SR-CC-1
.~
CA:RMM:jlm059jhpc 4It 4It eC:-1
MAR 1 7 1987
City Council Meeting 3-17-87 Santa Monica, California
I 0 if ...- ODD -03
STAFF REPORT
TO: Mayor and City Council
FROM: city Attorney
SUBJECT: Summary of Campaign Financing, Election
Procedure, and voting Discrimination
Case Law
INTRODUCTION
At its meeting on January 13, 1987, the city Council
directed the City Attorney to prepare a Staff Report summarizing
the state of the law with regard to local regulation of election
campaign practices. In response to this direction, this Staff
Report and accompanying appendices have been prepared and are
presented to the City Council for its consideration.
BACKGROUND
Numerous cities and counties have attempted to address
election practices through the adoption of local ordinances.
Over the last two decades, the courts have considered on numerous
occasions various campaign financing, election procedure, and
voting lawsuits. What follows is a synopsis of the current state
of the law regarding these matters.
Part I discusses the state of the law with regard to
campaign financing and election tactics. Part II presents a
specific review of several recently adopted ordinances regulating
ee-I
- 1 - MAR 1 7 1987
-- - --- ------ --
"'-
campaign prJltices. . voting Rights
local Part III addresses the
Act and case law related to the specific proposal of numbered
city council seats.
Appendix A contains a summary of various local ordinances
adopted throughout the state, issued by the Fair Political
Practices commission ("FPPC" ) in March 1985. In addition,
ordinances either adopted more recently than March 1985, or with
innovative provisions, by the city of Los Angeles, Orange County,
County of Sacramento, City of San Diego, City of Seattle, and
city of Tucson are contained in Appendices B to G.
I. LEGAL RESTRICTIONS ON LOCAL REGULATION OF CAMPAIGN
FINANCING, ELECTION TACTICS, AND VOTING PRACTICES.
A. Campaiqn Financinq.
It is now clear that limitations on the amount of personal
money candidates can expend on their campaigns is
unconstitutional. In Buckley v. Valeo, 424 U.S. 1 (1976), the
Supreme Court considered a broad based attack on the Federal
Election Campaign Act, 2 U.S.C. Section 431 et seq. The law
limited the expenditures by a candidate "from his personal funds,
or the personal funds of his immediate family, in connection with
his campaigns." The Court concluded that such a limitation
II imposes a substantial restraint on the ability of persons to
engage in protected First Amendment expression" and invalidated
the provision. 424 U.S. at 52.
Likewise, in Buckley, the Court considered it
unconstitutional to limit the independent expenditures that an
individual could make in support of a candidate. Id. at 5l. In
- 2 -
--
this . distinguished . contribution
regard, the Court between
limitations to specific candidates, which it deemed
constitutional ( id . at 35), and expenditure limitations. To the
Court, placing a limitation on the amount of money someone could
contribute directly to a candidate either through cash or
volunteer services and supplies furthered the substantial
governmental interest of reducing the likelihood that a candidate
could be "bought.1I
The same considerations were rejected with respect to an
individual's ability to expend money in support of a candidate
but independently of actually contributing to a candidate's
campaign. (E.g., placing a newspaper advertisement in support of
a candidate.) The Court considered such limitations an
unconstitutional restriction on the first amendment rights of
persons desiring to independently spend their money.
In harmony with the view that it would be unconstitutional
to restrict independent expenditures by individuals, the Court
concluded that it is likewise unconstitutional to limit the
independent expenditures of corporations and unions. In First
National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978) ,
the Court concluded that the II inherent worth of speech in terms
of its capacity for informing the public does not depend upon the
identity of its source, whether corporation, association, union
or individual. " See Central Hudson Gas and Electric Co. v.
Public Service Comm. , 447 U.S. 530 (1980) (invalidating a law
limiting a corporation's ability to include flyers in their
billing statements).
- 3 -
't' .. t .
In C1 1zens Kga1ns Rent Control v. City of Berkeley, 454
U.S. 290 (1981), the Court followed its holdings in Buckley and
First National Bank and ruled that Berkeley's $250 campaign
contribution limitation to committees formed to support or oppose
ballot measures violates the First Amendment rights of speech and
association. To the Court, such a limitation prevented "the
clash of different views and conflicting ideas.1I Id. at 295.
To place a Spartan limit - or indeed any
limit - on individuals wishing to band
together to advance their views on a
ballot measure, while placing none on
individuals acting alone, is clearly
restraint on the right of association.
