Since 2016, an increasing number of cities and other political districts have faced lawsuits under the California Voting Rights Act (CVRA). The CVRA states that an “at-large” method of election (in which candidates are elected citywide rather than by districts) may not be used if it impairs the ability of a protected class to elect candidates of its choice.
In 2016, 88% of California cities had at-large electoral systems and were thus potentially in violation of the CVRA. Proving a violation under the CVRA is a low bar for plaintiffs to clear. Plaintiffs only need to show that there is “racially polarized” voting, under which minority voters prefer different candidates than the majority.
The legal landscape changed in 2016, when the CVRA was amended to allow cities to avoid a potential CVRA lawsuit if (1) the city passes a resolution to switch to district elections within 45 days of receipt of a demand letter from the plaintiffs, and (2) the city reimburses plaintiff legal fees up to $30,000. This amendment led to an explosion of demand letters from plaintiffs’ law firms, sent to nearly every city, school district, sanitation district, and any other type of political district in California that holds at-large elections.
NERA is frequently retained by cities and other political districts that have received these demand letters in order to test for racial polarization. For these analyses, we collect demographic and voting data at the election precinct level from county-level statements of votes, voter registration rolls, and third-party datasets. We then estimate regressions and other statistical models to determine if there is evidence of racially polarized voting as defined by the courts—specifically, whether voting precincts with higher proportions of minority voters prefer different candidates than precincts with lower proportions of minority voters.
From the moment we are retained, the clock is ticking—we must provide high-quality analysis to our client well before the expiration of the 45-day time limit described in the CVRA. Our analysis is one piece of evidence that our clients consider as they decide how to respond to the demand letter.
In most cases, our clients decide to settle. In fact, many cities and political districts have begun to preemptively switch to district elections to avoid the threat of CVRA litigation. Challenging a CVRA complaint in court can cost millions of dollars, and the outcome of these cases is far from certain. NERA’s analyses of racially polarized voting are thus a key piece of information for cities and other political districts facing a crucial administrative and financial decision.