, albeit combined with ranked choice voting rather than plurality (first-past-the-post) voting as Sunnyvale uses. Cities that use plurality from district like Sunnyvale if the data I found are correct: Newport Beach, Reedley, and Woodside.

        The dominos are indeed falling though. Cities that have or are in the process of switching from “from district” to “by district” elections as a result of pressure brought to bear under or concern driven by the California Voting Rights Act: Santa Ana, Elk Grove, and Alhambra.

        • Mr. Jordan,
          In the op-ed we rely on the research and statement of the Sunnyvale City Staff’s Report to the City Council set out above. If you would provide links to the data you found, we will revise the op-ed to reflect that data. Thank you.

  4. There’s an amusing dimension to this discussion.

    It really goes to the heart of one’s theory of “democracy”.

    One view of “democracy” is that it is pure majority rule. “The voice of the people is the voice of God.” Implied in pure majority rule is the proposition that minority views have NO say in anything.

    Democrats seem to like this view when they are in the majority. Nancy Pelosi reportedly locked conference room doors to exclude minority Republican congress members during the drafting of Obamacare legislation.

    The view that considerations other than pure majority vote should taken into account is a departure from pure “democracy”. One such consideration is geography.

    Mixing democracy and geography results in district elections. It also results in the electoral college. Hmmmmm.

    What a weird and strange world we live in when the past president of the Democratic Club of Sunnyvale is arguing in favor of the electoral college or it’s cousin.

    Since I like the electoral college, I guess I would have to say I like district elections.

    • First off, the USA is a republic, not a democracy. The pledge of Allegiance does not contain the phrase “…and to the democracy for which it stands…”
      Balkanizing a geographical unit as small as Sunnyvale makes no sense. District elections in cities brings out a gaggle of one trick pony candidates with one issue agendas. It has proven to be a failure in San Jose, a much larger city than Sunnyvale.

      • > First off, the USA is a republic, not a democracy.

        JMO:

        I’m not disagreeing with anything you say.

        Merely observing that Democrats THINK they live in a “democracy”. That is, until they want to whine about some “minority” being “oppressed”.

        Then they are all FOR minority “rights” provided by a “republican form of government”.

  5. David and Joshua,

    If I’m correct in my assumption that most US Mayors are elected by that particular municipality’s populace: while you’re at it, you should also call out Sunnyvale as one of few cities where the mayor is not elected by the populace. Glenn Hendricks has made a nightmare of Sunnyvale for decent people, who increasingly can no longer afford to live there — despite having been born there, or having lived and worked there for decades — as have his predecessors.

    • You’re not correct.

      I couldn’t find stats for the US. But in California, a Rice University study of California mayoral elections quotes the statistic that as of 2016, only 168 of 482 California cities directly elect their mayors (34%). In Santa Clara County, only 5 of 15 cities directly elect their mayors. Appointed mayors (and more specifically a council/manager form of government like Sunnyvale’s) are the most common form of municipal government in California.

      • I should have qualified as to municipality size; in which case, I suspect I certainly am correct, as regards large municipalities in the US (I never limited my comment to California, as you have). Sunnyvale is a large city, the July 2017 population having been estimated by the US Census Bureau at 154K [1]. That would place it as the 36th largest city in California [2], and the 166th largest in the US [1], population wise.

        From my understanding, most large US Municipalities directly elect their mayors. FromMayor–council government (also note, it is not noted as to whether there are more council-manager governments in the US):

        The mayor–council government system is a system of organization of local government. It is one of the two most common forms of local government in the United States and is also used in Canada. It is the one most frequently adopted in large cities, although the other form, council–manager government, is the local government form of more municipalities.

        Characterized by having a mayor who is elected by the voters. …

        For three large US city examples, which are actually estimated for2017 as slightly smaller than Sunnyvale population wise: Kansas City, Kansas [3]; Pasadena, Texas [4]; and Springfield Massachusetts [5]; directly elect their mayor.

        Wiki Page References

        [1] List of United States cities by population. (Note: this page is currently based on the 2017 US Census Bureau Estimate, unlike the Sunnyvale Wiki page’s ridiculously out of date (2010) demographics information )

        [2] List of largest California cities by population. (Note: this page is currently based on the 2015 US Census Bureau Estimate, versus the 2017 estimate, and Sunnyvale has now surpassed Pomona which has a 2017 estimate of 153K (See Reference [1].)