Id. at 296.
A different result was reached with respect to corportation
and union contributors directed at influencing candidate
campaigns. In Federal Election Comm'n v. National Right to Work
Committee, 459 U.S. 197 (1982) , the Court distinguished between
expenditures designed to influence referenda and other ballot
measures, which were at issue in First National Bank and in
citizens Against Rent control, and "the constitutionality of laws
prohibiting or limiting corporate [or union) contributions to
political candidates or committees, or other means of influencing
candidate elections." Id. at 210 n.7 (emphasis in original) .
with respect to the latter, the Court noted that there has been a
historic determination that "there may well be a threat of real
or apparent corruption." Id. Corporations and unions, which can
garner vast sums of money for or against candidates, have the
- 4 -
extrcl .
capacity to "political debts" which can corrupt the
"integri ty of the electoral process." Id. at 208. Consequently,
their contributions to candidates can be sharply regulated.
Apart from contributions, the Court has dealt with
expenditure limitations imposed . themselves. In
on campa~gns
Buckley, the Court invalidated limitations designed to set a
ceiling on the amount of money candidates could spend on
campaigns. The Court specifically rejected arguments that such
spending ceilings were necessary (1) to curtail candidate
dependence on large contributions and (2) to equalize the
financial resources of competing candidates.
The Buckley court also dealt with a challenge to the
disclosure and reporting requirements of federal law which
obligated campaigns to divulge lists of contributors and how the
campaigns spent money. In addition, the Court dealt with
reporting requirements placed on political action committees
which also obligated such committees to report contributors and
expenditures. with respect to all of these reporting
requirements, the Court declared the law constitutional. The
requirements advanced the substantial governmental interests of
(1) providing lithe electorate with information 'as to where
political campaign money comes from and how it is spent'''; (2)
deterring actual corruption and the avoidance of the appearance
of corruption by exposing contributions "to the light of
publicity"; and (3) helped detect violations of law. 424 U.S. at
66-68.
- 5 -
.. . .
B. E1ectlon Tactlcs.
Other challenges to campaign laws have also occurred with
respect to election tactics. In Brown v. Hartlage, 456 U.S. 45
(1982) , the Court invalidated a Kentucky law that made it a crime
for a candidate "to promise, agree or make a contract with any
person to vote for or support any individual, thing or measure."
In Brown, the law was used to convict a candidate for county
commissioner who had pledged if elected to serve his term for $l
in pay instead of the $20,000 provided for by statute. The Court
agreed that governments had a strong interest in ensuring that
its officials discharge their responsibilities and that
government has a legitimate interest in upholding the integrity
of the electoral process. However, a limit on campaign speech
and the "offer of ideas" was not constitutionally permitted. 456
U.s. at 52-54.
In City Council v. Taxpayers for Vincent, 466 u.s. 789
(1984) , the Court upheld a municipal ordinance which prohibited
the posting of signs on public property. The Court rejected the
argument that such a law infringed upon a candidate's First
Amendment rights in that candidates possess other avenues of
communication with the public than posting signs on municipal
property.
In Schuster v. Municipal Court, 109 Cal. App. 3d 887, 167
Cal. Rptr. 447 (1980) , cert. denied, 450 U.S. 1042 (1981) , the
California Court of Appeals struck down a statute prohibiting all
anonymous political campaign literature, finding this statute to
be constitutionally overbroad. Accord People v. Bonqiorni, 205
Ca1. App. 2d Supp. 856, 23 Cal. Rptr. 565 (1962) ; State v.
- 6 -
-
, .
Fulton, 337 So. 866 (La. 1976); state v. North Dakota
Education Ass'n, 262 N. W. 2d 731 (N.D. 1978) . Contra state v.
Acey, 633 S.W.2d 306 (Tenn. 1982) .
However, statutes which are more narrowly drawn have been
found to withstand challenge. Thus, in Canon v. Justice Court,
61 Cal. 2d 446, 393 P.2d 428, 39 Cal. Rptr. 228 (1964) , the
California Supreme Court upheld a statute which forbade
publications "designed to injure or defeat any candidate . . . by
reflecting upon his personal character or political action"
unless the names and addresses of the sponsors appeared on the
pUblication. Accord Huntley v. Public utilities Comm'n, 69 Cal.
2d 67, 442 P.2d 685, 69 Cal. Rptr. 605 (1968).
In similar regard, a statute, such as Santa Monica
Municipal Code Section 11211, which limits disclosure
requirements to literature printed by or on behalf of a candidate
or a committee would likely not be subject to successful
constitutional challenge. See People v. Duryea, 351 N.Y.S.2d
978, 993 (N.Y. 1974), aff'd, 354 N. Y. S. 2d 129 (1974) . In New
York, a state appellate court addressed the question of whether a
statute could prohibit misleading campaign material. It found
such a statute permissible and New York's highest court affirmed.
In the words of the appellate decision: "A narrowly drawn
statute could, constitutionally, prohibit the affirmative
misrepresentation of the source of campaign literature and the
misuse of the name of a political party or candidate in the
attribution of such material." Id. at 988.
- 7 -
. .
II. SUMMARY OF LOCAL ORDINANCES REGULATING ELECTION
PRACTICES.
A. Local Ordinances Adopted Prior to March 1985.
California's Political Reform Act of 1974 (Government Code
Sections 8100 et seq. ) establishes a State Fair Political
Practices commission and provides certain basic requirements
governing state and local elections. It also allows cities and
counties to adopt local campaign laws which further the purposes
of the Act and do not conflict with any of its provisions. When
the Fair Political Practices Commission ("FPPC" ) last surveyed
local laws in March, 1985, 43 cities and counties had adopted
election ordinances, with two of those cities later repealing
their ordinances. The city of Los Angeles recently approved a
charter amendment relating to campaign contributions. Currently,
only the City of Berkeley and the County of Orange have local
Fair Campaign Practices Commissions. The City of Santa Monica
adopted an ordinance abolishing its local commission on February
11, 1986.
Local ordinances cover a number of different areas. The
most common provisions found in local ordinances:
1. Prohibit certain entities from contributing to
campaigns.
2. Limit the amounts that may be conttributed to campaigns
by businesses, political action committees, and individuals.
3. Require lower levels of itemization of campaign
contributors.
4. Limit extensions of credit to campaigns.
- 8 -
--- -
. ... .
5. Requlre addltlonal campaign statements to be filed
before local elections.
6. Impose separate penalties for violations of local
ordinances.
7. Require lists of campaign contributors to be published
in newspapers.
8. Provide a voluntary fair campaign practices pledge to
be taken by candidates for local elections.
Local ordinances are interpreted and enforced by each city
and county. The FPPC does not interpret local ordinances. A
summary of the various local ordinances adopted throughout the
state as of early 1985 is contained in Appendix A.
B. ~nnovative Local Ordinances.
Since the FPPC's written summary of all local election
ordinances in California was issued in March, 1985, at least ten
more cities have adopted local ordinances and several cities have
amended existing ordinances. As summarized below, some local
jurisdictions in California have adopted far-reaching ordinances.
In addition, the cities of Tucson, Arizona and Seattle,
Washington have adopted innovative ordinances regulating local
election practices, as discussed below.
City of Los Angeles (Appendix B). The city of Los Angeles
adopted a local contribution limits law on April 9, 1985, when
the voters approved Charter Amendment Number 1. At present, Los
Angeles is considering amending its law. Basic provisions of the
current Los Angeles law include the following:
- 9 -
. .
1. contributions to City Council candidates are limited to
no more than $500 per election. Candidates for citywide offices
of mayor, city attorney, and city assessor may receive up to
$1,000 per contributor per election.
2. A total limit is placed on the amount contributors can
give to all candidates running for city office. For example, in
1987, a contributor can give no more than $3,500 (7 races x $500)
to all candidates running for city council in the April primary
election. If there is a runoff election, a contributor can give
an additional $500 times the number of runoff elections.
3. A candidate for city office may not accept any
contributions until that candidate has filed a Declaration of
Candidacy.
4. Although the law went into effect on July 1, 1985,
contributions raised prior to the effective date and surplus
funds can be used for the 1987 election.
The more far-reaching provisions of the Los Angeles law
include the following:
1. Candidates can only keep up to $5,000 once a campaign
has ended. Surplus funds must be returned to the contributors,
donated to a charitable organization, or paid to the City.
This section prohibits large campaign "war chestsll from
being carried over from election to election, but it also
encourages candidates to spend all the campaign funds that they
collect.
2. A candidate is not permitted to spend more than $30,000
of his or her own money on the campaign unless the campaign
notifies opponents at least thirty days before the election and
- 10 -
. .
states the amount the candidate intends to spend. This notice
permits all opponents of the wealthy candidates to raise an
equivalent amount of contributions in excess of contribution
limits.
3. A citizen may sue for injunctive relief to compel
compliance or enjoin violations of the Los Angeles law. However,
unlike the Political Reform Act, a citizen cannot collect
damages.
A maj or loophole in the law is that it does not regulate
political action committees of office holders formed for purposes
other than City election campaigns.
County of Oranqe (Appendix C) . Orange County has perhaps
the most unique local ordinance in California. While the
ordinance has been in effect for nearly eight years, it has only
recently been subjected to challenges by opponents of its strict
disqualification provisions. The key Orange County provisions
are as follows:
l. Supervisors are required to disqualify themselves on
votes affecting major campaign contributors. A "major
contributor" is currently defined as one giving approximately
$1,600. The ordinance provides that whenever owners, officers,
or directors of individual corporations become "major
contributors," so do their corporations and partnerships. Once a
contributor exceeds the "disqualification limit," the contributor
must file with the County Clerk a list of all the corporations
and partnerships in which he or she is an officer or director.
- 11 -
. .
2. "County influence brokers" (lobbyists) are governed by
separate and more stringent rules than ordinary contributors. If
a lobbyist contributes over $250 per year to any or all members
of the Board of Supervisors, that individual is required to
register with the Registrar of Voters and to disclose all
clients. After filing such a statement, a "County influence
broker" may given an additional $250 per year for a total of
$500, to any or all supervisors.
3. Violation of the Orange County ordinance constitutes a
misdemeanor. Criminal and injunctive remedies can be imposed for
violation of the ordinance. Furthermore, any vote that violates
the disqualification provision is deemed void.
City of San Dieqo (Appendix D). The City of San Diego has
one of the strictest campaign limitation ordinances in the state.
l. It prohibits contributions by non-individuals and
limits individual contributions to no more than $250 per
election.
2. Contributions may not be deposited until a committee
knows a contributor's name, address, occupation, and employer.
3. Credit may not be given to a candidate for more than 30
days. Extensions of credit for more than $250 are prohibited,
although a candidate may personally borrow an unlimited amount.
Such funds are considered a contribution by the candidate and
must be fully disclosed.
4. Anonymous contributions are limited in that they may
not be received in an aggregate amount of more than $200 per
election.
- 12 -
5. An even~eld in honor or behalf o~ committee, when
the cost of the event is $200 or less, and the event is not held
for the purpose of obtaining contributions, is excluded from the
definition of campaign "contribution."
6. If independent expenditures are made for printed matter
or for a broadcast which supports or opposes a candidate or
committee, a statement must be clearly made that the expenditure
was not authorized by the candidate or committee.
7. Charges by newspapers, magazines, or broadcast stations
to a candidate or a committee may not exceed the charges normally
made for comparable use of such space or time by other users.
8. Every candidate and committee must establish a checking
account in the City of San Diego. All contributions must be
deposited into this checking account within three business days.
Except for petty cash, funds must be disbursed only from this
checking account. Public officers who enforce this act have full
access to this checking account.
9. If a candidate is convicted of a violation of the
ordinance, the candidacy is terminated immediately. If the
candidate is elected and then convicted, the office becomes
vacant immediately. Any person convicted of a violation of this
law cannot run for office for a period of five years after the
conviction.
The most unusual features of the City of San Diego's
ordinance are:
l. The contribution limit is very small for a city the
size of San Diego (975,000) . San Diego is the second largest
city in california, but the $250 limit is smaller than limits in
- 13 -
. .
Los Angeles ($500 for a councilmanic district, $1,000 for
ci tywide office) and in San Francisco ($500 for supervisors who
run citywide) .
2. Only individuals may contribute to candidates running
for City office. Political action committees, corporations,
labor unions, and all other non-individuals, are prohibited from
contributing.
3. The city council recently amended its ordinance so that
before a contribution can be deposited, all disclosure
information must be on file with the candidate or committee.
This ensures that occupations and employers of contributors are
listed on the campaign statements.
County of Sacramento (Appendix E) . The County of
Sacramento has adopted an ordinance recently which will become
effective in April 1987. The key features of this ordinance
include the following:
1. The ordinance limits off-election year contributions by
any person to $250 per year. contributions during an election
year are limited to $500 by any individual and $1,000 by any
organization. The ordinance also imposes an aggregate limitation
of $7,500 on the total contributions that any incumbent or
candidate receive in single off-election It .
can a year. 1.S
possible, therefore, that a campaign supporter would be unable to
contribute to an incumbent or candidate in an off-election year.
