In 2019, the City of Sunnyvale will be exploring changing to a district-based electoral system for selecting City councilmembers. By City Charter, Sunnyvale currently has “at-large” elections for seven numbered seats that represent the entire city (as opposed to seats that represent defined geographic districts). Cities and other local agencies with similar at-large election systems have increasingly been targets for litigation under the California Voting Rights Act (CVRA), which prohibits voting practices that dilute the votes of racial minorities.
In September 2018, the City Council began a discussion about whether to proactively address CVRA concerns by submitting a Charter amendment to Sunnyvale voters to change the electoral system to district-based voting, the method preferred by the CVRA. Recognizing that this change would fundamentally impact local governance and alter the process by which City voters have elected their representatives for decades, the City is implementing an outreach process that will educate residents and seek community input on this complex issue.
These Frequently Asked Questions (FAQ) and the accompanying Glossary provide background information about the City’s existing election process, the CVRA, and how the City can respond to the CVRA requirements.
Definitions of text in bold italic can be found in the Glossary, located at the end of the FAQ. The definitions will also appear in pop-up boxes if you hover your cursor over the text or touch the text on the screen.
The City of Sunnyvale Charter Section 601 (to view, visit: https://bit.ly/2HFLtJ9) provides for an electoral system that currently requires at-large elections in which Council candidates run on a citywide basis for one of the seven numbered City Council seats. Staggered elections are held in even-numbered years, with either three or four seats open depending on the year. Councilmembers serve a four-year term and collectively select the mayor from their cohort to serve a two-year term.
Many California cities that elect their city councils through at-large elections have been threatened with lawsuits or sued under the California Voting Rights Act to require them to change their election systems to district-based elections. To date, no agency or city has prevailed in CVRA litigation. A loss exposes a city not only to forced changes to the election system (sometimes substantially determined by a court), but also to liability for millions of dollars in attorney fees.
Sunnyvale’s neighboring city, Santa Clara, was recently sued and lost a court case for violating the CVRA while using an at-large, numbered-seat system almost identical to Sunnyvale’s. Under the resulting court order, the City of Santa Clara had to switch to district-based elections in a highly-expedited process. Recognizing that a CVRA challenge would impact fundamental governance issues, could result in potentially significant litigation expenses, and court-ordered changes rather than voter decisions, Sunnyvale’s City Council decided to voluntarily initiate a process to consider switching to district-based elections. After the City Council started this process, the City received a notice letter alleging CVRA violations, the required prerequisite to filing a CVRA lawsuit in court. Action is now necessary to address potential litigation risks.
In an at-large election system like Sunnyvale’s, voters in the entire city elect the members of the City Council. In contrast, district-based elections divide a city into separate geographic districts, and voters within each district vote for candidates residing within their same district. In district-based elections, voters only vote for candidates in their own districts; they do not vote for candidates outside their district.
District-based election systems are currently the only remedy that will protect an agency from a CVRA challenge because the CVRA offers a “safe-harbor” which states that any city that moves from at-large elections to district-based elections is assumed to have addressed purported CVRA violations.
During litigation, the plaintiff must prove the existence of “racially polarized voting,” but does not need proof of voter or elected official intentions to discriminate. There is also no requirement that the protected class can form the majority of eligible voters in a single-member council district.
Since passage of the CVRA, most cities facing challenges to their election systems have voluntarily changed from at-large elections to district-based elections to avoid the significant risks of litigation. The number of California cities with district-based election systems has increased from 28 in 2001 to at least 88 cities today.
The City of Sunnyvale Charter Section 500 currently provides for a Council-Manager form of government, which means that the City is administered by the City Manager and staff, with policy guidance by the Mayor and City Council. This would not change under a move to district-based elections.
If the City moves to a district-based election system, the Mayor could be elected in one of two ways. First, the mayor could be selected by the City Council from within the Council. This is the system that the City uses now. Alternatively, the City could change its system to a separate city-wide election for mayor, which would be separate from the district-based elections for six other Council members. Both of these approaches are acceptable under the CVRA.
The CVRA is largely untested in litigation, but all cities that have litigated to date have lost or settled. The vast majority of cities have chosen to settle by switching to district-based elections in the pre-litigation stages of the process after receiving a demand letter.
In one of the few court cases on the CVRA, the Fifth District of the California Court of Appeals upheld the CVRA against a constitutional challenge in Sanchez v. City of Modesto (2006). The California Supreme Court and the U.S. Supreme Court denied a petition for certiorari, which means that the CVRA law is constitutional. In Jauregui v. City of Palmdale (2014), an appeal determined that the CVRA applies to charter cities like Sunnyvale. Palmdale lost on the merits at trial and, although it appealed that loss, the case settled before a final determination.
