Loading...
HomeMy WebLinkAbout15. Consider response to CVRA Notice of Violation and options for switching from at-large to by-division elections Page 1 of 48 Item 15. CENTRAL SAN BOARD OF DIRECTORS POSITION PAPER MEETING DATE: AUGUST 20, 2020 SUBJECT: CONSIDER RESPONSE TO NOTICE OF VIOLATION RECEIVED UNDER THE CALIFORNIA VOTING RIGHTS ACT (CVRA)AND OPTIONS FOR POSSIBLE TRANSITION FROM AN AT-LARGE ELECTION SYSTEM TOA BY-DIVISION ELECTION SYSTEM FOR MEMBERSHIP ON CENTRAL SAN'S BOARD OF DIRECTORS, INCLUDING POSSIBLE ADOPTION OF RESOLUTION OF INTENT NO. 2020-029 UNDER ELECTIONS CODE § 10010(E)(3) SUBMITTED BY: INITIATING DEPARTMENT: MARGUERITE LEONI, SPECIAL COUNSEL, SECRETARYOF THE DISTRICT NI ELSEN MERKSAMER Roger S. Bailey Kenton L. Alm General Manager District Counsel ISSUE The District has received a Notice of Violation (Attachment 1) under the California Voting Rights Act (CVRA) seeking a transition from an at-large election system to a by-division election system for membership on the District's Board of Directors. This Position Paper sets forth the District's options for responding to the Notice, including adopting a resolution declaring the Board's intention to transition from an at-large election system to a by-division elections system, outlining specific steps it will take to make the transition, and providing an estimated time frame for doing so pursuant to California Elections Code Section 10010. BACKGROUND The District conducts its elections at-large and has done so since its inception in 1946. The District received a certified letter on July 13, 2020 from attorney Kevin Shenkman of the Malibu-based law firm of August 20, 2020 Regular Board Meeting Agenda Packet- Page 94 of 200 Page 2 of 48 Shenkman & Hughes, asserting that the District's at-large electoral system violates the CVRA, codified at California Elections Code sections 14025-14032 (CVRA). Mr. Shenkman claims "racially polarized voting" may be occurring in the District, citing the recent elections for Board of Supervisors District 5, and the 2016 statewide race for United States Senator between Diane Feinstein and Kevin DeLeon. Mr. Shenkman threatens litigation if the District declines to adopt a by-division election system. Mr. Shenkman does not identify an individual voter in the District on whose behalf he sent the certified letter but mentions that the at-large electoral system dilutes the voting rights of both Latino and Asian-American voters. At-Large Election System The CVRA was signed into law in 2002. It applies only to jurisdictions that use an at-large election system. In an at-large election system, every voter in the District is entitled to vote for every candidate for the Board of Directors. In alternating even-numbered election years the District voters elect either two or three members to the Board of Directors by a plurality-win vote with the top vote-getters elected. B,y-Division Election System I n a by-division election system, the District would be divided into sub-parts called "director divisions" for the purposes of conducting elections. Voters in a division would vote once every four years and only for candidates who live in that division (See Health & Safety Code section 6591(b)). Board seats for each of three divisions would be on the ballot in one election year; seats for each of the remaining two divisions would be on the ballot the next election year. Califomia Voting Rights Act(CVRA) The CVRA was motivated, in part, by the lack of success by plaintiffs in California in lawsuits challenging at-large electoral systems brought under the Federal Voting Rights Act (FVRA). The passage of the CVRA made it much easier for plaintiffs to prevail in such lawsuits by eliminating certain elements of proof that are essential under the FVRA. I n particular, the CVRA eliminates the requirement for plaintiffs to demonstrate they are sufficiently geographically concentrated to benefit from by-district elections as a remedy or that the voting system is intentionally discriminatory or discriminatory in effect based on the totality of the circumstances. Burden of Proof for Violation To prove a violation of the CVRA, plaintiffs must demonstrate "racially polarized voting" in relevant elections. The CVRA uses the federal definition. Racially polarized voting occurs when there is a difference between the choice of candidates preferred by voters in a protected class who vote cohesively and the choice of candidates preferred by voters in the rest of the electorate who vote sufficiently as a bloc to usually defeat the choice of the protected class voters. Plaintiffs in other litigation have taken the position that the CVRA does not require proof of an actual electoral injury, i.e. vote dilution. Just last month, the Court of Appeal in a case out of Los Angeles County involving the City of Santa Monica ruled that proof of vote dilution is required in a voting rights case under the CVRA. It is anticipated that plaintiffs will seek California Supreme Court review of that ruling. Other Local Municipalities have Received Violation Notices Jurisdictions throughout the State that use at-large election systems have increasingly been facing legal challenges under the CVRA.Almost all have settled claims out of court or changed to a by-division electoral system prior to litigation being filed. Local examples include the Cities of Concord, San Ramon and Martinez, the Dublin San Ramon Services District, and several school districts. Costs Associated with Challenging Violation Notice If a jurisdiction is unsuccessful in litigation, the CVRA mandates that it pay the plaintiff's reasonable attorneys'fees and costs. Jurisdictions that have attempted unsuccessfully to defend their existing at- large election system in court or have settled after litigation is filed generally have incurred significant legal costs in addition to their own attorneys'fees and costs. These additional legal costs include the plaintiff's attorneys' fees, costs, and expert expenses. Payments in these cases have ranged from about$400,000 August 20, 2020 Regular Board Meeting Agenda Packet- Page 95 of 200 Page 3 of 48 to over$4.5 million. In the Santa Monica case mentioned above, plaintiffs demanded payment of$22 million in attorneys'fees, which includes a multiplier, after a trial that lasted about six weeks. Safe-Harbor Period/Fee Cap The Legislature by enacting amendments to Elections Code section 10010, has provided a process whereby a jurisdiction can change from at-large elections to by-division elections and thereby significantly moderate its exposure to payment of a plaintiff's attorneys'fees. The letter received from attorney Kevin Shenkman mentioned above is part of that process. Ajurisdiction can no longer be sued unless the potential plaintiff sends such a notice of violation to the jurisdiction. The jurisdiction then has a 45-day period in which to assess its options. During that period, it cannot be sued. The District is currently within that 45-day period, often called a"safe harbor," which expires on August 27, 2020. If the District follows the process set forth in Elections Code section 10010, and passes a resolution declaring its intent to establish by-division elections within 90 days, its exposure to pay a plaintiff's attorneys'fees and expenses is capped at$30,000 plus an inflation adjustment. The 90-day period provides a second safe-harbor period from litigation during which a jurisdiction can complete the specified process for establishing electoral divisions. Notably, Governor Newsom in Executive Orders N-34-20 (Attachment 6) and N-48-20 (Attachment 7)tolled the running of the safe-harbor periods during the time state or local health officials impose measures for social distancing to slow the spread of the COVI D-19 virus. Such measures are currently in effect in Contra Costa County. Staff is informed that, in another matter, Mr. Shenkman has stated his opinion that the Governor lacks authority to toll the running of the time frames set forth in Elections Code section 10010(a) and (e). There has been no court ruling on this issue. Special Election Ballot Measure Option Elections Code section 10650 permits the District to change to by-division elections by resolution or ordinance, without voter approval. There is an alternate method by which the District can change to by- division elections. Special legislation enacted in 1999 applicable only to Central San permits the District to place the question of changing to by-division elections on the ballot for consideration of the voters. If a majority of the voters vote in favor of by-division elections, the Board of Directors would then adopt electoral division boundaries by resolution. Health & Safety Code section 6590 et. seq. The measure can be placed on the ballot at a special election called for that purpose. However, even if the voters rejected by-division elections, the District would remain vulnerable to a CVRA lawsuit if racially polarized voting occurs in the District causing vote dilution. November 2022- Soonest for B-y-Division Election Finally, even if the District decides to change to by-division elections as expeditiously as possible, it is too late to use the new system in the 2020 elections for members of the Board of Directors. The first election in which a new by-division electoral system could be used is November 2022. Also, the new electoral divisions must be designed based in part of the demographic data contained in the United States Census so that the divisions have relatively equal populations. The most recent Census data available is from the 2010 Census. The 2020 Census is underway. If the District creates electoral divisions now, the law requires that it re-evaluate the demographics of the new divisions under the 2020 Census once that data becomes available and make adjustments to the division boundaries as necessary to modify the populations of the divisions to comply with law. Itis anticipated the results of the 2020 Census will be available in the late Spring or Summer of 2021. ALTERNATIVES/CONSIDERATIONS The Board of Directors has several options it may consider, including adopting a resolution of intention at this meeting to transition to by-division elections commencing as follows: 1. Now. Pass a resolution within the 45-day safe harbor as provided in Elections Code section 10010(e)(3) declaring the District's intention to transition from at-large to by-division elections August 20, 2020 Regular Board Meeting Agenda Packet- Page 96 of 200 Page 4 of 48 following the procedures required by Elections Code section 10010 and within the time frames set forth in Elections Code section 10010(a) and (e). The required public hearings would be conducted under the District's COVI D-19 meeting and public hearing protocols, which include videoconferencing. The new director division boundaries would need to be re-evaluated and possibly adjusted after receipt of the 2020 Census data. (Attachment 3) 2. Once COVID-19 Restrictions are Lifted: Pass a resolution within the 45-day safe harbor declaring the District's intention to transition from at-large to by-division elections following the procedures required by Elections Code section 10010(a) after social distancing measures in Contra Costa County are no longer in effect and tolling under the Governor's executive orders is lifted. As noted above, attorney Shenkman may challenge the validity of the Governor's executive orders by filing a CVRA action upon expiration of the safe-harbor periods set forth in Elections Code section 10010(e). This approach, however, would permit members of the public to participate in person in the public hearings that are the essential part of the process of establishing by-division elections. (Attachment 4) 3. Once COVID-19 Restrictions are Lifted and 2020 Census Data is Received. Pass a resolution within the 45-day safe harbor declaring the District's intention to transition from at-large to by-division elections following the procedures required by Elections Code section 10010(a) after social distancing measures in Contra Costa County are no longer in effect and tolling under the Governor's executive orders is lifted, and after receipt of the results of the 2020 Census. This option may result in the same challenge noted in Option 2, above, or CVRA litigation if the 90-day safe-harbor period expires prior to the District's completion of the process of establishing by-division elections after receipt of the 2020 Census data. This option, however, would enable the Board of Directors and the public to consider the most recent Census data in the development of director division boundaries. (Attachment 5) 4. Within 45-Day Safe Harbor as Tolled by Govemor: Consider a resolution as provided in Options 1, 2, or 3 above, but within the 45-day safe harbor as tolled by Governor Newsom's executive orders in order to solicit additional public input on a) adoption of a resolution declaring the District's intention to transition from at-large to by-division elections and b)the time frame for establishing division boundaries. I n connection with implementing any of the above options, the Board would have the opportunity to determine whether to place the question of changing to by-division elections on the ballot, taking into consideration information garnered in the public hearing process required by Elections Code section 10010(a). 