Voices & Choices

FairVote files amicus brief in Santa Clara voting rights case

FairVote files amicus brief in Santa Clara voting rights case

Santa Clara, California is a very diverse city. It includes substantial communities of South and East Asian Americans and Latino Americans. Yet all that diversity has not been included in the city’s government. Its winner-take-all, at-large numbered post system has kept voices outside the majority shut out of the city council.

This situation recently led to groups representing Asian American voters bringing a lawsuit under the California Voting Rights Act. Santa Clara’s elections were quickly (and correctly) found to violate California law by diluting the votes of Asian American voters. As the court now seeks to find a remedy that will empower voters, FairVote has filed an amicus curiae (“friend of the court”) brief arguing that it should look to multi-winner ranked choice voting for the best solution.

Multi-winner ranked choice voting (the “single transferable vote”) promotes fair representation of voters in legislative bodies. That has been proven in U.S. municipal elections both historically and as recently as 2017. This makes it particularly useful for places with racially polarized voting, where it can prevent the illegal dilution of votes cast in communities of color, something often caused by winner-take-all at-large voting methods.

FairVote has entered the courtroom to argue for fair representation voting several times in the past. Indeed, these voting methods actually have resolved Voting Rights Act cases in over 100 jurisdictions, and FairVote has published a booklet describing their benefits and how to identify when they should be applied in that context. FairVote has also defended the California Voting Rights Act from its opponents in court, in part by describing how the availability of these remedies makes the Act a strong and effective remedial statute, and how its existence makes California a model for the other states in the realm of promoting voting rights.

Fair representation voting is not the only way to remedy such lawsuits - the most common remedy is the use of single-winner districts. Indeed, a wave of California cities have adopted district elections in response to actions brought under the California Voting Rights Act, and representation of people of color in municipal government has expanded greatly as a result.

But districts do not always serve as fully effective remedies, even when often providing some benefits for candidates of color over winner-take-all at-large elections. For instance, FairVote’s brief identifies nine cities that switched to districts to resolve a claim brought under the California Voting Rights Act, and yet where there was not any net increase in representation of people of color.

Districts ordinarily work by decentralizing elections closer to the neighborhood level, rather than citywide, and thereby helping the neighborhoods where residents of color live have their voices heard. That often works, but if a city is very well integrated, it may be impossible to draw a district where voters of color are numerous enough to be heard. It may also fail where communities of color are themselves divided - for instance where Asian Americans may collectively be numerous enough to elect candidates of choice, but where that community encompasses distinct ethnicities that differ significantly in their political interests.

Correspondingly, fair representation systems at times may not provide immediate remedies to minority vote dilution. Factors to consider are the degree of existing organization among communities of color that can support candidates running citywide, the relative voter participation of people of color and white voters, and the role of money in politics for candidates not able to count on existing organized networks.

Santa Clara is a great example of a place where ranked choice voting offers a clear advantage over a single-winner district remedy. Asian Americans have organized groups and a history of running candidates for office. They collectively comprise about 30 percent of the cities eligible voters, yet there is not a single precinct (much less an entire neighborhood) that is majority Asian American by citizen voting age population (CVAP).

Further, the city’s South Asian and East Asian American communities historically have different voting patterns, creating the possibility of votes being split in those communities without a ranked choice ballot. In order to address this, the plaintiffs in the case are recommending abolishing Santa Clara’s separately elected mayor in order to expand the city council to seven seats, enabling it to draw a single district that is just barely more than 50 percent Asian American by CVAP.

To be sure, such a district may be adequate for the election of an Asian American candidate of choice. The effectiveness of remedies is not always black-and-white, and voters of color would certainly have far greater influence in that district than they presently do citywide. We estimate that the Asian American share of voters in presidential election years in Santa Clara is about 22 percent of the electorate citywide, but in that district, it would likely be about 40 percent. That does give the Asian American communities substantial influence, and with a strong candidate recruitment effort and campaign, a candidate promoting the interests of those communities could win the seat.

But when viewed in its full context, FairVote does not see the inclusion of this district as sufficient to serve as a truly effective remedy to vote dilution in Santa Clara, for several reasons. First, success in that district is plausible, but not at all reliable. If it elects its council member in 2018, turnout disparities between Asian Americans and other groups is likely to be even more exaggerated than in presidential election years. Candidate recruitment and campaigning will be challenging, especially since that district contains the residence of incumbent white councilmember Kathy Watanabe, who could seek re-election in the district as a favored incumbent. And different voices within the Asian American community in that district may disagree on important issues, running the risk of vote splitting within the broader community. That split seems all the more possible if districts are only revealed a few weeks before candidate filing for elections that could freeze in inequities for four years.

Second, even if a candidate of choice can be elected in the district, that is far short of fair representation for Santa Clara’s diversity. Our analysis of multi-winner ranked choice voting suggests that Asian American voters would have the power to elect two candidates of choice under that system. Notably, Latino voters would also have the power to elect one, which is highly unlikely in any district remedy. This would provide a far fairer reflection of Santa Clara than a single Asian American candidate of choice. Further, ranked choice voting without districts would mean that every voter from these communities could take part in electing their candidate of choice - the most heavily Asian American district under the plaintiffs’ district map contains only 23 percent of the city’s overall Asian American voters, meaning the other 77 percent of Asian American voters would still lack the power to elect a candidate of choice.

These are the very sorts of problems that ranked choice voting in multi-winner districts can resolve. The lower threshold for election (any candidate earning 14 percent of the vote would win one of the six seats) promotes fair representation of both ethnic and political minority groups. The transferable vote avoids concerns about vote splitting - empowering voters who support candidates who earn less than 14 percent. Every voter in the city would take part in a positive and competitive race and be able to see the many faces of their city reflected in its municipal government.

In the short-term, FairVote has asked the court to use a more modest form of fair representation voting - the single (non-transferable) vote - in 2018 only. That will provide, in the short-term, a remedy of similar value to the parties’ district maps. Unlike implementing a district map, however, it will set the court up to hold further hearings on a more permanent remedy, and set up the city council to be elected under a truly fair and effective remedy in 2020.

Read our full brief, embedded below:


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