On January 14, 2020 South Coast Water District received a letter from attorney Phillip Greer threatening legal action against South Coast Water District for alleged violations of the California Voting Rights Act ("CVRA") (Elec. Code 14025-14032) unless the District Board took action within 45 days to voluntarily convert to a by-division election system. The District’s receipt of this letter was reported out of the closed session portion of the January 23 Board meeting.
On February 20, 2020 the Board of Directors held a meeting where they received comments from several individuals who implored the District to consider other options before moving quickly to district elections. The Board voted to postpone action on Resolution 9-19/20, entitled “A Resolution of the Board of Directors of South Coast Water District Expressing the District’s Intention to Initiate Procedures for Establishing and Implementing By-Division Elections for South Coast Water District Board of Directors.”
On February 27, 2020, the Board of Directors voted 5-0 to table Resolution No. 9-19/20 and directed legal counsel to discuss potential solutions with Mr. Greer to resolve the concerns relating to the alleged violation of the CVRA.
In response to the CVRA demand received by the District, the District has engaged special counsel, Ben DeMayo. Mr. DeMayo served as County Counsel for the County of Orange during its transition to by-division elections and is an expert on CVRA issues.
District Counsel and Mr. DeMayo are working with the plaintiffs’ attorney to develop a mutually acceptable timeframe to work through the public hearing process required by the CVRA.The District plans to work through the public hearing process so that any changes made to the election system will be adopted after the results of the 2020 census are released, and will be in place by the 2022 election. This will ensure the public has ample time to participate in the process and will eliminate any need to duplicate the process after the census results are released. The Resolution of Intent will be made available to the public at least one meeting before it is considered by the Board to allow for public input.
The District also intends to conduct a feasibility study related to possible annexation of disenfranchised voters.
As a result, the District is reaching out to our customers and asking for your opinion on this matter. You can share your thoughts on Districting here or send your comments by mail to SCWD, 31592 West Street, Laguna Beach, CA 92651. You must include your full name and address in your response.
Frequently asked questions:
Why is the District transitioning to by-division elections?
South Coast Water District (District or SCWD) received a letter from an attorney threatening to sue South Coast Water District for alleged violations of the California Voting Rights Act ("CVRA") (Elec. Code 14025-14032) unless South Coast Water District voluntarily converts to a by-division election system. The letter triggers a mandatory/statutory requirement for the District to respond in 2 phases. First, the District is required to adopt a resolution of intent to investigate the possibility of transitioning to by-division elections. Second, the District must design the division boundaries. If these requirements are not met, litigation would ensue.
What is the California Voting Rights Act?
The California Voting Rights Act, or CVRA, allows plaintiffs to sue a local agency where at- large elections may prevent minorities and protected classes from electing candidates of their choice to the local office and to recover their attorneys' fees if they are successful. Moreover, a potential plaintiff can recover up to $30,000 in attorneys' fees for preparing a demand letter even if an agency immediately makes the change to by-division elections. To date, no local agency has successfully defended itself against a CVRA challenge.
What's the difference between at-large and by-division elections?
Currently, the District has an at-large election system, where voters of the entire District have the ability to vote for all members of the Board. Switching to by-division elections will require the District to create five geographic voting areas within the District, each assigned to one seat on the Board. Voters within each voting area will vote only for candidates for the seat on the Board assigned to their voting area. Regardless of the voting area, all Directors will continue to represent the entire District.
Who creates the voting area boundaries?
The Board will work with a professional demographer to create proposed voting area boundaries, which will be refined and revised following the public's input. Ultimately, the Board will adopt a proposed map that will be reviewed and approved by the Orange County Registrar of Voters.
Why is this procedure so fast?
The California Voting Rights Act ("CVRA") establishes very strict and tight timelines. Under the CVRA, South Coast had 45 days from January 14, 2020, the day it received the demand letter, to adopt a resolution of intent to consider a transition to division-based elections. Once that happens, South Coast has only 90 days to enact an Ordinance establishing boundaries for division elections and a transition plan to make the switch. During these 90 days, South Coast has to conduct 4 public meetings, 2 before drawing the proposed division maps and 2 after the proposed division maps have been published.
What happens if South Coast doesn't go to division elections?
If South Coast doesn't switch to division elections within the timeframe laid out above, South Coast may be sued for violation of the CVRA. The CVRA has an attorneys' fee provision, allowing a plaintiff to collect his or her attorneys' fees if the plaintiff is successful. To date, no public agency has won a CVRA challenge in court. Most of the public agencies end up having to pay the plaintiff's attorney fees, which can range into the millions of dollars.
What is the current and potential sequencing of elections?
Under South Coast's current system, three board members are elected at one election and the other two elected at the next election. Incumbent directors elected at large will serve out the balance of their terms, and thereafter will be elected by division in which they reside.
What is the criteria for districts?
Both state and federal laws set forth criteria for drawing districts. They must be nearly equal in population and should consider topography, geography, cohesiveness, contiguity, integrity, and compactness of territory as well as the community of interest within the districts.
When will the new voting areas take effect?
Once the transition is approved, elections will be transitioned to by-division elections beginning with the November 2020 election. The current Directors will continue in office until the expiration of their terms in 2020 or 2022.
How will the change to by-division elections affect me?
Beginning in November 2020, voters will only be able to vote for one Director who resides in the voting area in which they live.
What is the cost to taxpayers?
Since lawsuits are driving a lot of the change, the cost is largely dependent on how the governing body chooses to respond. The CVRA has capped the attorneys' fees recoverable at $30,000 if the public agency switches to division elections in a timely fashion.
If the public agency doesn't switch to division-based elections, and a lawsuit is filed and the plaintiff prevails, the public agency is liable for litigation costs and the plaintiff's attorneys' fees, which have ranged in the millions. To date, no public agency has prevailed at trial when charged with a CVRA violation. It appears the $30,000 in fees is essentially automatic. We will continue to update the public as we get more information on other related costs.
Public agencies that switch to by-division elections often do so with the assistance of a qualified demographer. The public agencies often work with attorneys during the process to ensure compliance with the statute.
General Facts about By-Division Elections: