Voting Rights Act: A fee-generator for lawyers?

In August 2008, Madera Unified School District, the Madera County Office of Education and Madera County’s registrar of voters were sued by the Lawyers Committee for Civil Rights saying the way the district elected its board members disenfranchised Latino voters.

Their district’s use of an “at-large“ voting method in which all voters cast ballots for all candidates prevented more Latinos from being elected to the board, the lawsuit claimed.

Within six weeks of the suit being filed, the district said it would switch to electing its seven board members using individual districts – only voters in one district vote for the candidate seeking to represent that district. To avoid confusion with school districts, educators refer to the board member districts as “trustee areas.”

Upon resolution of the case, the Lawyers Committee requested legal fees of $1.1 million, which, as the successful plaintiff in a case brought under the California Voting Rights Act, means the defendants pay the costs.

“You never want to see a waste of anything, but public school funds of this size being spent on this kind of litigation – against the backdrop of financial hardship we’re all facing – is very difficult,” said Geri Kendall Cox, chief business and administrative services officer for the Madera County Office of Education.

A superior court judge released the county office and the registrar of voters from being responsible for the legal fees, which he said, were excessive.

The district, however, did not respond to a warning letter from the Lawyers Committee prior to the lawsuit’s filing saying they might be out of compliance with the state’s Voting Rights Act and so they had to pay – about $300,000 through their insurance, according to Cox.

As for the Lawyer’s Committee, last fall they filed an appeal of the judge’s order seeking the full amount of the legal fees they initially requested.

Robert Rubin, the committee’s legal director, helped write the California Voting Rights Act.  So did Joaquin Avila, co-counsel in several of the Lawyers Committee’s voting rights lawsuits.

What happened in Madera is happening elsewhere in California.

“The California Voting Rights Act is having a pretty big impact across the state,” said Larry Shirey, a field representative for the District Reorganization Office, School Fiscal Services Division of the California Department of Education.

“It’s a quiet change but a lot of districts are moving from at-large to trustee areas.”

Shirey says the state Board of Education has granted roughly 25 waivers in the past two years for districts seeking to change from at-large district elections. State law says voters must approve such a change. The board waives that requirement, primarily to save districts money.

At the board’s meeting scheduled for May 11 and 12, the Mendocino County Office of Education seeks such a waiver. Visalia Unified secured a similar waiver at the board’s April meeting. Reef-Sunset Unified in Avenal did so in March.

Much of the activity on the issue is instigated by the San Francisco-based Lawyers Committee, which has filed five lawsuits and sent numerous warning letters to cities, special districts and school boards – many of them in the Central Valley with a large Latino population.

Besides Madera, the Lawyer’s Committee has filed against the cities of Modesto and Tulare, Ceres Unified School District and the Hanford Joint Unified School District.

Rubin says he’s just ensuring the voices of minority voters aren’t silenced or diluted – as at-large elections sought to do in the South.

“All we’re talking about here is the ability of a community to elect candidates of their choice,” Rubin said in an interview with Capitol Weekly.

Since the lawsuit, Rubin notes that four of the Madera board’s seven members are Latino. Previously, the board had one Latino who had been a member for nearly 20 years.

 “It’s our well-founded belief we’re not going to have to sue every school district in the state to ensure compliance with the voting rights act,” Rubin says.

The state’s 1,000 school districts are a target for Rubin because “fully two-thirds of all school boards in California do not have a single Latino member.”

Until recently, almost 90 percent of the state’s school districts used at-large elections to choose their board members.

As to the committee’s legal fees, Rubin intimates that it is part of the strategy for convincing districts to change their ways.

“School boards need to reflect the demographic composition of the communities they serve. If they don’t, then how those board members are elected should change. If it doesn’t, you will be sued and it’ll be expensive.”

Indeed, the City of Modesto, the first Voting Rights Act case filed by the Lawyers Committee cost the city $4.7 million. Of that, $1.7 million went to Modesto’s lawyers and the $3 million was divided between the Lawyer’s Committee and outside attorney Heller Ehrman.

Modesto ultimately settled and switched to district rather than at-large elections.

“School districts and county offices with budgets strained by tough fiscal times are understandably reluctant to devote resources to changing … electoral systems,” writes Marguerite Leoni, a Marin-based lawyer who specializes in voting rights act issues.

But, because plaintiffs are awarded legal fees, she says, the “alternative to proactively changing may be to get by-trustee elections after litigation and then pay huge sums to attorneys, even if the case settles early.”

California’s Voting Rights Act was carried by then Sen. Richard Polanco, a Los Angeles Democrat.

It was endorsed by the American Civil Liberties Union for which Rubin was previously a staff lawyer and the Mexican American Legal Defense and Education Fund, Avila’s employer.

At the time, the stated goal of the law was to make it easier than under the Federal Voting Rights Act for racial and ethnic groups to challenge at-large elections.

Generally, the federal act limits judicial intervention to cases in which the court rights a wrong or provides a remedy to an existing inequity. California’s version is far more proactive.

Under the law, at-large elections are banned if they “impair the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.”
A “protected class” is voters of a minority race, color or language group.

Groups like the Lawyers Committee win if they demonstrate that at-large elections cause “racially polarized voting.”  

That is defined as where the choice of candidate of a protected class is different than the choice of the rest of the voters.

As with the Federal Voting Rights Act, the party bringing the lawsuit doesn’t have to prove there is intent to discriminate.

Switching to district elections comes with a cost – at a minimum a consultant to examine census data and draw the new district lines. And continue updating those lines each decade.

All parties agree that with the release of the latest census results, the time to weigh whether to abandon at-large elections is now.

“The census makes things a little more visible if there’s a mismatch between demographic composition on the board and the demographics of the general population,” says Shirey.

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d’s Note:  Corrects division of fees, 25th graf to include outside attorney; reference to intent in federal Voting Rights Act, 36th graf