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].