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The VICE Guide to the 2016 Election

How California Is Solving Its Voting Rights Problem

And making a couple of lawyers very rich in the process.

by Spencer Woodman
May 26 2016, 7:20am

Photo by Kevork Djansezian/Getty Images

Last year, the California city of Costa Mesa reported that, for the first time, its rapidly growing Latino population had edged white people into a minority‚ the result of a steady demographic shift that is making both the state and the country less white.

But you wouldn't know any of that by looking at the city's lily-white government. Despite past attempts by Latino candidates, Costa Mesa has never elected a Hispanic to serve on its city council, a governing body that is currently all white.

The lack of Latino representation in Costa Mesa is due, at least in part, to the way the city conducts its elections, according to Southern California attorney Kevin Shenkman, who recently threatened to sue the city for what he claims are discriminatory voting practices.

Currently, the city uses at-large elections, a districting system that allows all residents across a municipality to vote for every seat on its local governing body. It's a districting process widely reviled by voting rights activists, but one that nevertheless remains in place in cities across the country.

The effect of at-large districting can be stunning. For instance, in Palmdale, a California city not far from Costa Mesa, where whites make up just 25 percent of the population, Shenkman successfully challenged the local at-large voting system that he claims resulted in repeated losses for black and Latino candidates running for local office, and allowed the Palmdale City Council to remain all white, with one brief exception, for more than 50 years.

In December, Shenkman sent a letter to the city of Costa Mesa, claiming that its election practices were not in compliance with the California Voting Rights Act (CVRA), a unique state-level protection enacted in 2001 to rout out unfair election systems around the state. In the letter—one of nine similar litigation notices Shenkman made against cities and counties across the state that month—the attorney warned that he would file a lawsuit against the city if local officials failed to reform Costa Mesa's voting policies.

Facing the threat of a costly lawsuit, the city worked out a compromise, and announced earlier this month that it would let voters decide whether to adopt districting reforms in a ballot referendum this fall. And Kim Barlow, an attorney who represented the city in the case, has hinted that she knows which way the vote will go, telling the Los Angeles Times that, "Under the CVRA, at-large voting is sort of going the way of the dinosaur, it appears."

Similar battles over voting rights and election fairness have been taking place around California, where rapidly shifting demographics have threatened to upend traditional centers of power in recent decades. As growing minority populations fight for a place in local government, the drawing of voter districts has become a major battleground, determining who gets to have a say in important aspects of civic life. In the past few weeks alone, California's voting rights disputes resulted in a federal voting rights suit against alleged districting discrimination in Kern County; a redrawing of districts in the coastal town of San Juan Capistrano, following a state voting rights suit; and legal action by Shenkman against an allegedly suppressive school district in the Los Angeles area.

"These things are happening all over the state," said Richard Hasen, a professor of law and political science at the University of California, Irvine. "Inertia is a powerful force, and people who benefit from the status quo don't want to change the status quo. Sometimes it takes a lawsuit to force more equitable forms of representation."

Yet despite these districting tiffs, Hasen said, California actually represents a rare bright spot for many advocates in national elections policy. In recent years, as other states remained intent on erecting new barriers to the ballot box, California did pretty much the opposite, enacting a series of new laws that have put the state at the cutting edge of progressive voting policy.

"In California, you have a large Latino population that's growing," Hasen said. "And you couple that with Democratic majority in a state legislature that is willing to protect minority voting rights, then you get a very different situation than in Texas, where Republican legislators are making it harder for Latinos to vote."

He's right: Texas has always had low turnout among Hispanic voters, and passage of the state's voter-ID law has not helped; in the meantime, California, another state with historically low Latino turnout, has recently seen a surge in Hispanic voter registrations—a shift that could hasten political changes already underway in the state, and may even have an effect on the upcoming primary election on June 7.

More recently, California followed Oregon in passing the country's first laws mandating automatic voter registration: Starting next month, every citizen who requests a driver's license or state identification card will begin to be registered to vote in California, unless they specifically opt out. In a state with an estimated 6.6 million unregistered voters, elections officials have predicted that the change could lead to surge in electoral participation in this year's presidential election.

"There is certainly a theory that voter registration as a process was put in place to discourage eligible people from being able to participate," California Secretary of State Alex Padilla, who backed the bill, said in a phone interview. "Government has a responsibility to facilitate participation, and that includes voter registration."

"It is good-government to effectively and efficiently register people to vote who are eligible—why wouldn't we?" Padilla added. "But for me personally, I think: Who is it that tends to be eligible but unregistered? It's working class families, communities of color, and young people. So if we can implement a system of automatic registration, then we're pushing in a direction where the electorate better represents the people."

The idea seems to be gaining momentum: Earlier this year, West Virginia and Vermont became the third and fourth states, respectively, to pass automatic-registration laws, and 26 other states have considered similar measures so far in 2016, according to a report from New York University's Brennan Center for Justice, which claims the new laws could add some 50 million voters to the rolls nationwide.

When it comes to districting fights, Shenkman says that California city officials seem to be increasingly open to voting reform. Of the nine cities and counties that he accused of being in violation of California's voting rights law, he says seven—including Costa Mesa—have already agreed to change their voting districts or to put the question to voters in a referendum.

The attitude, Shenkman explained, is driven in part by fear of sticking taxpayers with a massive legal bill thanks to a provision in the state's voting rights law that requires cities and counties that lose these cases to pay attorney's fees. The city of Palmdale, for instance, agreed to pay $4.5 million last year to lawyers, including Shenkman, who successfully challenged local districting rules.

"That sends a message to other cities: Don't do this," Shenkman declared.

But the lawyer also admitted that the lucrative payday is part of the reason why he and a handful of other California law firms pursue these types of cases.

The litigation "requires the expenditure of thousands of hours of work and hundreds of thousands of dollars in out-of-pocket costs," Shenkman said. "If there was not the potential for financial gain, we would not have been in a position to take that huge risk."

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