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HomeMy WebLinkAboutMAY 11, 2021 WORKSHOP MINUTES AN1A'Et"! sent '.,. • 194-s81:,QG4 e� Of OUR NA'fl V VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia May 11, 2021 Mayor Dyer called to order the CITY COUNCIL'S BRIEFING in the Virginia Beach Convention Center, Suite 5, Tuesday, May 11, 2021, at 3:00 P.M. Council Members Present: Michael F. Berlucchi, Mayor Robert M. Dyer, Barbara M. Henley, Louis R. Jones, John D. Moss, Guy K. Tower, Rosemary Wilson, Vice Mayor James L. Wood and Sabrina D. Wooten Council Members Absent: Jessica P.Abbott—Arrived at 3:01 P.M Aaron Rouse —Arrived at 3:05 P.M CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM 3:00 P.M. Mayor Dyer welcomed Christopher S.Boynton,Deputy City Attorney. Mr. Boynton expressed his appreciation to City Council for their continued support. St I 4.4 Potential Changes to City's Election System CHRISTOPHER S.BOYNTON DEPUTY CITY ATTORNEY VIRGINIA BEACH CITY COUNCIL WORKSHOP MAY 11,2021 Here is the Outline for today's presentation: Outline History • Current Election System • Holloway Case History General Assembly Action Holloway Opinion & Order Options for Council Communication Plan Next Steps 2 May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) The next two(2)slides provide a History of the City's voting system: History 1963 Modern City of Virginia Beach created by merger Post-merger,City's election system had 7 boroughs Six magisterial districts of Princess Anne County each elected one member by and from the district Former City of Virginia Beach became single district with five members elected by and from the district 1967 Dusch v. Davis SCOTUS case Resulted in 7-4 system that became foundational framework for current system Seven members reside in each of the seven districts;all seven elected at-large ("residence districts") Four members elected by and from the city at-large 1988 City adopted at-large election of mayor Previously chosen by City Council members History 1990 Mayor's Commission recommended seven districts of equal population with one Council member elected from and by the voters of each district("wards") (4 at-large, 11 total Council members) 1994 Referendum passed supporting equal population of districts and implementation of seven wards - City Council passed resolution asking General Assembly to change City Charter to require equal population and implement wards 1995 General Assembly granted equal population requirement for residence districts but declined to implement wards Directed City to conduct another referendum in 1996 1996 Second referendum supported residence districts over wards 1997 U.S.District Court ruled City's election system did not violate§2 of VRA 2008 Local elections moved from May to November May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) Here is an overview of the Current Election System: Current Election System • Existed in current form since 1996 (substantially same since 1967) • Governed by City Charter§3.01 (enacted by General Assembly) 11 members 4 members(Ind mayor)elected at large(may reside anywhere in city) 7 members elected at large(must reside in one of 7 districts) Residence districts of approximately equal population • District boundaries adjusted after each decennial census • School Board elected using same method (City Charter§16.04) Chair elected by members of School Board, not public Chair does not have to be an at large member Here are Criticisms of Current Election System: Criticisms of Current Election System Historically, a primary critique:At-large election of all 11 members dilutes votes of minority groups Majority gets to elect all 11 members of Council Example If Virginia Beach had 100 voters 70 white,20 Black,5 Asian, 5 Hispanic If voting was racially polarized,candidates supported by white majority would always win all 11 seats May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) The next two(2)slides provide examples of At Large and Ward election systems: At Large All voters Elect All Council members • • * eel, imer. lop IS • • • Ward System Voting Council Districts Voters in Each Ward Elect Their Representatives Individual Council Representative • • I • • May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) Here is an overview of Response to Criticism of System: Response to Criticism of System Historically- not possible to draw a majority-minority district for a single minority in Virginia Beach Virginia Beach is one of most racially integrated(least segregated)larger cities in America Minority communities are dispersed throughout city Not feasible through 2010 redistricting process to draw a district in which a single minority would constitute a majority in that district Virginia Beach minority communities are not politically cohesive Not accurate to say majority of Black,Asian and Hispanic voters prefer same candidates Combining minority groups into districts would not advance candidates preferred by single minority Plaintiffs in Holloway case assert that Black,Asian and Hispanic voters in Virginia Beach are politically cohesive and that a combined minority-majority map would address vote