5. Decline to Change Electoral System: The Board could determine not to consider a resolution declaring the District's intention to transition from at-large to by-division elections and direct staff to prepare to defend against a CVRA lawsuit if one is filed. Even if successful in such litigation, the District would not be protected from a CVRA demand/lawsuit in the future by a different plaintiff. FINANCIAL IMPACTS 1. The process for establishing by-division elections under Elections Code section 10010(a)will require significant staff time because of the five (5) public hearings that will be required in addition to the cost for a demographic consultant and special legal counsel. Based on information received from Dublin San Ramon Services District, which processed the change from at-large elections to by- division elections last year, the cost will be in the range of$250,000 to meet minimum requirements. The process will be more expensive if the District wishes to schedule more than the minimum number of public hearings or engage in significant other public outreach efforts in connection with the process. August 20, 2020 Regular Board Meeting Agenda Packet- Page 97 of 200 Page 5 of 48 2. If adjustment of the division boundaries is required after receipt of the 2020 Census results, that process may be less costly than the process of establishing the division boundaries in the first instance assuming significant changes are not required. That cannot be known at this time. I n the future, the District will be required to adjust the electoral division boundaries after each federal decennial Census and perhaps at other times in the event of the annexation or detachment of territory from the District. 3. If the District complies with the process and time frames set forth in Elections Code section 10010(a) and (e), the District will only be required to reimburse plaintiff for his attorneys'fees and costs up to $30,000 plus an inflation factor. Once a by-division electoral system is in place for the District, it would no longer be exposed to litigation under the CVRA. 4. In addition, staff expects a moderate decrease in election costs for by-division elections during each of the election cycles in 2022 and 2024, and ongoing thereafter. The foregoing fiscal impacts are necessary and unavoidable if the District determines to implement by- division elections. Placing the question of changing to by-division elections on the ballot will cost approximately$5.00-$7.00 per registered voter, for a stand-alone special election, and slightly less if the election is consolidated with the statewide Primary Election in 2022. As noted above, the Board of Directors has authority to change the District's electoral system to by-division elections without voter approval. If the District wishes to take advantage of the tolling provisions contained in Executive Orders N-34-20 (Attachment 4) and N-48-20 (Attachment 5), for example, to be able to conduct in-person public hearings, attorney Shenkman may contend that the safe-harbor time frames of Elections Code section 10010(e) have expired and sue the District under the CVRA. The District would incur attorneys'fees and expenses in the range of$150,000 to attempt to have the complaint dismissed, assuming it were successful in that effort. The District's attorneys'fees for full defense of a CVRA lawsuit would likely be in excess of$1 million, and the District would be required to pay the plaintiff's attorneys'fees and expenses, which, as noted above, would be significantly more expensive, likely in the range of$5 million, assuming litigation is not protracted as it was in the CVRA action against the City of Santa Monica. COMMUNITY OUTREACH The District has also issued a press release describing the issue and alternatives and inviting public input and participation in the Board's consideration of this matter. COMMITTEE RECOMMENDATION This item was not reviewed by a Board Committee. RECOMMENDED BOARD ACTION From an exclusively fiscal perspective, staff recommends Option 1, above. Alternatively, staff recommends Options 1, 2, or 3, deferring the decision whether to place the question of changing to by-division elections on the ballot for voter approval until after completion of the public hearings required by Elections Code section 10010(a). Stratedc Plan Tie-In GOAL ONE: Customer and Community August 20, 2020 Regular Board Meeting Agenda Packet- Page 98 of 200 Page 6 of 48 Strategy 1—Deliver high-quality customer service, Strategy 2—Maintain a positive reputation GOAL TWO:Environmental Stewardship Strategy 1—Achieve 100%compliance in all regulations ATTACHMENTS: 1. Letter from Attorney Kevin Shenkman received on July 13, 2020 2. Presentation by Special Counsel Marguerite Leoni 3. Draft Resolution Option 1 4. Draft Resolution Option 2 5. Draft Resolution Option 3 6. Governor Newsom's Executive Order N-34-20 7. Governor Newsom's Executive Order N-48-20 August 20, 2020 Regular Board Meeting Agenda Packet- Page 99 of 200 Page 7 of 48 ATTACHMENT 1 28905 Wight Road Malibu,California 90265 (310)457-0970 ATT,Owgiv S, kshenkman!a�shenkmanhuehes.com , VIA CERTIFIED MAIL July 6, 2020 Michael McGill—Board President Katie Young— Secretary of the District Central Contra Costa Sanitary District 5019 Imhoff Pl. Martinez, CA 94533 Re: Violation of California Voting Rights Act I write on behalf of our client, Southwest Voter Registration Education Project and its members residing in the Central Contra Costa Sanitary District ("CCCSD"). CCCSD relies upon an at-large election system for electing candidates to its Board of Directors. Moreover, voting within CCCSD is racially polarized, resulting in minority vote dilution, and therefore CCCSD's at-large elections violate the California Voting Rights Act of 2001 ("CVRA"). The CVRA disfavors the use of so-called "at-large"voting—an election method that permits voters of an entire jurisdiction to elect candidates to each open seat. See generally Sanchez v. City of Modesto (2006) 145 Cal.App.4t" 660, 667 ("Sanchez"). For example, if the U.S. Congress were elected through a nationwide at-large election, rather than through typical single-member districts, each voter could cast up to 435 votes and vote for any candidate in the country, not just the candidates in the voter's district, and the 435 candidates receiving the most nationwide votes would be elected. At-large elections thus allow a bare majority of voters to control every seat, not just the seats in a particular district or a proportional majority of seats. Voting rights advocates have targeted "at-large" election schemes for decades, because they often result in "vote dilution," or the impairment of minority groups' ability to elect their preferred candidates or influence the outcome of elections,which occurs when the electorate votes in a racially polarized manner. See Thornburg v. Gingles, 478 U.S. 30, 46 (1986) ("Gingles"). The U.S. Supreme Court "has long recognized that multi-member districts and at-large voting schemes may operate to minimize or cancel out the voting strength" of minorities. Id. at 47; see also id. at 48, fn. 14 (at-large elections may also cause elected officials to "ignore [minority] interests without fear of political consequences"), citing Rogers v. Lodge, 458 U.S. August 20, 2020 Regular Board Meeting Agenda Packet- Page 100 of 200 Page 8 of 48 July 6, 2020 Page 2 of 4 613, 623 (1982); White v. Register, 412 U.S. 755, 769 (1973). "[T]he majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters." Gingles, at 47. )Alien racially polarized voting occurs, dividing the political unit into single-member districts, or some other appropriate remedy, may facilitate a minority group's ability to elect its preferred representatives. Rogers, at 616. Section 2 of the federal Voting Rights Act ("FVRA"), 42 U.S.C. § 1973, which Congress enacted in 1965 and amended in 1982, targets, among other things, at-large election schemes. Gingles at 37; see also Boyd & Markman, The 1982 Amendments to the Voting Rights Acta A Legislative History (1983) 40 Wash. &Lee L. Rev. 1347, 1402. Although enforcement of the FVRA was successful in many states, California was an exception. By enacting the CVRA, "[t]he Legislature intended to expand protections against vote dilution over those provided by the federal Voting Rights Act of 1965." dauregui v. City of Palmdale (2014) 226 Cal. App, 4" 781, 808. Thus, while the CVRA is similar to the FVRA in several respects, it is also different in several key respects, as the Legislature sought to remedy what it considered "restrictive interpretations given to the federal act." Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 2. The California Legislaturedispensed with the requirement in Gingles that a minority group demonstrate that it is sufficiently large and geographically compact to constitute a"majority-minority disfriet."Sanchez, at 669. Rather, the CVRA requires only that a plaintiff show the existence of racially polarized voting to establish that an at-large method of election violates the CVRA, not the desirability of any particular remedy. See Cal. Elec. Code § 14028 ("A violation of Section 14027 is established if it is shown that racially polarized voting occurs ...") (emphasis added); also see Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001--2002 Reg. Sess.) as amended Apr. 9, 2002,p. 3 ("Thus,this bill puts the voting rights horse (the discrimination issue) back wherq.it sensibly belongs in' front of the cart (what type of remedy is appropriate once racially polarized voting has been shown).") To establish a violation of the CVRA, a plaintiff must generally show that "racially polarized voting occurs in elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision." Elec. Code § 14028(a). The CVRA specifies the elections that are most probative: "elections in which at least one candidate is a member of a protected class or elections involving ballot measures, or other electoral choices that affect the rights and privileges of members of a protected class." Elec. Code § 14028(a). The CVRA also makes clear that "[e]lections conducted prior to the filing of an action ... are more probative to establish the existence of racially polarized voting than elections conducted after the filing of the action." Id. August 20, 2020 Regular Board Meeting Agenda Packet- Page 101 of 200 Page 9 of 48 July.6, 2020: Page 3 of 4 Factors other than "racially polarized voting" that are required to make out a claim under the FVRA—under the "totality of the circumstances"test—"are probative, but not necessary factors to establish a violation of the CVRA. Elec. Code § 14028(e). These "other factors" include "the history of discrimination, the use of electoral devices or other voting practices or procedures that may enhance the dilutive effects of at-large elections, denial of access to those processes determining which groups of candidates will receive financial or other support in a given election, the extent to which members of a protected class bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process, and the use of overt or subtle racial appeals in political campaigns." Id. CCCSD's at-large system dilutes the ability of Latinos and Asians (each, a"protected class") — to elect candidates of their choice or otherwise influence the outcome of CCCSD's elections. As CCCSD has noted, CCCSD serves nearly 500,000 residents of Contra Costa County. Based on the 2010 Census, Latinos comprise approximately 15% of CCCSD's population, and likely a greater proportion today, and Asians similarly comprise approximately 15% of CCCSD's population. However, Latinos and Asians have generally not been represented on CCCSD's Board of Directors, despite their significant proportion of the population and electorate. The contrast between the significant Latino and Asian proportions of the electorate and the historical underrepresentation of Latinos and Asians to be elected to the CCCSD Board is outwardly disturbing and fundamentally hostile towards participation from members of these protected classes. In light of CCCSD's underrepresentation of Latinos and Asians, and the daunting task of campaigning to nearly 500,000 residents, it is no wonder why Latino and Asian residents do not emerge as candidates. In at least the last 20 years,there appear to have been no Latinos or Asians to emerge as candidates for the CCCSD Board. Opponents of fair, district-based elections may attempt to attribute the glaring lack of candidates within protected classes to a lack of interest from their respective communities. On the contrary, the virtual absence of protected class candidates to seek election to the CCCSD Board reveals vote dilution. See Westwego Citizens for Better Government v. City of'Westwego, 872 F. 2d 1201, 1208-1209, n. 9 (5th Cir. 1989). Particularly where there are no "endogenous" elections (for the governing board at issue) involving candidates who are members of the protected class(es), the CVRA August 20, 2020 Regular Board Meeting Agenda Packet- Page 102 of 200 Page 10 of 48 July 6, 2020 Page 4 of 4 directs an analysis of"elections involving ballot measures, or other electoral choices that affect the rights and privileges of members of a protected class." See Elec. Code § 14028. Typically, Proposition 187 is analyzed for this purpose in California voting rights cases. That unconstitutionally racist proposition, though strongly opposed by the Latino and Asian communities in CCCSD, were supported by the majority non-Hispanic white electorate in CCCSD. Other "exogenous" elections, such as the recent elections for Contra Costa Supervisor between Federal Glover and Anamarie Avila Fariast and U.S. Senate between Dianne Feinstein and Kevin de Leon, further demonstrate the point. In each of those contests, the Latino electorate in CCCSD supported the Latino candidate, but in each instance that Latino candidate lost. As you may be aware, in 2012,we sued the City of Palmdale for violating the CVRA. After an eight-day trial, we prevailed. After spending millions of dollars, a district- based remedy was ultimately imposed upon the Palmdale City Council, with districts that combine all incumbents into one of the four districts. Given the historical lack of representation of those from this protected class on the Solvang City Council in the context of racially polarized elections, we urge the City of Solvang to voluntarily change its at-large system of electing city council members. OtherMsc., on behalf of residents within the jurisdiction, we will be forced to seek judicial relief. Please advise us no later than June 20, 2020 as to.whether you would. like to discuss a voluntary change to your current at-large system.. We look forward to your response. Very truly yours, Kevin I. Shenkman ' Though this election involved only a portion of the CCCSD electorate, it is still revealing of the voting behavior of a significant portion of CCCSD. Moreover, it should not escape notice that each supervisorial district in Contra Costa County has less than half the population that candidates for CCCSD's Board are currently required to campaign to. The cost of campaigning to nearly 500,000 residents is cost prohibitive for all but a few candidates. August 20, 2020 Regular Board Meeting Agenda Packet- Page 103 of 200 Page 11 of 48 C:3 to M M C3 C3 C3 ------ [m CI. C Ir ru Z. -z- Z4 twg to L Z- 4(ft, CIAO i ro 0 C):I- rn Duo 0 August 20, 2020 Regular Board Meeting Agenda Packet- Page 104 of 200 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Item 15. (Handout) Updated presentation Central Contra Costa Sanitary District August 20, 2020 Meeting of the Board of Directors California Voting Rights Act California Voting Rights Act POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT I LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP California Voting Rights Act ("CVRA") Notice of Violation • Received by CCCSD on July 13, 2020. • Sent by law firm of Shenkman&Hughes citing violation of the voting rights of Latino and Asian voters but no individuals named as potential plaintiffs. • Demands a change in electoral system from at-large to by-division elections. • Upon receipt of a CVRA demand,Central San is statutorily protected from litigation for a period of 45 days,which expires on August 27, 2020. • Triggers decision-making process: change to election by divisions or risk a potentially very expensive and resource consuming lawsuit California Voting Rights Act 2 1 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACV GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Electoral Systems • Central San has an"at-large" electoral system. • In an at-large election system, every voter in the District is entitled to vote for every candidate for the Board of Directors. In alternating even-numbered election years the District voters elect either two or three members to the Board of Directors by a plurality-win vote with the top vote-getters elected. • In a by-division election system,the District would be divided into sub-parts called "director divisions",for the purposes of conducting elections. Voters in a director division would vote once every four years and only for candidates who live in that division.The single top vote-getter in each director division is elected. California Voting Rights Act 3 POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Historical Background Califo­ia Voting Rights Act 4 2 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACV GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Historical Background • In the late 199os and early 2000s, voting rights plaintiffs nationwide, but especially in California, were experiencing trouble bringing successful actions under Section 2 of the federal Voting Rights Act. • Many of the most blatantly problematic voting structures had been remedied, and voting rights groups perceived the federal courts as inhospitable to their claims. The California Voting Rights Act 5 POLITICAL& LA OCACY NIELSEN MERKSAMER GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Section 2 of the FVRA • Section 2 applies nation-wide. • It forbids any"qualification or prerequisite to voting or standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color" or membership in a language minority group. • An at-large voting system is a "practice or procedure." The California Voting Rights Act 6 3 08/20/20 POLITICAL&NIELSEN MERKSAMER ADVOCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Thornburg v. Gingles, 478 U.S. 30 (1986) Interpreted FVRA §2 • A violation is proven based on the totality of the circumstances. • However,a plaintiff must first establish the three Gingles threshold preconditions: — "First,the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. . . . — Second,the minority group must be able to show that it is politically cohesive.. . . — Third,the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it. . .to defeat the minority's preferred candidate." Id.at 50-51(internal citations and footnote omitted). • Many cases failed because plaintiffs could not establish the first precondition. The Califomia Voting Rights Act POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER Pe RRINELLO GROSS&LEONI LLP Solution? The CVRA • Enacted in 2002 (S.B. 976) • Took effect January 1, 2003 • Elections Code§§ 14025 to 14032 • Eliminates part of the 1St Thornburg v. Gingles Precondition • Totality of Circumstances remain, more or less. • As MALDEF(Mexican-American Legal Defense and Education Fund)put it,the"[b]ill makes it easier for California minorities to challenge`at-large' elections." The California Voting Rights Act 4 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACV GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP The CVRA Safe Harbor "By-division" Elections A jurisdiction that elects by"single-member district" has no liability under the CVRA. it The California Voting Rights Act 9 POLITICAL& LA OCACY NIELSEN MERKSAMER GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Legal Background Calif—ha Voti,g Rights Act 10 5 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP The California Voting Rights Act ("CVRA") • What is prohibited: "An at method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election,as a result of the dilution or the abridgment of the rights of voters who are members of a protected class, ... .' (Elec. Code§14027.) • Racially Polarized Voting: A violation of Section 14027 is established if it is shown that racially olarized voting occurs in elections for members of the governiDhodv of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision.(Elec.Code§14028.) • Electoral Harm,i.e.Vote Dilution: California Court of Appeal recently ruled that CVRA plaintiffs must also prove vote dilution. Pico Neighborhood Assn v.City of Santa Monica,2nd Dist.Ct of Appeal No.B295935(request for California Supreme Court review has been filed) California Voting Rights Act POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Essential Proof— Racially Polarized Voting (e)"Racially polarized voting"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.(Elec.Code§ 14026(e).) California Voting Rights Act 6 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Essential Proof— Vote Dilution (i.e. an electoral injury) 1. No definition in CVRA. 2. Pico Neighborhood Assn. v. City of Santa Monica: "Dilution requires a showing,...evidence the change is likely to make a difference in what counts in a democracy: electoral results." (Slip.Op.at 37) See Reno v.Bossier Parish School Bd. (1997)520 U.S.471,48o (plaintiffs must postulate an alternative voting practice to serve as the benchmark undiluted voting practice,because the concept of vote dilution necessitates the existence of an undiluted practice against which the fact of dilution may be measured.)