2. A candidate can receive county funding in an election
if the candidate satisfies three requirements. The source of
county funding is the general fund. A candidate must file a
- 14 -
. .
statement of acceptance, must raise $10,000 in contributions of
$250 or less from persons other than themselves in the election
year, and must be opposed by another candidate who has raised or
spent $10,000.
3. The ordinance requires candidates to file a statement
of acceptance or rejection of county financing. Candidates
electing to accept county financing are limited to campaign
expenditures of $75,000.
4. The ordinance makes it a misdemeanor for any person to
knowingly or wilfully violate any of its provisions. In
addition, candidates and other county residents are authorized to
maintain civil actions for injunctive or declaratory relief to
enforce the provisions of the ordinance.
City of Tucson (Appendix F) . The city of Tucson has
recently amended its charter to contain elections regulations.
The key provisions are as follows:
l. Campaign contributions are limited to $500 per
individual per candidate, and to $l,OOO per campaign committee
per candidate. It is a violation of the ordinance for a
candidate to accept monies in excess of those amounts during any
campaign period from any individual or campaign committee.
2. The limitations imposed by the ordinance do not apply
to "independent expenditures," which are defined to mean
expenditures by a person for a communication expressly advocating
the support of or opposition to a clearly identified candidate
which is not made with the cooperation or with the prior consent
of such candidate or a candidate's agent or committee.
- 15 -
. .
3. The Tucson charter amendment also provides for
voluntary expenditure limitations. The ordinance establishes a
"campaign contract" which can be entered into by a candidate and
the city in exchange for receiving public matching funds. In
order to receive public matching funds, a candidate must evidence
a certain level of contribution from individual contributors and
must agree to a limitation on his or her personal contributions.
The ordinance establishes permitted uses for public matching
funds and establishes the duties of a campaign finance
administrator in overseeing election campaign accounts, public
matching funds, and administering campaign contracts. The
election campaign account (public matching fund) consists of
general fund appropriations, and gifts and donations made to the
city for the support of public election campaign financing.
4. A violation of the provisions of the ordinance
constitutes a misdemeanor and can lead to denial of the right to
hold office.
City of Seattle (Appendix G) . Seattle adopted a new
ordinance in 1984, which became effective the following year. It
essentially establishes a program of voluntarily limited
expenditures on city election campaigns through a public matching
campaign fund program. Similar to the Tucson ordinance, the
Seattle ordinance establishes a campaign matching fund account
which is accessible and within the control of designated city
officers. Candidates who wish to participate must meet certain
eligibility requirements in order to receive public matching
funds and must enter into campaign contracts with the city. The
- 16 -
. .
ordinance authorizes the city to appropriate general funds for
campaign matching purposes.
The City of Seattle also adopted an ordinance which
establishes a designation system patterned after the Federal
Income Tax "Checkoff" for presidential elections in order to
finance the city's campaign matching fund account for city
elections. Using the city's Light Department mailings (either a
utility bill itself or an enclosure), it offers the opportunity
to city residents with utility accounts to designate a maximum
amount of $4.00 in a single year to go toward a campaign matching
fund account. The designated monies are to be appropriated from
the general fund and not from utility funds. A framework for
implementation and administration of such a program is set forth
in the ordinance.
In reviewing the above-described ordinances, we express
caution since certain of the provisions have yet to receive
jUdicial scrutiny. It is simply too early for authoritative
appellate court decisions to have been passed upon the validity
of many of the innovative features of these ordinances.
- 17 -
. .
III. VOTING DISCRIMINATION.
1. General principles.
In matters related to voting practices, the United states
Supreme Court has declared invalid any voting practice which
provides minority group members less opportunity than other
members of the electorate to participate in the political process
and to elect candidates of their choice. White v. Reqister, 412
U.S. 755, 765 (1973) . A number of factors are considered in
determining whether voter discrimination is present, including:
( 1) history of past discriminatory conduct; (2) racially
polarized voting; (3) discriminatory electoral mechanisms; (4)
absence of minority office holders; and (5) history of legal
hindrance to voting, such as ability to register, vote and run
for office. Id. at 766-68. Under White, more is required to
make out a claim of voter discrimination than the fact that
minority groups are not represented in proportion to their voting
potential. Id. at 765.
