SR 05-09-2023 3DFrom:steve bosworth
To:councilmtgitems
Subject:Public comment on agenda item D: Pico Neighborhood Association and Maria Loya v. City of Santa Monica
Date:Tuesday, May 9, 2023 11:50:48 AM
Attachments:23-5-9-PUBLICcommentPICO.docx
EXTERNAL
councilmtgitems@santamonica.gov.
For: Conference with Legal Counsel – Existing Litigation – Gov. Code Section 54956.9(d)(1):Pico Neighborhood Association and Maria Loya v. City of Santa Monica, LASC Case No. BC616804; California Supreme Court Case No. S263972Received: 5/4/2023 3:00:00 AMTarget Meeting: 5/9/2023 5:30 PM
Detail: In February 2023, the Peoples’ Democratic Club of Santa Cruz County voted torecommend the following to the City Council of Santa Cruz: “To adopt the most democraticform of proportional ranked-choice voting (PRCV) to elect the city council and mayor.”
As a member of the PDC, I see that the same recommendation applies to the City Council ofSanta Monica. Our reasons for adopting PRCV under the CVRA are detailed in the attachedletter to Rob Bonta, the Attorney General.
PRCV enables the votes of the members of any minority to be better represented byelectedmembers of their choice. In contrast to about 50% of all the votes cast by citizens currentlybeing needlessly “wasted” in the sense that they do not help to elect any candidate, PRCVguarantees that between 80% to 100% of each of the citizens would most likely see one of theseven members of the council as representing their hopes and concerns accurately.
I would be happy to respond to any invitation to engage in any dialog with theparties in this case.
Stephen Bosworth, Ph.D., 831-332-2707; stevebosworth@hotmail.com; 2120N. Pacific Ave., Space 80; Santa Cruz, 95060.
ITEM.3.D.
May 9, 2023
ITEM.3.D.
May 9, 2023
councilmtgitems@santamonica.gov.
For: Conference with Legal Counsel – Existing Litigation – Gov. Code Section
54956.9(d)(1): Pico Neighborhood Association and Maria Loya v. City of Santa
Monica, LASC Case No. BC 616804; California Supreme Court Case No. S263972
Received: 5/4/2023 3:00:00 AM
Target Meeting: 5/9/2023 5:30 PM
Detail: In February 2023, the Peoples’ Democratic Club of Santa Cruz County voted to
recommend the following to the City Council of Santa Cruz: “To adopt the most democratic
form of proportional ranked-choice voting (PRCV) to elect the city council and mayor.”
As a member of the PDC, the same recommendation applies to the City Council of Santa
Monica. Our reasons for adopting PRCV under the CVRA are detailed below in the following
letter to Rob Bonta, the Attorney General.
PRCV enables the votes of the members of any minority to be better
represented by members of their choice. In contrast to about 50% of all the
votes cast by citizens currently being needlessly “wasted” in the sense that
they do not help to elect any candidate, PRCV guarantees that between 80%
to 100% of each of the citizens would most likely see one of the seven
members of the council as representing their hopes and concerns accurately.
I would be happy to respond to any invitation to engage in any dialog with the
parties in this case.
Stephen Bosworth, Ph.D., 831-332-2707; stevebosworth@hotmail.com; 2120 N.
Pacific Ave., Space 80; Santa Cruz, 95060.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
26 March 2023
TO: Attorney General Rob Bonta
FROM: Stephen Bosworth, Ph.D. et al.
We, the undersigned citizens of Santa Cruz, are greatly disturbed by two
damaging actions taken by the Santa Cruz City Council. We see these ac-
tions as violations of both the California Voting Rights Act (CVRA) and
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Section 34886 of California law. Our allegations are detailed below under
the subtitles Potential Unlawful Actions 1 and 2.
In 2020, the City of Santa Cruz was threatened with a lawsuit under the
California Voting Rights Act by a plaintiff claiming that the votes of mem-
bers of a protected class were being wasted, “diluted,” in the sense that
they were not being counted to elect any member of the council. (“Di-
luted” is the term used by the federal Voting Rights Act (FVRA) and the
CVRA.)