(Cited at Slip. Op.at 30.) California Voting Rights Act POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT I LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Litigation Option Is Expensive Costs Include Your own Attorneys' Fees plus Plaintiffs • Reasonable attorneys'fee awards to prevailing plaintiffs are mandatory. • Prevailing defendants are not entitled to fees or costs. • The City of Modesto is reported to have paid$1.7 million to its attorneys and$3.0 million to plaintiffs'attorneys. The case never even went to trial,though legal issues did get litigated through the appeals courts up to the U.S.Supreme Court. • City of Tulare reportedly paid$250,000.00. • Tulare Local Healthcare District paid$500,000.00 • City of Escondido:reportedly$585,000.00 • City of Palmdale:reportedly$4.5 million through briefing on appeal,no argument. • City of Anaheim:$1.2 million in settlement long before trial. • City of Whittier:$1 million,although City defeated motion for preliminary injunction,and case eventually dismissed as moot • San Mateo County:$650,000;City of Santa Barbara: $600,000;Madera Unified SD: $170,000;Hanford JUHSD: $118,000;Merced City: $42,000;Fullerton$26o,000; Highland$1.3 million;City of Santa Clara: $3.3 million;City of Santa Monica: $22 million demand, and soon. California Voting Rights Act 7 08/20/20 POLITICAL& ADVOCACY NIELSEN MERKSAMER GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Statutory Process for Changing to By-Division Elections Elec. Code § iooio Health & Safety Code § 6590 et. Seq. California Voting Rights Act POLITICAL& LA OCACY NIELSEN MERKSAMER GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Legislative Reform: AB 350 • Certain jurisdictions(City of Whittier,Cerritos Community College District)were sued,even after indicating their intention to change to district-based elections. • In response,AB 35o adopted a requirement that would-be plaintiffs send a notice letter to a jurisdiction before filing suit and provided jurisdictions with a grace period(up to 135 days)within which to adopt districts/districts. • If the jurisdiction complies with the requirements of AB35o after a demand letter is sent,the plaintiffs'attorneys can demand reimbursement of their costs without filing suit,but costs and fees are capped at$30,000.00 plus an inflation adjustment. • If the jurisdiction does not comply within the grace period,the plaintiffs can file suit and seek reimbursement of costs and fees without the$30,000.00 cap. • Numerous AB 35o demand letters are sent nearly every month,most,but not all,by the same law firm—the firm that sent the July 13,2020 letter to CCCSD. California Voting Rights Act 8 08/20/20 POLITICAL&NIELSEN MERKSAMER ADVOCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Pro Forma Timeline Under Elec. Code § looio Executive Orders N-34-20 &N-48-2o Tolling Receipt of CVRA Notice/Demand Letter 1st"45-day Safe Harbor"begins* Resolve to Change to Single-member Divisions;Adopt Tentative Within 45 days of receiving demand Calendar;Provide for Retention of Demographer 2nd"go-day Safe Harbor"begins* Two Public Hearings Before any Maps Are Drawn No more than 3o days apart Draft Maps and Election Rotation Published 7 days prior to 151 public hearing First of Two Additional Public Hearings on Draft Maps No more than 45 days apart Additional Maps Published with Election Rotation 7 days prior to 2nd public hearing Second Public Hearing on Draft Maps;Select Preferred Map Final Public Hearing to Adopt Districting Plan and Rotation of At least'7 days after any changes to Election map proposed for adoption Statutory End to 2nd Safe Harbor(can be extended) go days from Reso.to Change Spring—Summer 2021 Receipt of 2020 Census Results Consideration of Need to Redraw Electoral Division Boundaries Implement Adopted By-Division Election Plan Next Regular Election California Voting Rights Act POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Special Legislation for Central San. (a) In the case of an elected district board,the directors may be elected by divisions if a majority of the voters voting upon the question are in favor of the question at a general district or special election.... (b) As used in this section,"election by division"means the election of each member of the district board by voters of only the respective election division. (c) The district board may adopt a resolution placing the question on the ballot.Alternatively,upon receipt of a petition signed by at least 5 percent of the registered voters of the district,the district board shall adopt a resolution placing the question on the ballot. (e) If the majority of voters voting upon the question approves the election of directors by divisions, the district board shall promptly adopt a resolution dividing the district into as many divisions as there are directors.The resolution shall assign a number to each division.Using the last decennial census as a basis,the divisions shall be as nearly equal in population as possible.In establishing the boundaries of the divisions the district board may give consideration to the following factors:(1)topography,(2)geography,(3)cohesiveness,contiguity,integrity,and compactness of territory,and(4)community of interests of the divisions.... (Health&Safety Code§6591.) California Voting Rights Act 9 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACV GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Options & Comments California Voting Rights Act 19 POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT I LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Option 1: Resolve to Change & Act Within Safe Harbor • Resolution of Intent adopted • Process to create director division map completed within safe harbor under physical distancing protocols • Use 2010 Census data • Statutory payment to Shenkman & Hughes • Map will not be used in 2020 • Map potentially adjusted in 2021 after receipt of 2020 Census results • Two seats on ballot in 2022; three in 2024 • No terms cut short California Voting Rights Act 20 10 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACY GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Option 1: Resolve to Change & Act Within Safe Harbor -- Comments • Completes process within timing of statutory scheme • May limit opportunities for public participation • Based on antiquated Census data • Additional expense for redistricting California Voting Rights Act 21 POLITICAL& LANIELSEN MERKSAMER ADVOCACY GOVERNMENT I LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Option 2: Executive Orders Tolling Safe Harbor • Same as Option 1 but conduct process to create director division map after expiration of physical distancing protocols • Executive Order No. 34-20 &No. 48-20: "The timeframes set forth in Elections Code section iooio, subdivisions (a) and(e), are suspended as to any political subdivision of the State. "The purpose of this suspension is to protect public health and safety during the period when the State Public Health Officer and other public health officials have determined that it is necessary to engage in physical distancing to minimize the spread of C-19. "This suspension shall be in effect until further notice." California Voting Rights Act 22 11 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACV GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Option 2: Executive Orders Tolling -- Comments • Completes process within Executive Order tolling • More opportunities for public participation California Voting Rights Act 23 POLITICAL& LA OCACY NIELSEN MERKSAMER GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Option 3: Resolve to Change & Create Director Division Map After Receipt of 2020 Census Data • Resolution of Intent adopted • Process to create director division map after receipt of 2020 Census data • Statutory payment to Shenkman & Hughes • Two seats on ballot in 2022; three in 2024 • No terms cut short California Voting Rights Act 24 12 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACV GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Option 3: Resolve to Change & Create Director Division Map After Receipt Of 2020 Census Data -- Comments • Uses most current demographic data • Opportunity for directors elected in 2020 to participate • Saves cost of 2021 redistricting • go-day safe harbor & executive tolling may expire exposing District to CVRA litigation • Two seats on ballot in 2022; three in 2024 • No terms cut short California Voting Rights Act 25 POLITICAL& LA OCACY NIELSEN MERKSAMER GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Option 4: Resolve to Change After Executive Order Tolling Expires • Increases opportunity for public participation in the decision to pass a Resolution of Intent • Increases opportunity for public participation in developing timeline for process of creating Director Divisions • Exposure to CVRA lawsuit at any time California Voting Rights Act 26 13 08/20/20 POLITICAL& LAW NIELSEN MERKSAMER OCACV GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Option 5: No Resolution of Intent at This Time • Board of Directors does not lose authority to determine to change to by-division elections • Statutory Safe Harbor timing not triggered • Exposure to CVRA lawsuit at any time California Voting Rights Act 27 POLITICAL& LA OCACY NIELSEN MERKSAMER GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Election Option • In connection with any of the above options, determine whether to place the question of changing to by-division elections on the ballot for voter approval California Voting Rights Act 28 14 08/20/20 POLITICAL& LAW OCACV GOVERNMENT LITIGATION NIELSEN MERKSAMER PARRINELLO GROSS&LEONI LLP Central Contra Costa Sanitary District August 20, 2020 Meeting of the Board of Directors California Voting Rights Act California Voting Rights Act 15 Page 22 of 48 OPTION 1 DRAFT ROI (ATTACHMENT 3) (Develop Director Divisions Without Consideration of Executive Order Tolling of Safe Harbor Periods) RESOLUTION NO. RESOLUTION OF THE BOARD OF DIRECTORS OF CENTRAL CONTRA COSTA SANITARY DISTRICT DECLARING ITS INTENT TO CHANGE FROM AN AT-LARGE ELECTION SYSTEM TO A BY-DIVISION ELECTION SYSTEM FOR ELECTING DIRECTORS, OUTLINING SPECIFIC STEPS TO BE UNDERTAKEN TO FACILITATE THE CHANGE, AND ESTIMATING A TIMEFRAME FOR ACTION WHEREAS, Central Contra Costa Sanitary District ("District") is a Sanitary District duly organized under the Sanitary District Act of 1923 (Health & Safety Code §§ 6400 - 6830) and governed by special legislation added by Stats. 1999, Ch. 696, Sec. 1 (Health & Safety Code §§ 6590 - 6595). WHEREAS, the District's Board of Directors is comprised of five Directors currently elected in "at-large" elections, in which each Director is elected by the registered voters of the entire District; in alternating even-numbered election years the District voters elect either two or three members to the Board of Directors by a plurality-win vote with the top vote-getters elected; and WHEREAS, on July 13, 2020, the District received a letter from attorney Kevin Shenkman of the law firm of Shenkman & Hughes, asserting that the District's at- large election system violates the California Voting Rights Act of 2001 ("CVRA") and threatening litigation if the District does not voluntarily change to a by- division election system for electing Directors; and WHEREAS, in a by-division election system, the District would be divided into sub-parts called "director divisions" for the purposes of conducting elections; voters in a division would vote once every four years and only for candidates who live in that division with the single top vote-getter in each division elected (see Health & Safety Code § 6591(b)); board seats for each of three divisions would be on the ballot in one election year; seats for each of the remaining two divisions would be on the ballot the next election year ("Health & Safety Code § 6591(b)); and WHEREAS, litigation to defend against an alleged violation of the CVRA is extraordinarily expensive and if the defendant loses, it is required to pay the plaintiff's reasonable attorneys' fees and expenses, which in most cases to date have been significantly over a million dollars; and August 20, 2020 Regular Board Meeting Agenda Packet- Page 115 of 200 Page 23 of 48 OPTION 1 DRAFT ROI (ATTACHMENT 3) (Develop