On July 19, the city of Modesto, California, asked the U.S. Supreme Court to hear City of Modesto v Sanchez, 07-88. The city argues that the California Voting Rights Act violates the U.S. Constitution. The California Voting Rights Act requires Modesto to stop using winner-take-all citywide elections to choose its 5-member city council. Since 1911, only one Hispanic city councilmember has been elected in Modesto, even though 25% of the city’s population is Hispanic. That fact pattern triggers the state law. The state law will force the city to use another election system, unless the city can persuade the U.S. Supreme Court that the California law violates the 14th amendment.
Ballot Access News
Edited By Richard Winger
Q1: Is Modesto a general law city or does it currently
have a Charter?
Q2: When was the California Voting Rights Act passed?
Q3: Is Modesto asking for this hearing NOW because this
year, this Sanchez person sued Modesto for some kind of
voting discrimination?
Q4: Has Modesto already exhausted its appeals through
the California State Court system & this is their final
shot at preserving the voting system that their voters
prefer?
Q5: What is the potential ramifications for the other
cities in California that wish to maintain the present
winner-take-all citywide election setup?
Q6: Will Charter cities be safe in protecting their
current voting system if this appeal either fails or
is not reviewed by the U.S. Supreme Court?
Q1: Is Modesto a general law city or does it currently have a Charter?
Modesto is a charter city, but that doesn’t have a lot to do with this case. General law cities are also subject to the California VRA and, conversely, charter status can’t exempt you from it.
Q2: When was the California Voting Rights Act passed?
The California VRA was signed into law in 2002. See Elections Code Sections 14025-14028 for the text.
Q3: Is Modesto asking for this hearing NOW because this year, this Sanchez person sued Modesto for some kind of voting discrimination?
Sanchez, et. al. filed suit against the city in June 2004, alleging that the city’s at-large council elections discriminate against minorities in violation of the state VRA.
Q4: Has Modesto already exhausted its appeals through the California State Court system?
Yes. Modesto won in county superior court, then lost in the state appeals court. The state Supreme Court agreed with the appeals court.
Is this their final shot at preserving the voting system that their voters prefer?
Maybe. If the law is upheld, I suspect that the original trial court would get involved again in determining a remedy, but I’m not sure how that works. I’m not sure whether the facts of this case (as opposed to the validity of the statute) have been fully adjudicated.
Q5: What are the potential ramifications for the other cities in California that wish to maintain the present winner-take-all citywide election setup?
The potential ramifications are pretty important. There are hundreds of at-large city councils in California and the number of them with voting rights issues is going to increase over time. Just as important, a number of other states have or are considering VRA’s like California’s.
Q6: Will Charter cities be safe in protecting their current voting system if this appeal either fails or is not reviewed by the U.S. Supreme Court?
Generally, no. State laws can and do preempt city and county charters in some areas, and votings rights is clearly one of them.
Modesto has a charter. The California Voting Rights Act of 2001 strangely enough was passed in 2002.
Enrique Sanchez, Emma Pinedo and Salvador Vera sued the city under the law in 2004, arguing at-large elections for the council’s seven seats dilute the power of minority votes.
A county judge ruled in favor of the city in 2005, writing the California law was unconstitutional.
A state appeals court and the California Supreme Court overturned that decision and upheld the law in March.
People I’ve spoken to in my reporting for The Modesto Bee tell me all cities in California that use at-large election formats could be impacted by this law if the U.S. Supreme Court upholds it.
Q1. Modesto is a charter city.
Q2. CA VRA passed the Assembly on June 20, 2002, the State Senate on June 24, 2002, and was signed into law July 9, 2002.
Q3. The Lawyer’s Committee for Civil Rights sued Modesto under the provisions of the CA VRA. The timing results from the Lawyer’s Committee lawsuit, and is not controlled by the City.
Q4. Modesto won in Superior Court, lost in the State Appeals Court, and the State Supreme Court declined to hear the case (my guess is they did so because they knew it would get appealed to the US Supreme Court regardless of the State Supreme Court’s ruling, and the debate at this point centers on provisions of the US, not the CA, Constitution).
Q5. As a practical matter, CA VRA eliminates the compactness and ‘totality of circumstances’ “tests” set up by the Federal Voting Rights Act to identify violations. Under Federal law, jurisdictions must fail those tests, along with tests for polarized voting that results in losses for minority-favored candidates, to be found in violation.
Under CA VRA, there is only one test: if you have polarized voting and the minority-preferred candidate loses, the jurisdiction is in violation.
So yes, I think it is safe to say that there are potentially significant numbers of currently at-large cities, school districts, and special districts that may be vulnerable to a lawsuit under CA VRA.
Q6 This is an excellent question that has not been answered yet. I suspect that the Courts may be able to force charter cities to put a district question on the ballot. But if the voters turn it down, I do not know if the Courts will then be able to force the jurisdiction into districts anyways. That’s likely to be a whole different law battle.
More info on CA VRA:
http://www.ndcresearch.com/vra_info.html
(Disclosure: I am a consultant to the Modesto Charter Review Committee, but I do not have any involvement in the lawsuit. Also, I am not a lawyer.)
One more note on Q4: the case so far has been entirely on the constitutionality of the law.
No Court has yet decided whether Modesto is actually in violation of CA VRA.
If the US Supremes turn down the case or rule against Modesto, the case then goes back to Superior Court for the debate on whether Modesto is actually in violation of CA VRA.
Douglas Johnson writes, I suspect that the Courts may be able to force charter cities to put a district question on the ballot. But if the voters turn it down, I do not know if the Courts will then be able to force the jurisdiction into districts anyways. That’s likely to be a whole different law battle.
I’m not a lawyer either, but I’ve looked at some case law on home rule charters. Two points.
(1) The trend over time has been to narrow the range of subjects that are of “local concern” and in which charters can trump state law.
(2) Election law has, in general, been an exception to (1). But I think the courts will treat this as a civil rights issue rather than an election law issue. Voting rights are clearly a matter of “statewide concern” rather than “local concern”.
I don’t think there’s any question that the legislature thought the VRA would allow the courts to invalidate charter provisions.
If you don’t feel like reading a PDF you can read the text of the act here:
http://www.fairvote.org/?page=1307
It bothers me that the act only applies to at-large elections and not to single-winner districted election methods. Both classes of methods are capable of impairing “the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election”. A well-designed multi-winner election method (eg. a proportional representation method or a method like asset voting) should be *BETTER* then districted approaches in this regard.
Blogged about this here and here.
I find it interesting / outrageous that the CA voting rights act only applies to local governments that use at-large methods for filling seats and that single winner districts seems to be the preferred remedy. It’s like people have never heard of proportional representation systems.