In 2022, the Council’s majority chose to shift from at-large plurality voting
to plurality district voting. This choice needlessly continues to prevent
about 50% of all votes cast from being represented in the council. We are
now working together to prepare the way to require the Santa Cruz City
Council to establish equal voting power for all citizens. We ask that our City
Council voluntarily adopt the most democratic form of at-large PRCV to
elect council members. We are seeking the help of the Attorney General’s
Office to achieve this essential objective [ADDENDUM 2: Proposed Strat-
egy].
Our choice of preferred voting method for future council elections was
assisted by the clarity in your amicus brief to the Supreme Court on the
Santa Monica v. Pico case that “non-district-based remedies” for “vote
dilution” must also be considered. We thank you for that. We saw it as
confirmation of the encouraging elements in the 2014, Jauregui v.
Palmdale Appeal Court’s decision, which construed the CVRA as helping
to establish a constitutional priority to have elections of “integrity”
throughout the state; that is, “to ensure that our electoral system is fair
and open” (p. 17). This is a “statewide concern” (p. 3).
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Consequently, we claim that the dilution of votes cast by members of a
“protected class” must be rectified by using a system capable of equally
representing all voters. We believe that the most democratic form of
proportional ranked-choice voting best addresses this concern.
We base our work on the following elements of the federal Voting Rights Act
(FVRA, 1965) and the CVRA. The FVRA expresses an overriding “statewide
concern” to ensure voting equality for all citizens in each state:
(a) No voting … standard, practice or procedure shall be imposed or
applied … which results in a denial or abridgment of the right of any
citizen of the United States to vote on account of race or color, … as
provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of
circumstances, it is shown that the … elections in the State or political
subdivision are not equally open to participation by members of a class
of citizens protected by subsection (a) 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 (…).
Similarly, we believe that the CVRA ensures voting equality in each city
election by guaranteeing all citizens, including each member of a
“protected class,” an equal opportunity to elect a representative of their
choice:
An at-large 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 (...) (14027).
The intention of these laws is to establish genuinely equal voting power for all
citizens. However, we have largely failed to realize such equality. There have
been many challenges to at-large-plurality elections under the CVRA
because this method usually dilutes about 50% of all votes cast. These
challenges have been inappropriately settled by switching to districts, which
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continues to dilute about 50% of votes. Plurality voting in districts also
structurally wastes about 50% of votes. Post-election reports continue to show
that half of our fellow citizens are prevented from helping to elect a candidate
of their choice [ADDENDUM 1: Plurality Districts].
Potential Unlawful Action 1
Until June 2020, the Santa Cruz Council had elected its seven members at
large as required by the City’s Charter (Section 601). Using traditional plurality
voting, this has usually meant that about 50% of all votes cast have been
unrepresented in the council.
Given that at-large PRCV would guarantee at least 88% of votes would be
represented, citizens requested the Santa Cruz City Council to consider PRCV
as a CVRA-friendly remedy, but the council majority refused to talk with us.
Instead, they agreed to change to plurality district elections, which has shown
continued dilution of 51% of all votes.
The Council did this by signing an agreement with their 2020 plaintiff on May
26, 2022. This agreement promised that, in the future, the Santa Cruz Council
would be elected either from six districts with a mayor elected at large or
from seven districts. However, because these district plans use plurality
voting, they do not give equal opportunity to the members of our protected
classes to elect candidates of their choice as required by the CVRA. For the
same flawed reason, the agreement’s claim that it was being made under
state law Section 34886 “in furtherance of the purposes of the California
Voting Rights Act of 2001” was false, therefore unlawful:
ARTICLE 2 - ELECTION OF LEGISLATIVE B ODY BY OR FROM DISTRICTS IN CITIES
SECTION 34886. Universal Citation: CA Govt Code § 34886 (2016)
Notwithstanding Section 34871 or any other law, the legislative body of a
city may adopt an ordinance that requires the members of the
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legislative body to be elected by district or by district with an elective
mayor, as described in subdivisions (a) and (c) of Section 34871, without
being required to submit the ordinance to the voters for approval. An
ordinance adopted pursuant to this section shall include a declaration
that the change in the method of electing members of the legislative
body is being made in furtherance of the purposes of the California
Voting Rights Act of 2001 (Chapter 1.5--commencing with Section
14025--of Division 14 of the Elections Code). (Amended by Stats. 2016,
Ch. 751, Sec. 1. Effective January 1, 2017.)
