Election reform?

Will there ever be “election reform” in Alameda?

If you’re talking about ranked‑choice voting, the answer is (probably), not any time soon.

But if you’re talking about district elections, the answer is a qualified maybe – but not for the right reason.

This assessment reflects, in part, a political prognostication.  But it also stems from our sense that, in Alameda, election reform of whatever sort is a solution in search of a problem.

Although RCV supporters can make a policy‑based argument for using their favored electoral method in any jurisdiction, we know of no evidence suggesting that RCV would have changed the results of any recent election in Alameda.  Indeed, even RCV supporters concede that the top two vote-getters in the 2022 Council election “may well have been the same” if RCV had been used.

Likewise, it is difficult to conclude that the current system impairs the ability of any “protected class” – i.e., racial or ethnic minority group – in Alameda to elect candidates of its choice or to influence the outcome of an election.  Indeed, the Council presently includes two members with Asian‑Pacific Island heritage and another with Hispanic heritage.

Nevertheless, at the April 2 Council meeting, Mayor Marilyn Ezzy Ashcraft appointed a two‑person subcommittee, consisting of Council members Tracy Jensen and Malia Vella, to “study” issues relating to election reform.  But not all of them:  District elections are part of the subcommittee’s remit, but RCV is not.

As we shall see, it is the presence on the subcommittee of Ms. Vella, who will be termed out in November, that raises the odds in favor of district elections.

The Merry‑Go‑Round previously has written about RCV, but two RCV supporters – Irene Dieter and Paul Beusterien – have done a more thorough job of explaining its mechanics and advantages, and the Alameda League of Women Voters posted its own endorsement of RCV on its website.

At the April 2 meeting, the Council members attempted to justify the exclusion of RCV from the topics to be considered by the subcommittee on the grounds that the public does not support it.  They pointed to the disapproval percentage in a poll taken in 2020 and to the failure of RCV supporters to obtain enough signatures to place an initiative on the ballot.

Both these reasons strike us as rather flimsy.  The “poll” was a voluntary survey in which fewer than 50 Alamedans took part.  And the failure of the signature campaign isn’t surprising:  You try to explain how RCV works to someone hurrying out of Safeway with a cart full of groceries.

RCV, however, appears dead for now.  So today our focus will be on district elections.

We’ll start with the law.

Under certain circumstances, the California Voting Rights Act requires a city to move from at‑large elections, where the Council members are elected in a city‑wide vote, to an alternative electoral scheme.  The alternative usually offered is district elections, where the city is divided into districts, each of which elects its own representative.

The California Supreme Court recently held that, to prove a violation of the CVRA, the plaintiff must show both “racially polarized voting” and “voter dilution.”  The first element requires proof that the protected class members vote as a “politically cohesive unit” and that the majority votes in a bloc sufficient to defeat the protected class’s preferred candidate.  The second requires proof that, under an alternative electoral system, “the protected class would have the potential, on its own or with the help of crossover voters, to elect its preferred candidate.”

According to the Supreme Court, resolving a CVRA claim demands a “searching evaluation of the totality of the facts and circumstances, including the characteristics of the specific locality, its electoral history and ‘an intensely local appraisal of the design and impact’ of the contested electoral mechanisms as well as the design and impact of the potential alternative electoral system.”

Inevitably, this evaluation will require statistical analysis and expert testimony.  We’re incapable of the former, and since no CVRA case against the City of Alameda has gone to court (or even been filed), there is no evidentiary record on the latter for us to evaluate.

Notwithstanding these caveats, this is not a plaintiff’s case we’d be eager to take to trial against the City of Alameda.

For one thing, we find it hard to believe that any “protected class” in Alameda votes as a “politically cohesive unit.”  (Indeed, we regard the proposition as a bit offensive.)  If it was true, please tell us who the “Black candidate” for Council was in 2022?  No Black man or woman was on the ballot, and we know of no reason why Blacks, as a group, would give their votes to one particular candidate over the others who were running in that election.  By the same token, we know of no evidence that white Alamedans vote as a “bloc” sufficient to defeat a non‑white candidate.  If that was true, how come Marie Gilmore and Trish Herrera Spencer were both elected Mayor?