In related matters, the Court has ruled that while at-large
multimember districts are not per se unconstitutional, they
become improper when utilized to cancel out or minimize the
voting strength of minorities. Whitcomb v. Chavis, 403 U.S. 124
(1971); Burns v. Richardson, 384 U.S. 73 (1966); Mahan v. Howell,
410 U.S. 315 (1973) . Where there are districts they should be
apportioned as nearly of equal population as is practicable. The
districts need not be mathematically identical in population so
long as population divergences are based on legitimate
considerations incident to the effectuation of a rational policy.
- 18 -
- --- --
. .
Reynolds v. Sims, 377 U.S. 533, 577 (1964); Gaffney v. Cumminqs,
412 U.S. 735, 744 (1973) .
2. Numbered Posts.
One of the elections changes currently under consideration
by the city Council is the implementation of a numbered post
system. Under such a system, candidates running for office must
run for designated seats and electors must vote on each seat
separately. However, in numerous court decisions interpreting
recent Congressional amendments to the Voting Rights Act of 1965,
numbered posts have been found to enhance minority groups' lack
of access to the political system. While the presence of such a
system does not by itself constitute impermissible racial vote
dilution, it is clearly disfavored by the courts.
In 1982, congress amended Section 2 of the Voting Rights
Act of 1965. It now provides in relevant part:
(a) No voting qualification or
prerequisite to voting or standard, practice,
or procedure shall be imposed or applied by
any state or political SUbdivision in a
manner 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 in contravention of the
guarantees set forth in section
1973b(f) (2) . . . .
(b) A violation of subsection (a) of
this section is established if, based on the
- 19 -
. .
totality of circumstances, it is shown that
the political processes leading to nomination
or election in the state or political
subdivision are not equally open to
participation by members of a class of
citizens protected by subsection (a) of this
section in that its members have less
opportunity than other members of the
electorate to participate in the political
process and to elect representatives of their
choice. . . .
Congress enacted this amendment to the Voting Rights Act in
response to the United states Supreme Court decision in city of
Mobile v. BOlden, 446 U.S. 55 (1980). In that case, the Court
held that in order to establish a violation of section 2 of the
1965 Act, the challenged voting practice or procedure had to
reflect an intent to discriminate. rd. at 60-74..1/ In reaching
this decision, the Court extended the purposeful discrimination
standard that it had enunciated in cases such as Washinqton v.
Davis, 426 U.S. 229 (1976) , and Villaqe of Arlinqton Heiqhts v.
Metropolitan Housinq Development Corp., 429 U. S. 252 (1977) , to
1/ The old section 2 provided that: IINo voting qualification or
prerequisite to voting, or standard, practice, or procedure shall
be imposed or appl ied by any State or political subdivision to
deny or abridge the right of any citizen of the united states to
vote on account of race or color . . . ." 42 U.S.C. Section 1973
(1976) .
- 20 -
. .
racial vote dilution cases. See Note, Recent Development,
Section 2 of the Votinq Riqhts Act: An Approach to the Results
Test, 39 Va. L. Rev. 139, 149-151 (1986) (hereinafter Recent
Development) .21
The congressional amendment specifically rejects the Bolden
intent standard and restores the pre-Bolden "results" standard
established in White v. Regester, 412 U.S. 755, 765-69 (1973) .
As stated in united states v. Marenqo County Comm'n, 731 F.2d
1546, 1563 (11th Cir. 1984) : "Congress wished to eliminate any
intent requirement from section 2, and therefore changed the
terms of [the section] . . . to forbid any practice that 'results
in' discrimination." Accord McMillan v. Escambia County, 748
F.2d 1037, 1041-42 (5th Cir. 1984) (citations omitted).lJ
The senate Report on this amendment listed a number of
factors to be considered in deciding whether an election practice
results in discrimination, including such factors as racially
polarized voting, past discrimination and its lingering effects,
denial of minority group access to a candidate slating process,
11 For an overview of the major Supreme Court decisions on racial
vote dilution prior to the Section 2 amendment, see Recent
Development at 143-51.
dJ For a detailed discussion of the legislative history leading
up to the enactment of the amended version of section 2, see Boyd
& Markman, The 1982 Amendments to the Votinq Riqhts Act: A
Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983) .
- 21 -
. .
and election practices. See s. Rep. No. 417, 97th Cong. , 2d
Sess. 1, 28-29, reprinted in 1982 U.s. Code Congo & Ad. News
177, 206-07. No particular factor is an indispensable element of
a dilution claim. The resolution of such a claim is based on the
IItotality-of-the circumstances". rd. at 28-30, U.S. Code Congo &
Admin. News at 206-08. See Jordan v. city of Greenwood, 599 F.