Potential Unlawful Action 2
Another error was made by the Santa Cruz Council when it arranged for a
vote on a flawed amendment to the Charter on the June 7, 2022, ballot. The
Council then registered this flawed change to the Charter with the Office of
the Secretary of State.
The wording of this amendment offered the same options as contained in the
above agreement; that is, continuing in the future to use plurality voting to
either elect six councilmembers from districts and a mayor at large, or elect
seven members from seven districts.
Each YES was counted in favor of the first option; each NO was counted in
favor of seven districts. However, because these promised plans do not give
equal opportunity to the members of our protected classes to elect
candidates of their choice, they violate the CVRA, which a new charter cannot
lawfully do. No additional choice to remove City Charter Section 601’s
requirement that all seven councilmembers be elected at large was offered
or mentioned on the June 2022 ballot. No opportunity to vote yes or no on that
question was offered. As a result, we see Section 601 as still lawfully a part of
the Santa Cruz City Charter because citizens were not given an opportunity to
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retain it. Therefore, no majority approved the removal of Section 601 as
required by the CA Constitution Act XI § 3:
(a) For its own government, a county or city may adopt a charter by
majority vote of its electors voting on the question. The charter is
effective when filed with the Secretary of State. A charter may be
amended, revised, or repealed in the same manner (...). The provisions
of a charter are the law of the State and have the force and effect of
legislative enactments.
Request
If the above requirement that the seven City Council members be elected at
large stands, as we contend, the door is open for our City Council to
voluntarily choose to be elected at large by the most democratic version of
proportional ranked-choice voting [ADDEMDUM 2: Proposed Strategy, and
ADDENDUM 3 : EPR details below]. However, we have little expectation that the
Council will do this in their current state of mind. Is there any possibility that
the Attorney General’s Office could help the Council make that decision? We
sincerely hope the Attorney General will help guide the Council in this
direction. Thank you for your consideration.
We look forward to hearing from you.
Stephen Bosworth, Professor
Stevan Leonard, Programmer, Writer
Sandy Brown, City of Santa Cruz Council Member
Joe Thompson, Union Organizer, UCSC Student
Nancy Krusoe, former University Faculty
Tim Fitzmaurice, former Santa Cruz Mayor
Jane Weed, former Santa Cruz Mayor
Ann J. Simonton, Founder, Director Nonprofit Media Watch
John Hall, former University Professor
Hector P. Marin, City of Santa Cruz Council Candidate 2022
Katie Spencer, Community Organizer
Joy Schendledecker, City of Santa Cruz Mayoral Candidate 2022
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Leah Bosworth, Educator
Jacquelyn Griffith, former Educator, 12 years on Santa Cruz City and County
Committees
Ron Pomerantz, former San Jose Firefighter, Community Activist
Barbara Riverwoman, Environmentalist, Educator
Ami Chen Mills, ED of Sustainable Systems Research Foundation
Reggie Meisler, Community Activist, Software Engineer
Michael Levy, Musician, Music Teacher
ADDENDUM 1: Plurality Districts
We blame past failures to ensure genuinely equal voting power to all citizens
on the traditional and dominant use of plurality voting in the U.S.
Understandably, plurality voting was and is used out of habit, on the false
assumption that this is the only way to vote, from ignorance of the
proportional alternatives, and/or because powerful groups appreciate the
fact that their power depends on continuing to use plurality voting.
