Burbank voter Nick Gutierrez is moving forward with his voting rights lawsuit against the city.
Following the City Council’s surprise move away from approving electoral districts last month, City Attorney Joe McDougall requested an appropriation of $1 million for legal fees to defend against Burbank’s impending California Voting Rights Act lawsuit.
The year’s symposium on districts was forced upon the panel after the city received a notice in August 2022 of a potential violation of the California Voting Rights Act. The letter — sent on behalf of Gutierrez — included a demand that the city change its voting system to a by-district approach.
Because the city elects council members via an at-large method, it is technically in violation of voting rights law. The Council had little choice but to jumpstart the districting process, as doing so protected the city from litigation for a short time. They voted unanimously in January to issue a resolution of intent to change to by-district elections, triggering a 90-day “safe harbor” period to forestall litigation.
The city had staved off litigation for a full year as they investigated the districting process, spending more than $100,000 on legal advice and demography services. Then, in October, the Council voted to scrap those efforts and instead directed staff to investigate a different voting method — cumulative voting, an electoral system in which voters are given the same number of votes as there are candidates on a ballot, distributing the votes in any combination they please.
This shift to cumulative voting essentially invited Gutierrez to move forward with his lawsuit, as state law explicitly empowers minority voters to sue a city that does not adhere to district-based voting on grounds of vote dilution.
At the time, the Council also invited Gutierrez to attend a meeting and give his perspective. Gutierrez has never appeared publicly or directly contacted any member of the Council or city staff.
Since the October meeting, the city received notice that he is moving forward with litigation.
“While the Council gave direction to move into a next phase and invited the plaintiff in to talk, the plaintiff ended up suing, and that puts us in a defensive position,” said McDougall.
After a closed session meeting with the city’s legal team, the Council gave direction to McDougall to take action to defend the city against that lawsuit, drawing public ire that the yearlong districting process was “bogus.”
“The lawsuit happened because all members of Council rejected the recommendation of staff regarding the redistricting process,” said Burbank resident Linda Bessin during the Nov. 7 meeting.
“This lawsuit has taken the decision regarding the redistricting process away from the city and placed it in the hands of the court,” Bessin continued. “If this is what Council always wanted, then our time and effort and money should not have been wasted on a bogus process that was heavily promoted to everyone, and this led residents into thinking that their voices mattered.”
The city’s special counsel on the matter, Marguerite Leoni, has commented on how the court system would consider cumulative voting and ranked choice voting in a CVRA dispute: a topic recently elucidated by the California Supreme Court in the Pico Neighborhood Association v. the city of Santa Monica.
“Those methods of election can be effective in demonstrating the undiluted voting strength of protected class voters,” said Leoni.
According to the state Supreme Court decision, a new electoral system would simply need to remedy the “lack of equal opportunity,” Leoni said.
But according to Leoni, ranked choice voting and cumulative voting are proposed to be implemented in Burbank within an at-large system, which conflicts with state voting law.
“In the event that any one of those systems might be ineffective in the desired goal of providing real opportunity to elect chosen candidates, those systems would still be exposed to litigation under the CVRA,” said Leoni.
But another safeguard for cities undergoing CVRA disputes was defined in the Santa Monica case. The court clarified that plaintiffs must prove voter dilution in order to win their claim. This could prove difficult for Gutierrez, Leoni said.
As the city engages in its legal defense, discussions on a shift in Burbank’s electoral system will be put on hold, said McDougall, the city attorney.
“We really need to take the record as we have it and not move in two different directions, both considering [voting] alternatives and defending,” he said during the Nov. 7 meeting. “So my recommendation is that we engage in our defense against the lawsuit. … It could be resolved short of litigation. In any event, once we’ve resolved the lawsuit, then we can move forward with other options, but the lawsuit may dictate that.”
McDougall said that it is his hope that the CVRA lawsuit would cost less than the appropriated $1 million, though he warned that Santa Monica has spent in excess of $9 million in its voting rights lawsuit.
“That item is still under litigation and will likely be for several more years. Our issues may be more simple and hopefully can be resolved quickly,” said McDougall.
First published in the November 18 print issue of the Burbank Leader.