Director Divisions Without Consideration of Executive Order Tolling of Safe Harbor Periods) WHEREAS, the California Legislature, in amendments to Elections Code section 10010 and enacting section 10650, has provided a process whereby a jurisdiction can change to a by-district election system and be protected from litigation under the CVRA (Elec. Code § 10010(e)); and WHEREAS, changing to a by-district electoral system pursuant to Elections Code section 10010 would avoid the extraordinary cost to defend against a CVRA lawsuit; and WHEREAS, the multi-hearing and notice process set forth in Elections Code section 10010 and other legal requirements do not permit the District to implement by-division elections at the November 3, 2020 elections for members of the District Board of Directors: and WHEREAS, the first general District election for members of the District Board of Directors at which a by-division electoral system could be used is November 8, 2022; and WHEREAS, the federal decennial Census is currently underway, and the results will be available to local jurisdictions in 2021; and WHEREAS, Health & Safety Code section 6592 may require the Board of Directors to adjust the boundaries of the election divisions before November 1, 2021; and WHEREAS, the District denies that its at-large system for electing Directors violates the CVRA or any other provision of law and asserts the District's election system is legal in all respects and further denies any wrongdoing in connection with the manner in which it has conducted its elections; and WHEREAS, despite the foregoing, the Board of Directors has determined that the public interest would be best served by changing to a by-division election system to avoid the risks and costs of defending against a CVRA lawsuit; and WHEREAS, California Elections Code section 10010(a) requires that a district that is changing from an at-large to by-division method election do all the following before the Board of Directors votes to approve or defeat establishing district- based elections: 1. Prior to drawing one or more draft maps of the proposed boundaries of the divisions, the District shall hold at least two public hearings within 30 August 20, 2020 Regular Board Meeting Agenda Packet- Page 116 of 200 Page 24 of 48 OPTION 1 DRAFT ROI (ATTACHMENT 3) (Develop Director Divisions Without Consideration of Executive Order Tolling of Safe Harbor Periods) days of each other, at which the public is invited to provide input regarding the composition of the divisions; and 2. After all draft maps are drawn, the District shall publish and make available for release at least one draft map and, if members of the Board of Directors will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections shall also be published. The District shall hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections. The first version of a draft map shall be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, it shall be published and made available to the public for at least seven days before being adopted; and WHEREAS, the adoption of a by-division election system will not affect the term of any sitting Director, each of whom will serve out his current term. WHEREAS, Health & Safety Code section 6591, applicable only to the District, provides that the directors may be elected by-divisions if a majority of the voters voting upon the question are in favor of the question at a general district or special election, and that the Board of Directors may adopt a resolution placing the question on the ballot, but Elections Code section 10650 would permit the Board of Directors to make the change to by-division elections without voter approval. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF CENTRAL CONTRA COSTA SANITARY DISTRICT: 1. The foregoing recitals are true and correct and form the basis of this resolution. 2. The Board hereby states its intention to change to by-division elections in accordance with all applicable laws in time for the 2022 elections for members of the Board of Directors. 3. The Board of Directors directs the General Manager to retain a demographer and other appropriate consultants, to provide a detailed analysis of the District's demographics and any other information or data necessary to prepare a draft map that divides the District into director divisions in accordance with law. August 20, 2020 Regular Board Meeting Agenda Packet- Page 117 of 200 Page 25 of 48 OPTION 1 DRAFT ROI (ATTACHMENT 3) (Develop Director Divisions Without Consideration of Executive Order Tolling of Safe Harbor Periods) 4. The Board of Directors approves the tentative timeline set forth in Exhibit A, attached to and made a part of this resolution, for conducting a public process pursuant to Elections Code section 10010, and directs staff to further develop the timeline including to accommodate the schedules of all members of the Board of Directors and staff, provided, however,that the final timeline shall not prevent the District from adopting a map for by-division elections within 90 days of the date of this Resolution. 5. The Board of Directors delegates to the General Manager responsibility to develop and execute a program to inform the residents of the District of this resolution and the process set forth in Exhibit A, and to facilitate and encourage public participation,including the opportunity to vote on the change to by-division elections in a ballot measure (Health & Safety Code section 6590, et. seq.). 6. The District General Manager shall inform the Board of Directors as soon as the 2021 Census data is available, shall cause the District's demographer to analyze the demographics of the adopted map under that data, and shall report to the Board of Directors the results of the demographer's analysis. 7. If the District's demographer concludes that the director divisions do not satisfy the legal requirement for reasonable population equality among the divisions or is otherwise inconsistent with law, the General Manager shall inform the Board of Directors and develop and present to the Board of Directors a process and timeline for making adjustments to the director division boundaries on or before November 1, 2021. 8.The Board of Directors reserves the right to repeal this resolution or re-establish at-large elections in accordance with law should the CVRA be declared illegal, or as may be in the best interests of the District. [THIS SPACE INTENTIONALLY BLANK] August 20, 2020 Regular Board Meeting Agenda Packet- Page 118 of 200 Page 26 of 48 OPTION 1 DRAFT ROI (ATTACHMENT 3) (Develop Director Divisions Without Consideration of Executive Order Tolling of Safe Harbor Periods) PASSED AND ADOPTED this _ day of , 2020, at a regular meeting of the Board of Directors of the Central Contra Costa Sanitary District by the following vote: AYES: Members: NOES: Members: ABSENT: Members: Michael R. McGill, P.E. President of the Board of Directors Central Contra Costa Sanitary District, County of Contra Costa, State of California COUNTERSIGNED: Katie Young Secretary of the Central Contra Costa Sanitary District, County of Contra Costa, State of California Approved as to Form: Kenton L. Alm, Esq. District Counsel August 20, 2020 Regular Board Meeting Agenda Packet- Page 119 of 200 Page 27 of 48 OPTION 1 DRAFT ROI (ATTACHMENT 3) (Develop Director Divisions Without Consideration of Executive Order Tolling of Safe Harbor Periods) EXHIBIT A TENTATIVE TIMELINE:ADOPTION &IMPLEMENTATION OF BY-DIVISION ELECTIONS DATE EVENT COMMENT August 20, 2020 Adoption of Resolution of CVRA lawsuit cannot be Intent commenced for 90 days. August 20 - September 3, Public Outreach NO MAPS YET DRAWN 2020 September 3, 2020 1st Public Hearing Re: Composition of Divisions; NO MAPS YET DRAWN September 17, 2020 2nd Public Hearing; Re: Composition of Set Deadline for Receipt of Divisions; Maps from Members of NO MAPS YET DRAWN Public September 23, 2020 Suggested deadline for submission of draft maps by members of the public October 1, 2020 Publish Draft Maps and Potential Sequence of Elections October 15, 2020 3rd Public Hearing Re: Draft Maps; A new map &sequence of elections must be published 7 days before 4th public hearing November 3, 2020 General District Election November 5, 2020 4th Public Hearing; Re: Draft Maps; Introduce ordinance or If selected map is resolution establishing amended, ordinance by-division elections, cannot be introduced until adopting division 7 days after amended map boundaries, and setting is published. This will election sequence require an adjustment to the timeline November 18, 2020 5th Public Hearing; (Special Meeting) 2nd reading of ordinance: approval or August 20, 2020 Regular Board Meeting Agenda Packet- Page 120 of 200 Page 28 of 48 OPTION 1 DRAFT ROI (ATTACHMENT 3) (Develop Director Divisions Without Consideration of Executive Order Tolling of Safe Harbor Periods) defeat of ordinance or resolution November 18, 2020 Day 90 2nd Safe Harbor period ends December 18, 2020 Effective date of ordinance Late spring/ Summer Receipt of 2020 Census 2021 data November 1, 2021 Deadline for Redistricting July 6, 2022 Last day to file the Notice of Election with the Registrar of Voters July 18, 2022 Opening of Nomination Period November 8, 2022 First election using new by-division election system August 20, 2020 Regular Board Meeting Agenda Packet- Page 121 of 200 Page 29 of 48 OPTION 2 DRAFT ROI (ATTACHMENT 4) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions) RESOLUTION NO. RESOLUTION OF THE BOARD OF DIRECTORS OF CENTRAL CONTRA COSTA SANITARY DISTRICT DECLARING ITS INTENT TO CHANGE FROM AN AT-LARGE ELECTION SYSTEM TO A BY-DIVISION ELECTION SYSTEM FOR ELECTING DIRECTORS, OUTLINING SPECIFIC STEPS TO BE UNDERTAKEN TO FACILITATE THE CHANGE, AND ESTIMATING A TIMEFRAME FOR ACTION WHEREAS, Central Contra Costa Sanitary District ("District") is a Sanitary District duly organized under the Sanitary District Act of 1923 (Health & Safety Code §§ 6400 - 6830) and governed by special legislation added by Stats. 1999, Ch. 696, Sec. 1 (Health & Safety Code §§ 6590 - 6595). WHEREAS, the District's Board of Directors is comprised of five Directors currently elected in "at-large" elections, in which each Director is elected by the registered voters of the entire District; in alternating even-numbered election years the District voters elect either two or three members to the Board of Directors by a plurality-win vote with the top vote-getters elected; and WHEREAS, on July 13, 2020, the District received a letter from attorney Kevin Shenkman of the law firm of Shenkman & Hughes, asserting that the District's at- large election system violates the California Voting Rights Act of 2001 ("CVRA") and threatening litigation if the District does not voluntarily change to a by- division election system for electing Directors; and WHEREAS, in a by-division election system, the District would be divided into sub-parts called "director divisions" for the purposes of conducting elections; voters in a division would vote once every four years and only for candidates who live in that division with the single top vote-getter in each division elected (see Health & Safety Code § 6591(b)); board seats for each of three divisions would be on the ballot in one election year; seats for each of the remaining two divisions would be on the ballot the next election year ("Health & Safety Code § 6591(b)); and WHEREAS, litigation to defend against an alleged violation of the CVRA is extraordinarily expensive and if the defendant loses, it is required to pay the plaintiff's reasonable attorneys' fees and expenses, which in most cases to date have been significantly over a million dollars; and August 20, 2020 Regular Board Meeting Agenda Packet- Page 122 of 200 Page 30 of 48 OPTION 2 DRAFT ROI (ATTACHMENT 4) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions) WHEREAS, the