A largely unknown fact is that plurality voting usually and needlessly prevents
about 50% of the voters from being able to elect a representative of their
choice. Unfortunately, this 50% waste is taken for granted by most people.
Even when they see that 50% are not represented, they may mistakenly
assume it is an unavoidable part of our belief in “majority rule--of course
some candidates must lose.”
Consequently, many people resist change, even when more proportional
remedies are available and expressly requested. This is illustrated by the
consistent refusal of the 2020-2022 and current majorities in the Santa Cruz
City Council to talk to proponents of PRCV, even though they were repeatedly
told that its use would guarantee representation of at least 88% of voters.
ADDENDUM 2: Proposed Strategy
We have outlined how adopting PRCV would greatly reduce the amount of
vote dilution that continues to plague Santa Cruz. It would reduce it from 50%
to 12%. Furthermore, Stephen Bosworth, Ph.D. and his co-authors Stevan
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Leonard and Anders Corr, Ph.D. have published an article entitled “Legislatures
Elected by Evaluative Proportional Representation: An Algorithm,” detailing a
greatly improved version of PRCV that reduces this dilution to 0%:
https://www.jpolrisk.com/legislatures-elected-by-evaluative-proportional-
representation-epr-an-algorithm-v3/. Evaluative proportional
representation (EPR) is described in some detail in ADDENDUM 3: EPR
Described. We have reason to believe that the only way the FVRA and CVRA
can be fully satisfied when enforcing “equal voting power” is to implement
EPR.
We illustrate the extra benefits of EPR by using the seven-member council of
Santa Cruz. The fact that EPR is democratically superior to ordinary PRCV is
illustrated by the different qualities and quantities of representation each
offers to all citizens when electing a council. PRCV would guarantee that 88%
of all voters are represented by a member they preferred. EPR, however,
guarantees that 100% of all voters are likely to see one elected member
represent their hopes and concerns accurately: the member who received
their highest available grade regarding suitability for office (Excellent, Very
Good, Good, or Acceptable).
The quantitative superiority of representation that EPR guarantees also offers
the most demanding empirical benchmark for determining the exact amount
of vote dilution that has occurred in any election. Simply examining a post-
election report reveals the number of all votes cast that did not help elect any
candidate. Those are wasted votes. The post-election report for a seven-
member council elected at large by ordinary PRCV, as used in Albany,
California, would reveal that about 12% were diluted vs. 0% for EPR. The 2018 to
2020 Santa Cruz Council was, in fact, elected by 46% of all the plurality at-
large votes cast. This means that 54% were diluted.
Consequently, any plaintiff using the CVRA to challenge their city council’s
election system for needlessly diluting votes must start by studying a recent
post-election report. These reports may reveal many votes were needlessly
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wasted because they did not help elect any of the winners. In this event, the
plaintiff may request that the council change their current way of being
elected to the most democratic form of PRCV, which is EPR. The plaintiff will do
this knowing that the votes of the plaintiff’s “protected class” will no longer be
diluted.
If the council refuses this request, the plaintiff can then sue the council. It is
hard to imagine a judge who will not then impose at-large EPR on the council.
Of course, this assumes that the judge agrees with our claim that EPR also
provides an irrefutable benchmark to measure the percentage of votes
diluted by any election.
Two possible objections to a plaintiff relying on our EPR–benchmark strategy
when seeking to remove the vote dilution suffered by the plaintiff’s protected
class are:
1. The CVRA does not explicitly require a plaintiff to “show that racially
polarized voting occurs in elections for members of the governing body
(…)” (14028 b). However, its many references to such polarization might
easily suggest that this proof must be presented before any
consideration of remedies can take place. Our suggested benchmark
proof of vote dilution is not able to do this. No such empirical method is
available. Past attempts to show such polarized voting by plaintiffs were
based on studies of ballots from precincts with enough residents
perceived as “of color.” This is insulting, racist, and not relevantly
informative.