Similarly, we find it hard to believe that district elections would give any minority group a better chance of electing its “preferred candidate” than it has now.  Alameda’s largest ethnic minority group – Asians – constitutes 31 percent of the population, but they are spread across the city.  (According to the 2023‑31 Housing Element, Asian residents are the “predominant population” only on parts of Bay Farm Island and in the Woodstock neighborhood on the West End.  Check out the map below.)  Even if we treat Asians as a “politically cohesive” group, just try drawing a district in which they’d be able, even with crossover votes, to elect an “Asian candidate.”  And, of course, the current Council, elected under the at‑large system, has a Filipino and a Filipana member (who, if not strictly Asian, can be considered part of the broader “API” community).

Now let’s shift from law to policy.  Even if we’re right that a system of district elections isn’t legally required in Alameda, should it nonetheless be adopted as a matter of policy?

The comment letter submitted by the Alameda Citizens’ Task Force before the April 2 meeting laid out the policy case succinctly:

Studies across the nation show that district elections increase the number of candidates running, increase diversity of candidates, and reduce costs, as campaigns take place over a smaller geographic area that is easier and cheaper to canvas. District elections also increase and improve representation in local, geographically specific sections of the city. Areas, especially lower‑income areas, have a much greater chance to have their interests represented, enhanced, and protected. In addition, candidates and representatives will be more accessible and responsive if they live closer to their constituents, and district elections will bring them closer to a wider swatch of the residents and electorate than at large elections.

We confess that we’re always a little put off by arguments that begin with “studies show . . .”  They remind us too much of the way in which former Councilman John Knox White used to try to disguise his political opinions by claiming that he was simply stating universally known facts.  In any event, regardless of what “studies across the nation” may show, we’re not persuaded that any of the points made by A.C.T. justifies moving to district elections in Alameda.

The first point – that district elections would increase the number and diversity of candidates – is persuasive only if Alameda is home to a stable of prospective Council members, especially people of color, who are eager for the chance to run for office but are reluctant now to enter the fray.  But who are those people?  Personally, we don’t know any of them.  (And anyone who has watched a five‑hour Council meeting can well understand the reason for the reluctance.)

Fundamentally, the flaw in this argument is that it assumes that the high cost of campaigning is what keeps candidates on the sidelines.  Maybe so in larger cities – but in Alameda?  To be sure, putting up lawn signs and sending mailers will cost less if these activities need to cover only a district rather than the entire city.  But these methods aren’t the only, or the most effective, way to campaign in this city.  Political veterans will tell you that knocking on doors still works the best – as it did for candidates as different as Doug DeHaan and Tony Daysog.  True, there will be fewer doors to knock on if Alameda went to district elections, but that may mean nothing more than that the candidates’ feet don’t get quite so sore.

Moreover, it remains an open question whether a system of district elections would diminish, or magnify, the influence of well-funded political organizations.  One could very well argue, for example, that such a system would enable the firefighters’ union and its allies to concentrate their efforts on a couple of districts in order to achieve a pro‑labor Council majority.  Imagine that the unions were able to pour the money they spent on Jim Oddie’s campaign in 2022 into just one district rather than spread it throughout the city.  With fewer voters to persuade, the cash might have bought an outcome more to their liking. (Somehow, we doubt that the mayor’s subcommittee, consisting of two Council members who had been endorsed by the firefighters’ union, will address this issue.)

The second point – that district elections would “increase and improve representation in local, geographically specific sections of the city” – is persuasive only if certain issues animate voters in one particular area of the city but not elsewhere.  But is this true in Alameda?  Pick a topic that has occupied Council’s attention in recent years and you’re likely to find it is a matter of city-wide concern.  It is not only voters in the West End who care about housing.  Nor is it only voters in the East End who care about transportation.  And even if one can find an issue that may be deemed more important in one part of town than another, we know of no evidence that the Council elected under the current at‑large system has ignored it.