dilution The City is ranked as one of America's Least Segregated Cities: America's Least Segregated Cities 7. Source:U.S.Census Bureau,White to Non-White Racial Dissimilarity Index IRACEDISPARITYL retrieved from FRED,Federal Reserve Bank of St.Louis; https://fred.stkwisfed.org/series/RACEDISPARIT\,August 10,2020 via CityObservatory.org. May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) Here is an overview of Recent Developments Affecting the City's Election System: Recent Developments Affecting the City's Election System Holloway et al. v. City of Virginia Beach Opinion & Order Case filed in United States District Court in 2017 Trial October 6-14,2020 Court's Opinion March 31, 2021 2021 Changes to Virginia Law HB2198 HB1890/SB1395 Here is an overview of the Holloway v. City of Virginia Beach trial: Holloway v. City of Virginia Beach Plaintiffs Latasha Holloway and Georgia Allen Now represented by Campaign Legal Center,a D.C.public interest law firm Key allegation—City's at-large election system violates Section 2 of federal Voting Rights Act Dilutes minority voting strength Prevents a combined group of Black,Hispanic and Asian minority groups from electing candidates of their choice("coalition"claim) City disputes facts alleged and legal assertions Bench trial October 6-14,2020 May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) The next two (2)slides provide an overview of recent Bills adopted by the General Assembly: Virginia House Bill 2198 Adopted by 2021 Virginia General Assembly Notwithstanding any other provision of law, general or special, in a locality that imposes district-based or ward- based residency requirements for members of the governing body, the member elected from each district or ward shall be elected by the qualified voters of that district or ward and not by the locality at large. Also applicable to School Boards Virginia Voting Rights Act (HB1890 & SB1395) Adopted by 2021 Virginia General Assembly An at-large method of election, including one that combines at-large elections with district-or ward-based elections, shall not be imposed or applied by the governing body of any locality in a manner that impairs the ability of members of a protected class, as defined in § 24.2-125, to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgement of the rights of voters who are members of a protected class. Establishes pre-clearance process with State Attorney General Also applicable to School Boards May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) Here is the Combined Effect of 2021 General Assembly Actions: Combined Effect of 2021 General Assembly Actions Even without Holloway case... Current system must change for 2022 election 7 residence districts become wards without further action by General Assembly Citizens will no longer elect all 11 City Council representatives Vote on single representative for their ward and at large seats including Mayor 3 at large districts under current system subject to potential later challenge in state court even if City prevails in appeal The District Court found the City's election system is unlawful: Holloway v. City of Virginia Beach District Court's Opinion and Order(March 31, 2021)found that City's election system violates Section 2 and is unlawful: By a preponderance of the evidence, Plaintiffs have demonstrated that the at-large system of elections for the Virginia Beach City Council denies Hispanics,African Americans,and Asians equal access to the electoral and political process, in contravention of Section 2 of the Voting Rights Act. Prohibits further elections under current system Court to determine appropriate remedy in future phase of litigation Court to award attorneys'fees and costs to Plaintiffs(subject to later determination of amount) May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) Here is a summary of the Holloway Case Status: Holloway Case Status District court has thrown out current election system Plaintiffs preparing petition itemizing attorneys'fees and litigation costs per court's order Seeking at least $3.88 million City and Plaintiffs preparing for future hearings on remedy phase City has filed notice of appeal to preserve appellate option Here are the Holloway Case Appellate Issues: Holloway Case Appellate Issues Whether minority groups may be Other appellate considerations combined to state claim under Section 2 • Appellate outcomes involve high as a matter of law level of uncertainty; no outcome can U.S.Supreme Court has not ruled on viability of"coalition"claims be reliably predicted Fourth Circuit has suggested,but not • Expensive and time consuming to formally ruled,that it did not approve of reach final result even if favorable "coalition"claims • Next general City Council election is Other circuits are split November 2022;Candidates need to Whether those minority groups in know system and districts early in Virginia Beach tend to support the same 2022 candidates as a matter of factual proof Standing,mootness and ripeness of Plaintiffs'claims May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) This chart provides an example of Possible Remedies for Section 2 Violation: Possible Remedies