With the threat of a lawsuit over Pleasanton's current at-large electoral system looming, the Pleasanton City Council "reluctantly" but unanimously approved a resolution declaring the city's intention to transition to district-based elections on Tuesday.
Heeding the advice of legal counsel, Councilmember Valerie Arkin said before voting at the regular council meeting that she and her colleagues only supported the resolution because "there's very likely potential for costly litigation, and very unlikely that we would prevail if trying to proceed with fighting this type of thing."
Pleasanton is the latest city in the Tri-Valley and state to make the switch to district-based elections, here after a Southern California law firm recently threatened to pursue litigation over the city's at-large elections for City Council seats.
In an Aug. 2 letter to the city on behalf of Southwest Voter Registration Education Project, Malibu-based attorney Kevin Shenkman from the law firm Shenkman & Hughes said Pleasanton's at-large voting system -- where voters from an entire jurisdiction elect candidates to each open seat -- violates the California Voting Rights Act (CVRA) by diluting minority voters.
Councilmember Kathy Narum said that Shenkman is "trying to make a quick buck at our expense," and called it "offensive that we're going to have to pay $30,000 for a three-page letter that was probably a form letter."
Councilmember Jack Balch concurred, "This attorney has made his assertion, printed his letter with gold ink and I think has made his quick buck."
The CVRA prohibits at-large election systems in some cases and, according to city staff, has "made it easier for plaintiffs to prevail in lawsuits against public entities that elected their members to its governing body through at-large elections" by requiring a plaintiff "only prove the existence of racially polarized voting to establish liability under the CVRA."
Staff said "other factors are also relevant in determining liability" but that "proof of intent on the part of voters or elected officials to discriminate against a protected class is not required."
Shenkman alleged the city's at-large elections are "racially polarized" -- meaning the choice of candidates preferred by voters of a protected class are different than those preferred by the rest of the electorate. Shenkman also said the outcome of past local elections is "illustrative" of votes for Latino and Asian candidates being diluted, and that "in the past at least 15 years, the city's elections have been devoid of Latino candidates."
In the letter, Shenkman noted the failed council campaigns of three local Asian American candidates over the past eight years, including Olivia Sanwong, who currently serves on the Zone 7 Water Agency Board of Directors, and ran for City Council "with significant support from the city's Asian community in the 2013 and 2014 elections" but lost both times as well.
Sanwong phoned in during public comment Tuesday and stated she had no involvement with Shenkman or the letter -- the latter which she expressed doubts about being "a remedy for some of the harassment that I personally experienced" while campaigning, both in person and online.
The Pleasanton Farmers Market is one place where Sanwong said she does "not feel safe campaigning" after being harassed there on multiple occasions. In some instances "people got in my face at the farmers market, telling me to return home to Thailand despite the fact that I was born here in the United States."
"When I ran again in 2018 for Zone 7, I actually avoided the Pleasanton Farmers Market in terms of campaigning and focused on public events in Dublin and Livermore," Sanwong said.
Sanwong added, "I really do take a lot of offense to some of the comments that were shared with me back in 2013, 2014. Looking at this letter, however, I don't know that that's a remedy for my personal experience in terms of running for elected office, but I think it is important to share as part of this conversation."
The potential "unintended consequences'' of the CVRA were highlighted by several council members including Arkin, who had particular concerns about "a representative not truly representing the whole city and only representing a certain section of the city."
"I think it just opens the door for that, and that's unfortunate because I think we all do need to absolutely represent this entire town and this entire population here," Arkin said.
Narum said the CVRA was "probably a well-intended piece of legislation" and "this probably does make sense" in cities with concentrated racial demographics but not Pleasanton, where minority groups are more geographically dispersed.
"It's got a lot of unintended consequences, and frankly we don't have to look any further than the Dublin school district, of an example of something that went absolutely counter to what this act was trying to accomplish," Narum said.
Narum added, "I think there are very legitimate concerns that we go to districts, council members can be more concerned about their district and winning reelection than doing what's best for the city. At the end of the day, there's nothing to prevent that."
Arkin questioned whether the state law is working as intended "and I think that's a question that we really don't know how to answer," she said.
"We've certainly seen where it does not work in similar cities nearby, so that's problematic," Arkin said. "I think cities that do have very high populations of certain races or ethnicities in certain pockets, those are cities that probably would benefit by this system."
With "no evidence that that is the case in Pleasanton," Arkin said she doesn't think by-district elections will benefit the community, but called it "unfortunate that other steps haven't been taken to try to encourage more people to get involved, of other races or any other marginalized group in our town, to get involved in our city."
Balch called the CVRA a "poorly written law in a state that assumes one size fits all", and said a rift in the community could easily happen while drawing up district maps.
"I know our town and depending upon how the maps are drawn, we will possibly have one council member representing downtown, a different one representing the east side, a different one representing the mall," Balch said. "I do worry that districting will lead to thinking about one's own district rather than the best decision for all of Pleasanton, and we've seen how easily housing can divide us if we don't work together."
Acknowledging that "this council does not necessarily reflect the census population results that have come out recently," Balch added that he "cannot change the fact that I am a white male but I do work very hard to make sure every voice is heard."
"I do not want a judge or Malibu attorney drawing the maps for Pleasanton," Balch said. "The only way I see to preserve that is to move forward with the resolution. I think they will show we are a community that is well dispersed and mixed, and I appreciate that."
Residents will have the opportunity to weigh in on draft district maps and proposed sequence of elections at several public hearings, as well as an ordinance establishing Pleasanton's district-based elections. The hearings are expected to take place in January and February 2022, while a website with information about the election transition process will be launched in the near future, according to staff.
The overall cost for the city to transition from an at-large to district-based electoral system within the safe harbor time period includes approximately $50,000 for outside legal counsel and a demographer, as well as up to $30,000 in potential attorneys fees to Shenkman.
Staff said those expenses are not included in the fiscal year 2021-22 city budget and will be included in the mid-year budget.