California Legislature, in amendments to Elections Code section 10010 and enacting section 10650, has provided a process whereby a jurisdiction can change to a by-district election system and be protected from litigation under the CVRA (Elec. Code § 10010(e)); and WHEREAS, changing to a by-district electoral system pursuant to Elections Code section 10010 would avoid the extraordinary cost to defend against a CVRA lawsuit; and WHEREAS, the multi-hearing and notice process set forth in Elections Code section 10010 and other legal requirements do not permit the District to implement by-division elections at the November 3, 2020 elections for members of the District Board of Directors; and WHEREAS, the first general District election for members of the District Board of Directors at which a by-division electoral system could be used is November 8, 2022; and WHEREAS, the federal decennial Census is currently underway, and the results will be available to local jurisdictions in 2021; and WHEREAS, Health & Safety Code section 6592 may require the Board of Directors to adjust the boundaries of the election divisions before November 1, 2021; and WHEREAS, the District denies that its at-large system for electing Directors violates the CVRA or any other provision of law and asserts the District's election system is legal in all respects and further denies any wrongdoing in connection with the manner in which it has conducted its elections; and WHEREAS, despite the foregoing, the Board of Directors has determined that the public interest would be best served by changing to a by-division election system to avoid the risks and costs of defending against a CVRA lawsuit; and WHEREAS, California Elections Code section 10010(a) requires that a district that is changing from an at-large to by-division method election do all the following before the Board of Directors votes to approve or defeat establishing district- based elections: 1. Prior to drawing one or more draft maps of the proposed boundaries of the divisions, the District shall hold at least two public hearings within 30 August 20, 2020 Regular Board Meeting Agenda Packet- Page 123 of 200 Page 31 of 48 OPTION 2 DRAFT ROI (ATTACHMENT 4) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions) days of each other, at which the public is invited to provide input regarding the composition of the divisions; and 2. After all draft maps are drawn, the District shall publish and make available for release at least one draft map and, if members of the Board of Directors will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections shall also be published. The District shall hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections. The first version of a draft map shall be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, it shall be published and made available to the public for at least seven days before being adopted; and WHEREAS, the adoption of a by-division election system will not affect the term of any sitting Director, each of whom will serve out his current term. WHEREAS, Health & Safety Code section 6591, applicable only to the District, provides that the directors may be elected by-divisions if a majority of the voters voting upon the question are in favor of the question at a general district or special election, and that the Board of Directors may adopt a resolution placing the question on the ballot, but Elections Code section 10650 would permit the Board of Directors to make the change to by-division elections without voter approval; and WHEREAS, Governor Gavin Newsom in Executive Orders N-34-20 and N-48-20 tolled the timeframes set forth in Elections Code sections 10010(a) & (e) to protect public health and safety during the period when the State Public Health Officer and other public health officials have determined that it is necessary to engage in physical distancing to minimize the spread of COVID-19, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF CENTRAL CONTRA COSTA SANITARY DISTRICT: 1. The foregoing recitals are true and correct and form the basis of this resolution. August 20, 2020 Regular Board Meeting Agenda Packet- Page 124 of 200 Page 32 of 48 OPTION 2 DRAFT ROI (ATTACHMENT 4) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions) 2. The Board hereby states its intention to change to by-division elections in accordance with all applicable laws in time for the 2022 elections for members of the Board of Directors. 3. The Board of Directors directs the General Manager to retain a demographer and other appropriate consultants, to provide a detailed analysis of the District's demographics and any other information or data necessary to prepare a draft map that divides the District into director divisions in accordance with law. 4. The Board of Directors approves the tentative timeline set forth in Exhibit A, attached to and made a part of this resolution, for conducting a public process pursuant to Elections Code section 10010, and directs staff to further develop the timeline immediately upon the termination of tolling pursuant to Executive Orders N-34-20 and N-48-20 including to accommodate the schedules of all members of the Board of Directors and staff, provided, however, that the final timeline shall not prevent the District from adopting a map for by-division elections in time to use that map for the November 8, 2022 Board of Directors elections. 5. The District General Manager shall inform the Board of Directors as soon tolling pursuant to Executive Orders N-34-20 and N-48-20 is terminated. 6. The Board of Directors delegates to the General Manager responsibility to develop and execute a program to inform the residents of the District of this resolution and the process set forth in Exhibit A, and to facilitate and encourage public participation,including the opportunity to vote on the change to by-division elections in a ballot measure (Health & Safety Code section 6590, et. seq.). 7. The District General Manager shall inform the Board of Directors as soon as the 2021 Census data is available, shall cause the District's demographer to analyze the demographics of the adopted map under that data, and shall report to the Board of Directors the results of the demographer's analysis. 8. If the District's demographer concludes that the director divisions do not satisfy the legal requirement for reasonable population equality among the divisions or is otherwise inconsistent with law, the General Manager shall inform the Board of Directors and develop and present to the Board of Directors a process and timeline for making adjustments to the director division boundaries on or before November 1, 2021. August 20, 2020 Regular Board Meeting Agenda Packet- Page 125 of 200 Page 33 of 48 OPTION 2 DRAFT ROI (ATTACHMENT 4) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions) 8.The Board of Directors reserves the right to repeal this resolution or re-establish at-large elections in accordance with law should the CVRA be declared illegal, or as may be in the best interests of the District. PASSED AND ADOPTED this _ day of , 2020, at a regular meeting of the Board of Directors of the Central Contra Costa Sanitary District by the following vote: PASSED AND ADOPTED this _ day of , 2020, at a regular meeting of the Board of Directors of the Central Contra Costa Sanitary District by the following vote: AYES: Members: NOES: Members: ABSENT: Members: Michael R. McGill, P.E. President of the Board of Directors Central Contra Costa Sanitary District, County of Contra Costa, State of California COUNTERSIGNED: Katie Young Secretary of the Central Contra Costa Sanitary District, County of Contra Costa, State of California Approved as to Form: Kenton L. Alm, Esq. District Counsel August 20, 2020 Regular Board Meeting Agenda Packet- Page 126 of 200 Page 34 of 48 OPTION 2 DRAFT ROI (ATTACHMENT 4) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions) EXHIBIT A TENTATIVE TIMELINE:ADOPTION &IMPLEMENTATION OF BY-DIVISION ELECTIONS DATE EVENT COMMENT August 20, 2020 Adoption of Resolution of CVRA lawsuit cannot Intent be commenced for 90 days. November 3, 2020 General District Election November 3, 2020 TBD Public Outreach NO MAPS YET DRAWN TBD Termination of See Ex. Orders N-34-20 & Executive Order N-48-20 Tolling TBD 1st Public Hearing Re: Composition of Divisions; NO MAPS YET DRAWN TBD 2nd Public Hearing; Re: Composition of Set Deadline for Receipt of Divisions; Maps from Members of NO MAPS YET DRAWN Public TBD Suggested deadline for submission of draft maps by members of the public TBD Publish Draft Maps and Potential Sequence of Elections TBD 3rd Public Hearing Re: Draft Maps; A new map &sequence of elections must be published 7 days before 41h public hearing TBD 4th Public Hearing; Re: Draft Maps; Introduce ordinance or If selected map is resolution establishing by- amended, ordinance division elections, adopting cannot be introduced division boundaries, and until 7 days after setting election sequence amended map is published. This will require an adjustment to the timeline August 20, 2020 Regular Board Meeting Agenda Packet- Page 127 of 200 Page 35 of 48 OPTION 2 DRAFT ROI (ATTACHMENT 4) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions) TBD Sth Public Hearing; 2nd reading of ordinance: approval or defeat of ordinance or resolution TBD Day 90 2nd Safe Harbor period ends TBD Effective date of ordinance Late spring/ Summer Receipt of 2020 Census 2021 data November 1, 2021 Deadline for Redistricting July 6, 2022 Last day to file the Notice o Election with the Registrar of Voters July 18, 2022 Opening of Nomination Period November 8, 2022 First election using new by- division election system August 20, 2020 Regular Board Meeting Agenda Packet- Page 128 of 200 Page 36 of 48 OPTION 3 DRAFT ROI (ATTACHMENT 5) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions and Receipt of the 2020 Census Data) RESOLUTION NO. RESOLUTION OF THE BOARD OF DIRECTORS OF CENTRAL CONTRA COSTA SANITARY DISTRICT DECLARING ITS INTENT TO CHANGE FROM AN AT-LARGE ELECTION SYSTEM TO A BY-DIVISION ELECTION SYSTEM FOR ELECTING DIRECTORS, OUTLINING SPECIFIC STEPS TO BE UNDERTAKEN TO FACILITATE THE CHANGE, AND ESTIMATING A TIMEFRAME FOR ACTION WHEREAS, Central Contra Costa Sanitary District ("District") is a Sanitary District duly organized under the Sanitary District Act of 1923 (Health & Safety Code §§ 6400 - 6830) and governed by special legislation added by Stats. 