Supp. 397, 399 (N. D. Miss. 1984). Thus, in analyzing dilution
claims, courts examine each of these factors, but no combination
or lack thereof is conclusive. As the court stated in United
states V. Marengo County Comm'n, 731 F.2d 1546 (11th Cir. 1984):
No formula for aggregating the factors
applies in every case. Some authorities
suggest that a finding of discriminatory
resul t is compelled when the plaintiffs show
racially polarized voting combined with an
absence of minority elected officials.
others argued that discriminatory effects is
irrebutably established when these factors
are combined with a history of discrimination
and present socioeconomic disparities between
the races. Certainly, when the plaintiffs
establish these factors and no other factors
weigh strongly against the plaintiffs' case,
dilution must be found. Id. at 1574
(citations omitted).
One factor which is particular relevant in light of the current
City Council proposal to implement a numbered post system is
factor 3 of the Senate Report:
- 22 -
- - -- -- -- - ---
. .
[T]he extent to which the state or political
subdivision has used unusually large election
districts, majority vote requirements,
anti-single shot provisions, or other voting
practices or procedures that may enhance the
opportunity for discrimination against the
minority group. S. Rep No. 417, 97th Cong.,
2d Sess. 1, 28-29, reprinted in 1982 U.S.
Code Congo & Ad. News 177, 206-07.
An anti-single shot provision is a requirement that when
two or more persons are to be elected for the same office, an
elector has to vote for as many candidates as there are persons
to be elected or that person's ballot will be voided. Such a
provision prohibits minority voters from concentrating their
votes on a single candidate in a multi-candidate field.!! "Where
a minority interest group does not board a full slate of
candidates, the anti-single shot law requires supporters of the
.!I The benefits of single-shot voting have been illustrated as
follows: "Consider [a] town of 600 whites and 400 blacks with an
at-large election to choose four council members. Each voter is
able to cast four votes. Suppose there are eight white
candidates, with the votes of the whites split among them
approximately equally, and one black candidate, with all the
blacks voting for him and no one else. The result is that each
white candidate receives about 300 votes and the black candidate
receives 400 votes. The black has probably won a seat. This
technique . called single-shot voting." u.S. commission on
1S
civil Rights, The Voting Rights Act: Ten Years After 206-07
(1975).
- 23 -
. .
minority group to cast ballots for at least some of the group's
opponents, thereby rendering the minority.s task much more
difficult." Wallace v. House, 515 F.2d 619, 624 (5th Cir. 1975),
vacated! remanded on other qrounds, 425 U.S. 947 (1976). Accord
Dillard v. Crenshaw county, 640 F. Supp. 1347, 1356 (M.D. Ala.
1986) .
A requirement that a candidate run for numbered posts has
been found to have equally adverse effects, increasing the
opportunity for discrimination against minority groups.~ As
stated in RQqers v. Lodqe, 458 U.S. 613, 627 (1982): A numbered
post requirement "enhances the [minority's] lack of access
because it prevents a cohesive political group from concentrating
on a single candidate." Accord McMillan v. Escambia County, 748
F.2d 1037, 1044 (5th Cir. 1984); Dillard v. Crenshaw County, 640
F. Supp. 1347, 1357 (M.D.Ala. 1986).
In McMillan, plaintiffs filed a class action challenging
the at-large system for electing the Board of County
commissioners for Escambia County. The Board was composed of
five members elected for staggered four-year terms. The at-large
system provided that candidates had to run for numbered places
corresponding to the places in which the candidates lived and
~ This principle was again well-illustrated by the United
states commission on civil Rights: lI[I]nstead of having one race
for four positions, there could be four races, each for only one
position. Thus for post no. 1 there might be one black candidate
and one white candidate, with the white winning. The situation
would be the same for each post, or seat---a black candidate
would always face a white in a head-to-head contest and would not
be able to win. There would be no opportunity for single-shot
voting. " U. S. Commission on Civil Rights, The Votinq Riqhts
Act: Ten Years After 207-208 n.19 (1975).
- 24 -
. .
that voters of the entire county had to vote for each post.
Although candidates had to receive a majority of votes cast in
party primaries to win party nominations, the general election
did not have a majority vote requirement. The trial court held,
in part, that this election scheme violated section 2 of the
Voting Rights Act of 1965.