The City of Santa Clara went to trial on a CVRA case in May 2018 and lost. Although the decision has not yet been appealed, and hence is not a legally-binding precedent, it is instructive for Sunnyvale due to the similarities between the demographics and the electoral systems in both cities, and because Sunnyvale and Santa Clara are in the same county. The plaintiff argued that Santa Clara’s at-large, numbered-seat system impaired the ability of Asians to elect preferred candidates. The court not only found the existence of racially polarized voting, but also accepted lower standards of reliability for the statistical analysis used to establish it. The court also noted that the “numbered-seat” system of at-large elections is historically suspect, with numerous federal cases holding that it disadvantages minority voters. The court therefore ordered Santa Clara to complete expedited public meetings on district boundaries, decided the boundaries, and, in late July 2018, ordered the City of Santa Clara and the Registrar of Voters to implement district-based elections for the November 2018 election.
In November 2018, the City of Santa Monica lost at trial on a CVRA case. Among other defenses, Santa Monica argued that its at-large election system does not violate the CVRA because districts would not meaningfully enhance minority representation. The court was not convinced by that argument and there is currently a proposed judgment establishing districts and ordering a special election for all council seats on July 2, 2019, based on the rationale that prior elections were illegal. While Santa Monica still has time to appeal that decision, this case is notable because it illustrates the unpredictable and potentially extreme outcomes that might result from litigation.
 145 Cal.App.4th 660
 226 Cal.App.4th 781
As noted above, a loss in court could lead to the establishment of districts by a judge, with very little public input. The City of Sunnyvale will have more time to study districts and opportunity for public input before making the decision about district boundaries if it engages in the process proactively.
The City would also have significant exposure to attorneys’ fees if it chose to litigate. In addition to the City’s own defense costs, which would run in the range of $1-2 million, the City would be subject to a mandatory fee-shifting provision in the CVRA that awards reasonable attorney fees and costs, including expert fees, to the prevailing plaintiff. This applies even if the case settles and single-member districts are instituted after the lawsuit is filed. The plaintiffs were awarded fees in the range of $3 million in the Modesto case and $4.5 million in the Palmdale case. The plaintiffs in the Santa Clara case were recently awarded more than $3 million. The City of Anaheim paid $1.2 million in a settlement fairly early in the litigation process, and the City of Santa Barbara settled the CVRA action filed against it paying $900,000 in attorneys’ fees as part of the settlement. All of these jurisdictions adopted district-based elections as part of their settlements.
Cumulative Voting and Ranked Choice Voting are the most common types of alternative voting systems. However, as noted above, district-based elections are the only method explicitly approved to remedy a CVRA violation, so the City of Sunnyvale would not be assured of avoiding a CVRA lawsuit if it implemented one of these alternative methods. Further, ranked choice voting is generally only used with district-based election systems in California, so a ranked choice system would pre-suppose that Sunnyvale would also switch from at-large to district-based elections.
Moreover, the Santa Clara County Registrar of Voters, which implements Sunnyvale’s elections, does not currently have technology available to allow for implementation of either of these systems, and there is no clear timetable as to when this technology might become available.
The City of Mission Viejo settled a 2018 CVRA lawsuit by agreeing to implement cumulative voting beginning in 2020. Similarly, the City of Santa Clarita settled a CVRA lawsuit by agreeing to implement a cumulative voting system. However, the California Secretary of State filed a letter with the Court in Santa Clarita noting there was no authority for cumulative voting in cities in California. The City of Santa Clarita ultimately agreed to a settlement that moved City Council elections to November, not April, of even numbered years while still maintaining its at-large election system. The plaintiffs in both cases agreed to these resolutions instead of district-based elections. There is no indication that Sunnyvale’s potential plaintiffs would agree to such remedies, or that the Secretary of State has changed its position on cumulative voting since filing the letter in the Santa Clarita case. More significantly, the cities of Mission Viejo and Santa Clarita still remain vulnerable to future CVRA lawsuits from other parties since they have maintained their at-large election systems.
Charter Section 601 currently contains specific provisions for at-large, numbered seat elections. The general rule under Article XI, Section 3(a) of the California Constitution is that charters must be amended in the same way they are adopted – majority vote of the electorate.
