The Los Osos Community Services District Board will look into possibly changing how its directors are elected in hopes of preemptively stopping a potential claim of violation of the State’s voter equity law.
In a staff report for the board’s Jan. 7 meeting, CSD General Manager Ron Munds, said, “The California Voting Rights Act [CVRA] allows for legal challenges alleging that an at-large system has resulted in racially polarized voting within a jurisdiction and seeking a court order that a jurisdiction convert to a district-based election system.”
Munds told Estero Bay News that the CSD has always elected its board of directors through an at-large system, meaning that all registered voters within the CSD’s service area are allowed to vote for all candidates in an election.
Switching to a district system would mean dividing the town into five areas and electing one director from each district. That could prove problematic for an agency that has difficulty getting candidates to run.
Indeed, the November 2020 Election had just one candidate for each of the three seats open for election, and so the County Clerk’s Office canceled the CSD election and named each of the three people on the ballot as walkover winners.
In recent years, Munds said, other agencies, mostly larger cities, have been challenged under the CVRA, with claims that the at-large system “has resulted in racially polarized voting within a jurisdiction and seeking a court order that a jurisdiction convert to a district-based election system.”
Munds said, that “racially polarized voting” under the CVRA means: “Voting in which there is a difference, as defined in case law regarding enforcement of the federal Voting Rights Act of 1965 [52 U.S.C. Sec. 10301 et seq.], in the choice of candidates or other electoral choices that are preferred by voters in a protected class, and in the choice of candidates and electoral choices that are preferred by voters in the rest of the electorate.
“The methodologies for estimating group voting behavior as approved in applicable federal cases to enforce the federal Voting Rights Act of 1965 [52 U.S.C. Sec. 10301 et seq.] to establish racially polarized voting may be used for purposes of this section to prove that elections are characterized by racially polarized voting.”
He added that moving to a district-based election system is considered the “safe harbor” under the CVRA “that prevents a CVRA lawsuit alleging the dilution of protected class voting strength.”
He told EBN that the idea for the agenda item was to prevent someone from filing a claim in court for a violation of the CVRA, which he said comes with an automatic $30,000 bill for plaintiff’s attorney fees.
He explained that “protected” class of voters is in essence minority voters — mainly Hispanic and Black — defined by race.
“It’s an extension of the Federal Voting Rights Act,” Munds said of the CVRA, “but California takes it a step further.”
What’s resulted in such challenges is a situation as was evident with the Federal Americans with Disabilities Act or ADA, wherein law firms sought out disabled clients that would visit businesses in a town to check for compliance with the ADA.
When an establishment was deemed to be in violation, claims with the businesses were filed and were mostly settled out of court for relatively small amounts of money, but also included agreements that restrooms would be upgraded.
That practice has died down considerably now, but SLO County saw a slew of such claims filed in 2005 by a law firm through a Calabasas man.
The CSD has known about the CVRA for some time and Munds said their plan was to wait for the 2020 Census data to come out before deciding on whether to change the voting system.
But a demand letter was sent to the City of Arroyo Grande, he said, which prompted the Oceano CSD into passing a Resolution as a way to protect itself.
The CSD passed Resolution No. 2021-01, which calls for the CSD to investigate the matter for a potential change in the election system, and Munds said it should protect against a claim being filed.
“The Resolution is to avoid a demand letter,” Munds explained. Once the 2020 Census data is released, the CSD plans to hire a demography consultant to look at the data and decide if there are any concentrations of protected voters in town that are being discriminated against with at-large voting.
A resident of Los Osos for over 40 years, Munds said in his experience there are not concentrations of those voters in any given area of town.
“Filipinos are the highest numbers next to Caucasian,” he said. “But they’re pretty well dispersed. Our neighborhoods are fairly well integrated.” There are also many Hispanics in town but they too seem to be dispersed across the community.
But without at least looking into the issue the CSD could be vulnerable and “it would be up to us to prove them right or wrong.”
While State Law caps the initial costs at $30,000, fighting such a claim can run into the millions.
Munds said the City of Santa Monica fought such a claim in court and while it won, it also spent $8 million. That decision is being appealed, too.
“A lot of agencies have tried to challenge it and lost, except for Santa Monica,” Munds said. “But they had to expend a tremendous amount of money.”
So when the Census data is released, which he said could be this summer, they will delve into the matter.
“If we’d done this before the 2020 Census,” he said, “we’d have to do it all over again.”
Studying the issue does not mean making the change will necessarily follow. “This is not to say that we are going to do district voting,” he said.
Should their demographic study show there are not pockets of protected class voters, and therefore no change is needed, it should protect the District from getting a demand letter and the $30,000 attorney’s bill that comes with it.
And if the study does show protected voters being diminished, the next challenge would be how to divide the town into voting districts.
The CSD would have to hire someone to draw up district lines in the community, which Munds said would be along population lines and not area.
That consultant could run up to $20,000 and then they would have to pay the County Clerk to set up the voting districts, which Munds said he has no idea of how much that could cost. “It’s not cheap,” he said, “but it’s the law and it’s the right thing to do.”
How such district lines would be drawn cannot take into account where each of the incumbent office holders actually lives, which is akin to Gerrymandering, and against the law. So the CSD could wind up with more than one director in a newly-drawn district pitting them against each other in the next election.
And, Munds asked, “What if no one [in a district] runs? What happens then?”
As with the last election, candidates for the CSD, ensuring contested elections, are scarce. “This is going to be a challenge for any small district,” he said.
Several years ago, one CSD director had to resign because he moved outside the District’s service area. The other board members chose a replacement, who then had to run at the next CSD election.
Munds said while the town is divided into neighborhoods — for example, Cabrillo Heights, Sunset Terrace, Baywood Park and Cuesta-by-the-Sea among others — “We have to be more scientific than that,” Munds said. The stakes are potentially high.
“We’re not a very rich district,” Munds said. “We have to be very careful. The courts have been very protective of protected classes of voters.”