for Section 2 Violation Change some or all at-large Council positions to ward or super ward seats. Residence districts function as at-large positions. ResidencL Ward Super Wart. Minority populations can District Larger geographical area represent a greater within city that overlaps proportion of a ward than two or more wards entire city;therefore, Each candidate must Each candidate Each candidate greater ability to elect reside within the must reside within must reside within preferred candidate. district geographical boundary geographical Plaintiffs:remedial plan of district they serve boundary of district should create at least they serve two districts in which Elected by voters of Elected solely by Elected solely by minority groups could the entire city registered voters registered voters elect preferred residing within that residing within that candidates('opportunity distnds')- district district Here is an overview of the Settlement Proposal: Note:Any settlement must be reviewed Settlement Proposal and approved by the district court, which will have authority over election system for at least 10 years New 7-3-1 Election System 7 members,1 residing in each of 7 districts(wards),elected only by voters residing in each ward 3 members,1 residing in each of 3 super wards,elected only by voters residing in each super ward 1 mayor,elected at-large by all registered voters within the city At least 3 of 10 districts drawn to create minority opportunity districts Current discussion focuses on 2 of 7 districts and 1 of 3 super ward Parties must agree on joint plan(maps)or settlement fails Plaintiffs'attorneys'fees and costs reduced to$1.6M Pay within 11 days after court approval of consent decree and joint maps Plaintiffs claim$3.88M fees and costs to date,additional amounts accruing through remedial phase and appeal if settlement effort unsuccessful City retains right to appeal if settlement process not successfully concluded by July 15, 2021 May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) The next two (2)slides provide Concept Maps of a Ward System: IP Nee irgir is Beach it. 7 Wards kINPViU1 Concept Map i t s A . Y` + - Note This maps meant as «.A fellbo* ', o conceptual illustration of ;� r seven wards and does not necessarily reflect intended -". district lines al Virginia Beach N.'`: r 3 Super Wards z, r: � Concept Map • fk 1. • X:"'•., eake ti.r•' � � ,- .___ \ .. *s- +k Note:This map is meantas a conceptual ! , t illustration of three super wards and does not a. R necessarily reflect intended district lines. t_ 2] May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) Here is Joint Plan (Maps)Process: Joint Plan (Maps) Process Initial settlement concept: Current settlement concept: wait for 2020 Census data(fall Draw final maps using 2015-19 2021)before drawing final maps American Community Survey data Rationale:2020 Census data is most accurate data and any maps must be Resolution:Plaintiffs agree to be bound adjusted using that data to 7-3-1 system using final maps drawn Challenge:Case is unresolved through using ACS 2015-19 data the fall,imperiling appeal timeline if Solves appellate timeline problem by settlement fails allowing parties to reach finality on system by July 15,2021 Plaintiffs assert that only technical population and precinct boundary tweaks will be needed after receipt of 2020 Census data;City expert agrees T3 Settlement Proposal re: Appeal Appeal stayed through July 15, 2021 as parties and court consider settlement. Stay is lifted if: Council votes not to approve settlement on June 15, 2021 Parties cannot agree on joint proposed district maps for 7-3-1 plan Court does not accept 7-3-1 plan/maps on or before July 15, 2021 Plaintiffs agree to expedite City's appeal if court has not approved proposed consent decree and joint maps on or before July 15, 2021 Note:Any settlement must be reviewed and approved by the district court 24 May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) The next two (2)slides provide settlement Options: Options Reject Settlement/Appeal Reject Settlement/No Appeal If City prevails(and without further changes Court likely to implement 10-1 ward system by General Assembly): Plaintiffs requested 7 members • - one residing in each of seven wards 10 representatives elected only by registered voters residing in • one residing in each of 10 wards each ward Residence districts no longer viable due to elected only by the registered voters HB2198 residing in each ward 4 members,including mayor • Remedy would likely require at least 2 of may reside anywhere in city 10 ward districts be minority opportunity elected at large by all registered voters in city districts Remaining at-large districts subject to Mayor could still reside anywhere in the possible future challenge under Virginia City and would be elected at-large Voting Rights Act(HB1890/SB1395) Note:District court likely to implement 10-1 ward system while appeal is on-going zs Options Reject Settlement&Appeal Approve Settlement Pros • Pros 7-3-1 system allows each citizen to vote for three council members Defend principle that City's current election system does not violate VRA Section 2 