        [3] Kansas City, Kansas

        [4] Springfield, Massachusetts

        [5] Pasadena, Texas

        • Apologies, I had meant to, and should have deleted, this sentence from my last comment:

          (also note, it is not noted as to whether there are more council-manager governments in the US)

          <

      • By the way, Jim [1], what was your response to the issues noted in the linked article below?

        Just found the following September 6th NBC article, after making my above comments. Apparently lifelong and long term residents aren’t the only ones upset by the insanely increasing Tech Campus growth – with no regard for the Public and small business owners – which has been emanating from Sunnyvale’s Mayors, Vice Mayors, and Council Members, for quite the time now.

        Rapid Growth in Sunnyvale Spurs Concerns in Public Safety

        Police officers and firefighters in Sunnyvale are going public with their concerns that the city is allowing business to boom without enough consideration for public safety.

        On Thursday, the public safety officers union sent a letter to City Council members formally requesting they take a closer look at the Sunnyvale’s looming development plans, especially the proposed massive Google campus.

        It’s yet another sign that Sunnyvale is losing its small-town atmosphere to Silicon Valley growth.

        For the city’s public safety officers, who alternate between being cops and firefighters, it’s becoming more than they can handle.

        In one national survey, Sunnyvale has been hailed as the country’s safest city for the past three years. It’s probably one reason Google has applied to build massive projects there, including a reported 1 million square foot campus as well as another 400,000 square foot project, adding thousands of new employees.

        more:

        So, the union sent the letter to City Council members, formally requesting impacts to public safety be specifically analyzed. The letter points out the city last year saw a 13-year high in some major crimes, including rape, aggravated assault, robbery, larceny and vehicle thefts.

        “We are also seeing huge problems with traffic in our city,’ Bellucci said. “That will add response time to our being able to get to you when you call 911, and it’s also causing some problems with some of our pedestrian collisions that are occurring in the city.”

        Further, Jim, are you surrounded – as so many of us are who aren’t Senior Tech Engineers for Apple, et al, which [‘Campus’ Tech Companies] all have an ugly, long history of racism, misogyny, and ageism – by any of these Campuses and, unaffordable to most now, housing developments which have obscenely ballooned for over the last five years? Have you taken a long look at the horrified faces of: renters (the ever increasing majority of Sunnyvale residents, who were already a 52% majority, per the 2010 US Census) whose apartment/condo/house rents have tripled in less than a decade; the decades long mobile homeowners forced out, or living in fear of the next force out; or the small business owners whose leases weren’t renewed due to Tech Acquisitions, or whose commercial property leases have doubled? And where will the next Sunnyvale Federal Post Office be relocated to – twice in 5 years, or less – after Google bought that property on East Java Drive, Jim?

        [1] For those unaware, per his current Linkedin page, Jim Griffith has been locally governing in Sunnyvale for almost nine years now (can we say term limits?) as: Sunnyvale Ex Vice Mayor; Ex Mayor; and Ex and Current City Council Member. Jim is also a Senior Apple Engineer since a year and three months after his first election to Sunnyvale’s City Council.

      • Gee, Jim Griffith, I’ll bet my life that you’ve read my above responses to your comment to me. Shy, all of a sudden?

        By the way, I hadn’t known you were a long time Wiki Page Editor, for™ Sunnyvale™; initially signed on as Jokeboy, for that seriously outdated – as to crucial demographics – Sunnyvale wikipage™, when I noted that it was so deceptively out of date:

        (cur | prev) 00:15, 24 September 2013‎ MBisanz (talk | contribs)‎ m . . (71 bytes) (0)‎ . . (MBisanz moved page User:Jokeboy to User:JGriffithSV: Automatically moved page while renaming the user “Jokeboy” to “JGriffithSV”) (undo)

        So let me get this straight, Jim Griffith, you corrected for such things as: dead links; non current Sunnyvale Flags; and punctuation errors; but not for the horrid reality well over 50% of the residents are facing there?

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