AB 2220, passed in 2016, contains language that allows a switch to district-based elections by ordinance, without a vote of the electorate. Although some charter cities have successfully used these provisions to switch to district-based elections by ordinance without challenge, that approach has some risks; the language in AB 2220 does not explicitly address charter cities and this method of switching to district-based elections has not been tested in court. Thus, it is possible that a court could conclude that the CVRA preempts the charter and uphold a change by ordinance in deference to legislative intent and the goals of the CVRA, but it is also possible that a court could find that a charter amendment adopted by the electorate was needed. Moreover, Section 601 of Sunnyvale’s Charter differs from the charters of several cities that have approved the change by ordinance because the Sunnyvale Charter contains a specific and detailed process for at-large, numbered seat elections, and the legislative history of AB 2220 notes that “if the charter of a charter city contains provisions that contradict this bill, the charter would take precedence.”
With all this in mind, the City of Sunnyvale plans to submit a measure to the voters to amend the Charter. This approach is based on:
Council direction to City staff to complete public outreach on this issue.
 Codified in Government Code section 34886 and Elections Code section 10010.
There are two possible dates for putting a charter amendment on the ballot: March 2020 and November 2020.
The potential plaintiffs have stated that their preference is for district-based elections to be implemented with the next general municipal election for City Council in November 2020. Such a timeline is possible if a Charter amendment measure is placed on the March 2020 ballot.
The City Council has expressed a desire to consider public input on this important governance issue before making a final determination on the date of a Charter measure. Council is currently scheduled to make that determination no later than June 2019, but the decision could be made at any time if necessary to address potential litigation.
Many factors may be considered, but electoral district population is the main requirement. Other factors may include, but are not limited to, the following:
The City of Sunnyvale is initiating a phased approach to study implementation of a district-based election system:
The community will be providing valuable input on how the City is governed for years to come. Public input will help decide the timing of future elections, how the mayor should be elected, and how and where the district lines should be drawn. Understanding what community members view as important “communities of interest” in Sunnyvale is important as decisions on district boundaries are being made. Your voice can help ensure that the final Council districts appropriately represent your community.
You can follow the Council Election System Changes Project on this website, where you will find more information about the project, a portal for input and comments, and schedules of City Council and other public meetings.
In an at-large election system like Sunnyvale’s, voters in the entire city elect all members of the City Council.
The California Voting Rights Act (CVRA) was adopted in 2002 (California Elections Code § 14025 et seq) to prohibit voting practices that dilute the votes of racial minorities. The CVRA prohibits at-large elections that impair the ability of a protected class to elect candidates of its choice. The CVRA is broader than the federal Voting Rights Act and alters established paradigms of proof and defenses under the federal Voting Rights Act, making it easier for plaintiffs in California to challenge the electoral systems of any city or district that does not elect its governing board “by-district.”
A Charter is like the City’s constitution. Charter city law, per the California Constitution, allows city regulations to trump State law for municipal governance.
A City charter can only be amended by a majority vote of its electorate.
Cumulative voting is an electoral system generally used in an at-large election in which more than one winner will be chosen. This system allows a voter to cast more than one vote, with the number of votes generally equal to the number of winners to be selected. For example, if there are three seats up for election, a voter can cast three votes. A voter can cast all three votes for a single candidate, or two for one candidate and one for a second candidate, or one vote each for each of three candidates.
See “California Voting Rights Act.”
District-based elections divide a jurisdiction into separate geographic districts, and voters within each district vote for candidates residing within their same district. In district-based elections, voters only vote for candidates in their own districts; they do not vote for candidates outside their district.
Per the federal Voting Rights Act, racially polarized voting exists when the electoral choices that are preferred by voters in a protected class and the electoral choices that are preferred by voters in the electorate at-large differ.
 Voting Rights Act of 1965 § 201; 52 U.S.C. § 10501 (formerly 42 U.S.C. § 1973aa)
This system gives voters the option of choosing multiple candidates in order of preference. After ballots are counted, if no single candidate receives a majority, the candidate with the fewest top-rank votes is removed from the ballot, and the votes of voters who ranked that candidate first are apportioned to those voters’ second-choice candidates. This process is repeated by eliminating the candidate with the fewest top-choice votes and reapportioning votes among the remaining candidates until one candidate gets a majority.
A safe harbor is a provision of a law or a regulation that specifies that certain conduct will be deemed not to violate a given rule. The CVRA’s safe harbor provision states that any city that moves from at-large elections to district-based elections is presumed to have addressed purported CVRA violations.