The appellate court affirmed this decision. In reaching
this result, the court examined the evidence in light of the
Senate Report factors. First, the evidence supported the trial
court's conclusion that voting in the county was racially
polarized. 748 F.2d at 1043. Racially polarized voting
generally is the keystone of a voter dilution case. Id.
Further, the county had a history of past discrimination as
reflected in its election practices and blacks' inferior
socioeconomic position in the society. Indeed, the county had
attempted to institutionalize white supremacy in their voting
system. Id. at 1044. Moreover, the state policy behind the
at-large system was tenuous. Id. at 1045. Finally, the court
examined the election practices of the county, one of which was
the requirement of numbered posts. The court compared the
numbered post system to anti-single shot provisions, concluding
that the former can have equally adverse effects. Id. at 1044.
As the court stated:
The district court found that this
requirement had the effect "that blacks are
always pitted in head-on-head races with
white candidates, and that the black
community cannot concentrate its votes in a
- 25 -
large fi'd of candidates." .
Id. at 1044 n.16
(citations omitted).
Based on an examination of all of these factors, the court
concluded that the votes of black citizens were effectively
diluted by this election system. Id. at 1046.
In Dillard, plaintiffs challenged at-large systems to elect
county commissioners in six Alabama counties. Each of these
counties had a significant black population. Five of these
counties had election systems that were similar in significant
regard. Each required that a candidate run at-large.
Additionally, the candidate had to run for a numbered post and
each voter could only vote for one candidate in each post.
Finally, a candidate was required to receive a majority of the
votes to win a party's nomination in the primary, although no
such requirement existed for general elections. No black person
had ever been elected under these system in any of the counties.
In ruling that these systems violated section 2, the trial
court focused on the numbered post system and discussed the
disfavored status of the system by contrasting it with an
at-large system that had no such requirement:
[A] minority might be able to elect one or
more representatives, even in an at-large
system, if the election is by a plurality
without numbered places. For example, a
black candidate could have a fair opportunity
to be elected by a plurality of the vote if
the black voters concentrate their vote
behind one candidate or a limited number of
- 26 -
.. .
cand~dates while the white voters divide
theirs among a number of candidates. Id. at
1353 (citations omitted).
The trial court also emphasized the historical underpinnings of
the numbered post system in the state. The court found that the
requirement of numbered posts had replaced the law banning
single-shot voting and that it sprang from the same motivation,
to dilute black voting strength. Id. at 1356-57. Indeed, the
numbered posts system was a specific tool used by the white
majority to meet the threat of increased black voting ability and
the possibility of black officeholders. rd. As the court
stated: "In adopting the laws, the state reshaped at-large
systems into more secure mechanisms for discrimination." rd. at
1357.
Based on its analysis, the court concluded that the
plaintiffs had established a reasonable probability of prevailing
on their claim. rd. at 1360. See Jones v. city of Lubbock, 727
F.2d 364, 383 (5th Cir. 1984) (numbered posts requirements
"create head-to-head races and promote majority-minority
confrontation"); United states v. Dallas County Comm'n, 739 F.2d
1529, 1536 (11th Cir. 1984) (requirement of numbered posts has
potential effects that are equally adverse to anti-single shot
provision); Jordan v. City of Greenwood, 599 F. Supp. 397, 402
(N.D. Miss. 1984); Comment, The Results Test of Amended section 2
of the Votinq Riqhts Act: An Examination of the Senate Report
Factors, 54 Miss. L.J. 289, 305 (1986) .
The numbered post system is unquestionably a disfavored
election practice. Moreover, the election practices of
- 27 -
... .
California cJ.tJ.es are currently under close scrutiny. The
Southwest Voter Registration project and the Mexican-American
Legal Defense and Education Fund have targeted over 100 cities in
California for possible legal challenges, with the numbered post
system being subjected to particularly close scrutiny. While it
is true that the numbered post system is only one factor that a
court would examine in determining whether a city's election
scheme impermissibly dilutes minority voting strength, extreme
caution should be exercised before the city initiates such a
plan.
RECOMMENDATION
It is respectfully recommended that the ci ty council take
such action as it deems appropriate in response to this staff
Report.
PREPARED BY: Robert M. Myers, City Attorney
Joseph Lawrence, Assistant city Attorney
Laurie Lieberman, Deputy city Attorney
Barry Rosenbaum, Deputy City Attorney
- 28 -