1999, Ch. 696, Sec. 1 (Health & Safety Code §§ 6590 - 6595). WHEREAS, the District's Board of Directors is comprised of five Directors currently elected in "at-large" elections, in which each Director is elected by the registered voters of the entire District; in alternating even-numbered election years the District voters elect either two or three members to the Board of Directors by a plurality-win vote with the top vote-getters elected; and WHEREAS, on July 13, 2020, the District received a letter from attorney Kevin Shenkman of the law firm of Shenkman & Hughes, asserting that the District's at- large election system violates the California Voting Rights Act of 2001 ("CVRA") and threatening litigation if the District does not voluntarily change to a by- division election system for electing Directors; and WHEREAS, in a by-division election system, the District would be divided into sub-parts called "director divisions" for the purposes of conducting elections; voters in a division would vote once every four years and only for candidates who live in that division with the single top vote-getter in each division elected (see Health & Safety Code § 6591(b)); board seats for each of three divisions would be on the ballot in one election year; seats for each of the remaining two divisions would be on the ballot the next election year ("Health & Safety Code § 6591(b)); and WHEREAS, litigation to defend against an alleged violation of the CVRA is extraordinarily expensive and if the defendant loses, it is required to pay the plaintiff's reasonable attorneys' fees and expenses, which in most cases to date have been significantly over a million dollars; and August 20, 2020 Regular Board Meeting Agenda Packet- Page 129 of 200 Page 37 of 48 OPTION 3 DRAFT ROI (ATTACHMENT 5) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions and Receipt of the 2020 Census Data) WHEREAS, the California Legislature, in amendments to Elections Code section 10010 and enacting section 10650, has provided a process whereby a jurisdiction can change to a by-district election system and be protected from litigation under the CVRA (Elec. Code § 10010(e)); and WHEREAS, changing to a by-district electoral system pursuant to Elections Code section 10010 would avoid the extraordinary cost to defend against a CVRA lawsuit; and WHEREAS, the multi-hearing and notice process set forth in Elections Code section 10010 and other legal requirements do not permit the District to implement by-division elections at the November 3, 2020 elections for members of the District Board of Directors; and WHEREAS, the first general District election for members of the District Board of Directors at which a by-division electoral system could be used is November 8, 2022; and WHEREAS, the federal decennial Census is currently underway, and the results will be available to local jurisdictions in 2021; and WHEREAS, Health & Safety Code section 6592 may require the Board of Directors to adjust the boundaries of the election divisions before November 1, 2021; and WHEREAS, the District denies that its at-large system for electing Directors violates the CVRA or any other provision of law and asserts the District's election system is legal in all respects and further denies any wrongdoing in connection with the manner in which it has conducted its elections; and WHEREAS, despite the foregoing, the Board of Directors has determined that the public interest would be best served by changing to a by-division election system to avoid the risks and costs of defending against a CVRA lawsuit; and WHEREAS, California Elections Code section 10010(a) requires that a district that is changing from an at-large to by-division method election do all the following before the Board of Directors votes to approve or defeat establishing district- based elections: 1. Prior to drawing one or more draft maps of the proposed boundaries of the divisions, the District shall hold at least two public hearings within 30 August 20, 2020 Regular Board Meeting Agenda Packet- Page 130 of 200 Page 38 of 48 OPTION 3 DRAFT ROI (ATTACHMENT 5) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions and Receipt of the 2020 Census Data) days of each other, at which the public is invited to provide input regarding the composition of the divisions; and 2. After all draft maps are drawn, the District shall publish and make available for release at least one draft map and, if members of the Board of Directors will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections shall also be published. The District shall hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections. The first version of a draft map shall be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, it shall be published and made available to the public for at least seven days before being adopted; and WHEREAS, the adoption of a by-division election system will not affect the term of any sitting Director, each of whom will serve out his current term. WHEREAS, Health & Safety Code section 6591, applicable only to the District, provides that the directors may be elected by-divisions if a majority of the voters voting upon the question are in favor of the question at a general district or special election, and that the Board of Directors may adopt a resolution placing the question on the ballot, but Elections Code section 10650 would permit the Board of Directors to make the change to by-division elections without voter approval; and WHEREAS, Governor Gavin Newsome in Executive Orders N-34-20 and N-48-20 tolled the timeframes set forth in Elections Code sections 10010(a) & (e) to protect public health and safety during the period when the State Public Health Officer and other public health officials have determined that it is necessary to engage in physical distancing to minimize the spread of COVID-19, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF CENTRAL CONTRA COSTA SANITARY DISTRICT: 1. The foregoing recitals are true and correct and form the basis of this resolution. August 20, 2020 Regular Board Meeting Agenda Packet- Page 131 of 200 Page 39 of 48 OPTION 3 DRAFT ROI (ATTACHMENT 5) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions and Receipt of the 2020 Census Data) 2. The Board hereby states its intention to change to by-division elections in accordance with all applicable laws in time for the 2022 elections for members of the Board of Directors. 3. The Board of Directors directs the General Manager to retain a demographer and other appropriate consultants, to provide a detailed analysis of the District's demographics and any other information or data necessary to prepare a draft map that divides the District into director divisions in accordance with law. 4. The Board of Directors approves the tentative timeline set forth in Exhibit A, attached to and made a part of this resolution, for conducting a public process pursuant to Elections Code section 10010, and directs staff to further develop the timeline upon the termination of tolling pursuant to Executive Orders N-34-20 and N-48-20 and receipt of the 2020 Census data, including to accommodate the schedules of all members of the Board of Directors and staff, provided, however, that the final timeline shall not prevent the District from adopting a map for by- division elections in time to use that map for the November 8, 2022 Board of Directors elections. 5. The District General Manager shall inform the Board of Directors as soon as a) the 2021 Census data is available or b) tolling pursuant to Executive Orders N-34- 20 and N-48-20 is terminated, whichever occurs first. 6. The Board of Directors delegates to the General Manager responsibility to develop and execute a program to inform the residents of the District of this resolution and the process set forth in Exhibit A, and to facilitate and encourage public participation,including the opportunity to vote on the change to by-division elections in a ballot measure (Health & Safety Code section 6590, et. seq.). 7.The Board of Directors reserves the right to repeal this resolution or re-establish at-large elections in accordance with law should the CVRA be declared illegal, or as may be in the best interests of the District. [THIS SPACE INTENTIONALLY BLANK] August 20, 2020 Regular Board Meeting Agenda Packet- Page 132 of 200 Page 40 of 48 OPTION 3 DRAFT ROI (ATTACHMENT 5) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions and Receipt of the 2020 Census Data) PASSED AND ADOPTED this _ day of , 2020, at a regular meeting of the Board of Directors of the Central Contra Costa Sanitary District by the following vote: AYES: Members: NOES: Members: ABSENT: Members: Michael R. McGill, P.E. President of the Board of Directors Central Contra Costa Sanitary District, County of Contra Costa, State of California COUNTERSIGNED: Katie Young Secretary of the Central Contra Costa Sanitary District, County of Contra Costa, State of California Approved as to Form: Kenton L. Alm, Esq. District Counsel August 20, 2020 Regular Board Meeting Agenda Packet- Page 133 of 200 Page 41 of 48 OPTION 3 DRAFT ROI (ATTACHMENT 5) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions and Receipt of the 2020 Census Data) EXHIBIT A TENTATIVE TIMELINE:ADOPTION &IMPLEMENTATION OF BY-DIVISION ELECTIONS DATE EVENT COMMENT August 20, 2020 Adoption of Resolution of CVRA lawsuit cannot Intent be commenced for 90 days. November 3, 2020 General District Election November 3, 2020 TBD Public Outreach NO MAPS YET DRAWN TBD Termination of See Ex. Orders N-34-20 & Executive Order N-48-20 Tolling Late spring/ Summer Receipt of 2020 Census 2021 data TBD 1st Public Hearing Re: Composition of Divisions; NO MAPS YET DRAWN TBD 2nd Public Hearing; Re: Composition of Set Deadline for Receipt of Divisions; Maps from Members of NO MAPS YET DRAWN Public TBD Suggested deadline for submission of draft maps by members of the public TBD Publish Draft Maps and Potential Sequence of Elections TBD 3rd Public Hearing Re: Draft Maps; A new map &sequence of elections must be published 7 days before 4th public hearing TBD 4th Public Hearing; Re: Draft Maps; Introduce ordinance or If selected map is resolution establishing by- amended, ordinance division elections, adopting cannot be introduced until 7 days after August 20, 2020 Regular Board Meeting Agenda Packet- Page 134 of 200 Page 42 of 48 OPTION 3 DRAFT ROI (ATTACHMENT 5) (Develop Director Divisions After Termination of Executive Order Tolling of Safe Harbor Provisions and Receipt of the 2020 Census Data) division boundaries, and amended map is setting election sequence published. This will require an adjustment to the timeline TBD 5th Public Hearing; 2nd reading of ordinance: approval or defeat of ordinance or resolution TBD Day 90 2nd Safe Harbor period ends TBD Effective date of ordinance July 6, 2022 Last day to file the Notice o Election with the Registrar of Voters July 18, 2022 Opening of Nomination Period November 8, 2022 First election using new by- division election system August 20, 2020 Regular Board Meeting Agenda Packet- Page 135 of 200 ATTACHMENT 6 EXECUTIVE DEPARTMENT STATE OF CALIFORNIA EXECUTIVE ORDER N-34-20 WHEREAS on March 4, 2020, l proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19; and WHEREAS hundreds of local governments across the state have also declared states of emergency, imposed or recommended social distancing, Page 43 of 48 and taken other significant steps in response to COVID-19; and WHEREAS various political subdivisions within California are in the process of changing from an at-large method of election to district elections, existing law requires public hearings to be conducted within prescribed timeframes as part of this change, and conducting such hearings within these timeframes would be incongruent with public health officials' guidance regarding social distancing; and WHEREAS California held a Presidential Primary Election on March 3, 2020, for which ballot counting, tabulation, and other responsibilities related to the official canvass, including certification of the canvass, audits and/or manual tallies of election results, and reporting of the official canvass results, remain outstanding or ongoing; and WHEREAS COVID-19 and the response thereto may impair the ability of relevant state and local officials, including county elections officials and the Secretary of State, and the volunteers supporting them, to meet statutory deadlines associated with these responsibilities; and WHEREAS on November 15, 2019, 1 proclaimed a Special General Election to be held on May 12, 2020, to fill a vacancy in the State Senate seat representing the 28th Senate District of the State, in Riverside County; and WHEREAS on November 15, 2019, 1 proclaimed a Special General Election to be held on May 12, 2020, to fill a vacancy in the U.S. House of Representatives seat representing the 25th Congressional District of the State, which covers portions of the counties of Ventura and Los Angeles; and WHEREAS on April 7, 2020, a Special Recall Election will be held in the City of Westminster, in the County of Orange; and WHEREAS state law would ordinarily require that these elections be conducted using in-person voting at polling locations throughout the jurisdiction; and WHEREAS the generalized use of in-person voting presents risks to public health and safety in light of the COVID-19 pandemic, and could risk undermining social distancing measures imposed by the State Public Health Officer, as well as other aspects of the response to COVID-19; and 5: _ August 20, 2020 Regular Board Meeting Agenda Packet- Page 136 of 200 WHEREAS our elections must be accessible, secure, and safe; and WHEREAS California's existing vofe-by-mail procedures can be used to allow these three elections to go forward in a manner that is accessible, secure, and safe. NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes of the State of California, and in particular, Government Code sections 8567 and 8571 , do hereby issue the following Order to become effective Page 44 of 48 immediately: IT IS HEREBY ORDERED THAT: 1 ) The timeframes for conducting the hearings required when a political subdivision changes from an at-large method of election to a district- based election, as set forth in Elections Code section 10010, are suspended for any subdivision, until such time as neither state nor local public health officials recommend or impose social distancing measures in the relevant subdivision. Following that time, the relevant subdivision shall hold the required hearings in a manner that ensures the public is provided advance notice and is afforded an opportunity to participate in the postponed hearings; subdivisions are urged to ensure that this process includes effective outreach to individuals with disabilities, individuals who primarily speak languages other than English, and other individuals who may have particularized needs. 