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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 -