In our view, the availability of the EPR-benchmark test removes any need for
the court to seek such an impossible demonstration of the presence of
“racially polarized voting.” In the face of these difficulties and lack of clarity,
we hope that future plaintiffs and courts will prefer to use the simple, exact,
and objective evidence of vote dilution provided by EPR’s benchmark
measures.
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2. Also, some words in the CVRA might cause opposition to our suggested
strategy. For example, the CVRA does not mention, nor does it ban, the
use of proportional voting remedies, whereas district-based remedies
are not mandated but are mentioned as a possible remedy. In the past,
both plaintiffs and courts have usually sought “remedies” only by
identifying a part of town that appeared to have enough people of color
voting to possibly influence who will be elected from that district.
Presumably, such a district did occasionally give members of a protected
class more voting power than they had, but what about those members who
do not live in that district? In contrast, everyone would have an equal vote if
their council were elected by at-large EPR.
We see the benchmarks provided by PRCV and EPR as welcome additions to
the current “totality of circumstances” within which disputes about diluted
votes can be resolved. The EPR benchmark most clearly determines the extent
to which any city does or does not violate the CVRA. These determinations
should greatly help Californians address the “statewide concern” to ensure
“fair and open” elections with “integrity.” [See details in ADDENDUM 3 : EPR
details below]
ADDENDUM 3: EPR details
Description of evaluative proportional representation
Stephen Bosworth, Ph.D.; stevebosworth@hotmail.com; 831-332-2704.
My co-authors and I see the best remedy for existing vote dilution when
electing a legislative body is to implement EPR, the clearly improved iteration
of PRCV. [See ADDENDUM 2: Strategy]. Evaluative proportional representation
(EPR)is the most democratic voting method for electing legislative bodies.
It was published in 2020 (https://www.jpolrisk.com/legislatures-elected-by-
evaluative-proportional-representation-epr-an-algorithm-v3/).
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EPR guarantees that 100% of all the citizens’ votes will be equally represented
in a city council. PRCV has been used in many places around the world and
would ensure that about 88% of citizens’ votes are represented in the seven-
member council rather than 100% when using EPR.
With EPR, each citizen is invited to grade any number of candidates running at
large in the city as Excellent, Very Good, Good, Acceptable, Poor, or
Rejected/Unknown. Briefly described, in an at-large-EPR election of seven-
member city council, each citizen’s ballot is counted to guarantee they are
most likely to see one of the elected councilmembers as representing their
hopes and concerns accurately; that is the member who received their
highest available grade.
Each citizen’s ballot equally increases the voting power of one of the
members in a seven-member council as follows:
Your vote will increase the weighted vote in the council of the member to
whom you awarded your highest grade, unless that candidate did not receive
one of the seven largest totals. In that event, your vote is transferred to the
remaining highest graded candidate on your ballot. If you did not grade such
a winning candidate as at least Acceptable, your ballot becomes your proxy
vote. Your proxy vote (if you choose) would be publicly transferred to the
weighted vote of the elected candidate judged to be the most suitable for
office by the candidate to whom you awarded your highest grade. In this way,
every citizen’s vote continues to count equally in the weighted vote of one of
the councilmembers.
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From:Cris Gutierrez
To:councilmtgitems; Gleam Davis; Lana Negrete; Oscar de la Torre; Phil Brock; Caroline Torosis; Jesse Zwick;
Christine Parra
Subject:Agenda Item 3D: Pico Neighborhood Association and Maria Loya v. City of Santa Monica
Date:Tuesday, May 9, 2023 6:17:58 AM
EXTERNAL
Dear Mayor Davis and City Council Members:
I write to support wholeheartedly the City defending against the claims of Pico Neighborhood
Association and Maria Loya v. City of Santa Monica. Proceeding on the current path that the
City has taken to defend against the suit is imperative.
I trust that Council Member de la Torre is recusing himself from any discussion or
involvement in council deliberations about the matter given his spouse’s role in the lawsuit.
The integrity of the council, its members and our City requires no less.
Thank you.
With respect,
Ms. Christine Gutierrez
Santa Monica Resident
ITEM.3.D.
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ITEM.3.D.
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