2) Notwithstanding Elections Code sections 3019, 15100-15112, 15300- 15376, 15400-15402, 15450-15490, and 15500-15505; California Code of Regulations, Title 2, sections 20027, 20108.75, 20108.8, and 20110-20126; and any other applicable provision of state law, all deadlines associated with completing, auditing, and reporting on the official canvass of the March 3, 2020, Presidential Primary Election are extended by 21 days. Counties are urged to complete activities related to the official canvass according to the deadlines ordinarily imposed by state law, to the extent possible. The Secretary of State is requested to issue guidance to county elections officials concerning compliance with this paragraph. 3) Notwithstanding Elections Code sections 1500 and 4000-4007 (including, but not limited to, the conditions otherwise imposed on all- mail ballot elections in Election Code section 4000 and 4001 .5), and any other applicable provision of state law, the April 7, 2020, Special Recall Election to be held in the City of Westminster; the May 12, 2020, Special General Election to be held within the 25th Congressional District of the State; and the May 12, 2020, Special General Election to be held within the 28fh Senate District of the State shall each be held as an all-mail ballot election and conducted according to those provisions of the Elections Code that govern all-mail ballot elections, including but not limited to Elections Code sections 3000-3026 and 4100. The respective county elections officials responsible for conducting each respective election shall transmit vote-by-mail ballots to all voters eligible to vote in each respective election. Notwithstanding the other provisions of this Order, elections officials are -r°rte}, August 20, 2020 Regular Board Meeting Agenda Packet- Page 137 of 200 also authorized, and encouraged, to make in-person voting opportunities available on or before Election Day for each of these elections in a manner consistent with public health and safety, to maximize voter accessibility. Elections officials shall provide maximum possible notice to voters about how to participate in each of these elections, paying particular attention to the needs of voters at high risk from COVID-19, individuals with disabilities, and other voters with particularized needs. 4) Notwithstanding Elections Code sections 3019, 15100-15112, 15300- 15376, 15400-15402, 15450-15490, and 15500-15505; California Codep�45 of 48 Regulations, Title 2, sections 20027, 20108.75, 20108.8, and 20110-201261- and 0110-20126;and any other applicable provision of state law including, but not limited to, any applicable state regulation, all deadlines associated with completing, auditing, and reporting on the official canvass of the May 12, 2020, Special General Elections to be held within the 25th Congressional District of the State and the 28th Senate District of the State are extended by 21 days. Counties are urged to complete activities related to the official canvass according to the deadlines ordinarily imposed by state law, to the extent possible. The Secretary of State is requested to issue guidance to county elections officials concerning compliance with this paragraph. IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Order. This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person. IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of the State of Californ' to be of ixed this 20th day Mar X020. GAVI MEWS M V nor of California ATTEST: ALEX PADILLA Secretary of State August 20, 2020 Regular Board Meeting Agenda Packet- Page 138 of 200 ATTACHMENT 7 EXECUTIVE DEPARTMENT STATE OF CALIFORNIA EXECUTIVE ORDER N-48-20 WHEREAS on March 4, 2020, 1 proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19; and WHEREAS on March 19, 2020, 1 issued Executive Order N-33-20, directin a1I Californians to heed State Public Health Officer directives requiring them to s age 46 of 48 home except for essential needs; and WHEREAS local governments throughout the State have also proclaimed local emergencies, imposed stay-at-home orders and other forms of physical distancing, and taken other significant steps in response to COVID-19; and WHEREAS on May 19, 2020, a Special Recall Election will be held in the City of Santa Ana, in the County of Orange; and WHEREAS on June 2, 2020, a Special Municipal Election will be held in the City of Commerce, in the County of Los Angeles; and WHEREAS on June 2, 2020, a Special Recall Election will be held in the El Rancho Unified School District, in the County of Los Angeles; and WHEREAS state law would ordinarily require that these elections be conducted using in-person voting at polling locations throughout the jurisdiction,- and urisdiction;and WHEREAS the generalized use of in-person voting presents risks to public health and safety in light of the COVID-19 pandemic, and risks undermining physical distancing measures imposed by the State Public Health Officer, as well as other aspects of the response to COVID-19; and WHEREAS our elections must be accessible, secure, and safe; and WHEREAS California's existing vote-by-mail procedures can be used to allow these elections to go forward in a manner that is accessible, secure, and safe; and WHEREAS various political subdivisions of the State have been in the process of changing from an at-large method of election to district-based elections, requiring a series of public hearings, which are intended to be conducted before the expiration of a safe-harbor provision under Elections Code section 10010; and WHEREAS on March 20, 2020, 1 issued Executive Order N-34-20, which suspended the timeframes for conducting these public hearings; and WHEREAS uncertainty regarding Elections Code section 10010 could nevertheless induce political subdivisions to hold these public hearings in the near future—at a time when public health requires that Californians stay home except for essential needs, and otherwise engage in physical distancing, to minimize the spread of COVID-19; and August 20, 2020 Regular Board Meeting Agenda Packet- Page 139 of 200 WHEREAS holding these hearings in the near future—at a time when public health requires that Californians stay home except for essential needs—would threaten public health and safety, and would force Californians to choose between fully participating in their democratic process and safeguarding their own health and safety, as well as the health and safety of their communities; and WHEREAS under the provisions of Government Code section 8571 , 1 find that strict compliance with various statutes specified in this order would prev$nf cje 47 of 48 hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19 pandemic. NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes of the State of California, and in particular, Government Code sections 8567, 8571 , and 8627, do hereby issue the following Order to become effective immediately: IT IS HEREBY ORDERED THAT: 1 ) Notwithstanding Elections Code sections 1500 and 4000--4007 (including, but not limited to, the conditions otherwise imposed on all- mail ballot elections in Elections Code sections 4000 and 4001 .5), and any other applicable provision of state law, the following elections shall each be held as an all-mail ballot election: • The May 19, 2020, Special Recall Election to be held in the City of Santa Ana; • The June 2, 2020, Special Municipal Election to be held in the City of Commerce; and • The June 2, 2020, Special Recall Election to be held in the EI Rancho Unified School District. Each of these elections shall be conducted according to the provisions of the Elections Code that govern all-mail ballot elections, including but not limited to Elections Code sections 3000-3026 and 4100. The respective county elections officials responsible for conducting each respective election shall transmit vote-by-mail ballots to all voters eligible to vote in each respective election. Notwithstanding any other provision of this Order, elections officials are also authorized to make in-person voting opportunities available for each of these elections, on or before Election Day, in a manner that is consistent with public health and safety. The purpose of this authorization is to maximize voter opportunities to participate in these elections without jeopardizing public health and safety. Elections officials shall provide maximum possible notice to voters about how to participate in each of these elections, paying particular attention to the needs of voters at high risk from COVID-19, individuals with disabilities, and other voters with particularized needs. ;i, August Regular Board Meeting Agenda Packet- Page 140 of 200 2) To clarify the scope of Paragraph 1 of Executive Order N-34-20, (March 20, 2020), without changing its effective date, that paragraph is modified to read as follows: The timeframes set forth in Elections Code section 10010, subdivisions (a) and (e), are suspended as to any political subdivision of the State. The purpose of this suspension is to protect public health and safety during the period when the State Public Health Officer and other public health officials have determined that it is necessary to engage in physical distancing to minimize the spread of COVID-19. This Page 48 of 48 suspension shall be in effect until further notice. This paragraph pauses the timeframes set forth in Elections Code section 10010, subdivisions (a) and (e), but does not restart them: this paragraph should be construed to toll those timeframes, such that days elapsed during the suspension set forth in this paragraph are not counted, but any days that elapsed prior to that suspension are still counted. This paragraph shall not preclude a prospective plaintiff obtaining reimbursement from a political subdivision under subdivision (f) of Elections Code section 10010, in the manner set forth in that subdivision. IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Order. This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person. IN WITNESS WHEREOF I have hereunto set my h nd and ca sed the Great Seal of the Stat of Californi to be affixed this 9th day of ril2020. G IN NEWS6M rnor of California ATTEST: ALEX PADILLA Secretary of State L AUgUSt 2U, 2U20 Regular Roard Meeting Agenda Packet- Page 141 of 200