Moreover, even if one could tie issues to locations, drawing district lines would be a nightmare.  For example, A.C.T.’s letter suggests that lower‑income households would benefit from a system that included a district encompassing “lower‑income areas.”  Maybe such a district could be created in cities with discrete pockets of poverty, but Alameda isn’t one of them.  Median income varies across the city (according to the 2023‑31 Housing Element, it is “generally lower in west Alameda than in east Alameda”), and the areas in which low‑income households predominate are few and scattered across the island.  (Check out the map below).  Joining them together in one district would take quite a bit of – what’s the word? – gerrymandering.

Finally, we simply don’t buy the third argument – that district elections would make Council members “more accessible and responsive” to their constituents.  In our experience, accessibility and responsiveness are individual characteristics unrelated to geography.  We’ll name no names, but we can tell you that one sitting Council member always responds to our emails and another seldom does.  (Maybe she just doesn’t like what we’ve written about her.)  We find it difficult to believe that a Council member who routinely blows off emails or calls from her constituents suddenly will become all ears if she learns that the emailer or caller resides in her district.

Having made the case that district elections are neither legally required nor especially beneficial for Alameda, what makes us think that the current Council might vote to move to such a system?

The answer lies in the provisions of the CVRA and the predilections of our local politicians.

To give plaintiffs’ attorneys a financial incentive to bring a CVRA lawsuit, the drafters inserted a provision requiring a city, if it lost a case challenging an at‑large electoral system, to pay the other side’s attorneys’ fees.  This provision resulted in some large fee awards, topped by a $4.6 million award against the City of Palmdale in 2012.  Naturally, local governments started running scared, and in 2015 the Legislature amended the statute to create what its proponents called a “safe harbor”:  if a plaintiffs’ attorney submits a letter demanding a change to an at‑large electoral system, and the city or other local agency agrees to make the change, the attorneys’ fee award is capped at $30,000.

There is a word that describes this kind of arrangement, but we don’t practice criminal law.  As the San Francisco Chronicle recently reported, however, it has produced two primary effects.  First, it has made certain plaintiffs’ lawyers, especially a southern California attorney named Kevin Shenkman, very rich.  Second, it has induced a plethora of local governments to move “voluntarily” from at‑large systems to district elections.  Local officials “have basically stopped fighting back,” the Chronicle reported.  Instead, as soon as the agency receives a demand letter,

local officials usually agree to change their election rules and pay the lawyer $30,000.  They do it even if the letters contain factual mistakes, like identifying Latinos as whites and vice versa, because the alternative is to get sued. So the merits of these cases rarely get debated or scrutinized.

We know of no legislative body less willing to fight even frivolous claims than the Alameda City Council.  Most clients want answers to two questions:  Will we win?  And, what will we have to pay if we lose?  Our local politicians appear to focus only on the second question.  Agree to move to a system of district elections and pay Shenkman (or his ilk) $30,000?  Or hire an election‑law specialist and defend the current system in court?  For our Council members, that’s an easy choice.

Lest anyone think we’re being unduly cynical, consider the comments made by Ms. Vella at the April 2 meeting.  She didn’t even want to wait for a demand letter.  Instead, she urged Council to act now to get ready to move to district elections.  Her “preference,” she said, “is rather than waiting to get sued or waiting for the inevitable that we actually find time, make time to have a conversation as a community, specifically around what district elections in Alameda [would] look like.”  Later, she was even more emphatic (albeit less coherent):

So I do think this is an eventuality. If we want to bury our head and say somebody can sue us and then we can eventually move there or when it comes, I just don’t think that it’s prudent to wait until you’re required to do something when you know you’re going to be required to do it.

Ms. Vella is one of the two Council members appointed by Mayor Ashcraft to “study” electoral reform, including district elections.  Anyone want to bet what her recommendation will be?  And if she happens to mention the $4.6 million fee award against the City of Palmdale, she’s likely to get a majority of her litigation‑averse colleagues to go along.  It is for this reason that we can’t totally discount the possibility that, unlike RCV, district elections may yet come to pass in Alameda, law and policy notwithstanding.