Resolves Voting Right Act Section 2 concerns as well as state law issues No ongoing federal court involvement in City's Provides certainty by July 15,2021 election system Saves at least$2.3 million,plus costs of Cons appeal for(potentially)both parties District court likely to implement 10-1 system Cons during appeal(can seek stay of remedy) - No appellate court determination of Costly/time consuming;Council elections in 2022 whether district court was correct Uncertain outcome Ongoing federal court involvement in Best:7 ward,4 at-large system with potential City's e l ection system for future litigation regarding at-large seats Still potentially subject to state AG and subject to state AG preclearance preclearance Worst:10-1 system remains in place, significantly higher attorneys'fees and costs 15 May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) Here is the Impact on School Board Elections: Impact on School Board Elections School Board is not a party in Holloway case Ruling refers only to City Council elections By City Charter, School Board members are elected in same manner and according to same schedule as Council members HB2198 changes School Board's residence districts to wards Most likely result: System adopted by district court will apply to School Board Ambiguity as to 11th School Board member School Board has 7 district and 4 at large members School Board chair is selected by Board,not by the public Charter change likely required after new City Council system is determined Here is the proposed Public Information and Input schedule: Public Information and Input Council Goal: Use variety of City channels to disseminate information and provide residents with opportunities to provide feedback. In Person Digital/Media/Virtual Public Briefings - Virtual Town Hall May 11 Council Chamber • VBGov.com—headlines, update case June 1 Council Chamber page on site Other:Time and Place TBD • City Page Council Townhalls/Community Meetings • City Manager Update As determined or requested by • Direct Mailing Councilmembers • Media briefings/placements Public Hearings • Social Media(Facebook,Twitter, June 8 NextDoor,YouTube, Instagram) June 15(Council vote) • VBTV 19 May 11, 2021 CITY COUNCIL'S BRIEFING POTENTIAL CHANGES TO THE CITY'S ELECTION SYSTEM (Continued) trtaseq C4 �C D ..-it Potential Changes to City's Election System CHRISTOPHER S. BOYNTON DEPUTY CITY ATTORNEY VIRGINIA BEACH CITY COUNCIL WORKSHOP MAY 11,2021 Mayor Dyer expressed his appreciation to Mr. Boynton for the presentation. *Council Member Moss requested to have his typed comments added to the record, attached hereto and made a part of the record. May 11, 2021 Your narrative is that independent of this suit that the State Votings Act independent of the Fowler Act drives us to a ward voting. Answer: An at-large election system or at-large component of an election system is prohibited under the state version of the VRA if there is evidence that there is racially polarized voting in the locality and the at large system dilutes the voting strength of a protected class. See Va. Code §24.2-130. This is similar to but broader than the test under the federal version of the VRA and thus even were the City to prevail on appeal in the federal case, it would be less likely that the City could successfully defend an at large system under the state VRA. Your narrative suggest that even the Fowler Act which would enable us to preserve the true all at-large seats with seven wards would be subject to challenge under the enacted State Voting Rights Act. Answer: Although HB 2198 leaves open the possibility of eliminating the residence districts and going to an all at large system, as you are aware such a change would require a charter amendment by the General Assembly and compliance with the pre-clearance process established in the new state VRA. Even if those steps were to occur, for the reasons stated in response to you prior question, such a change would be subject to a future claim that it violated Section 24.2-130 of the Virginia Voting Rights Act. You have provided narrative that has stated that while the text of the State's Voting Rights Act is not on its face unconstitutionally suspect with regard to the equal protection clause of the U.S. Constitution, a specific application of the interpretation and application of the State's Voting Rights Act provisions with regard to the further undefined"influence districts"could run around afoul if the equal protection clause thus being constitutionally vulnerable. Answer: There could potentially be both facial and as applied challenges to portions of the new state VRA,including claims under the equal protection clause. You have provided narrative that the U.S. Supreme Court has yet to establish to establish that a combination of minorities can be formed and under what evidentiary standards to prove a violation of section 2 of the Voting Rights Act of 1965 as amended. Answer: The Supreme Court has not ruled on whether coalition claims are recognizable under Section 2. You provided narrative that the U.S. Federal courts have come to different conclusions as to whether other a singular minority can be used to meet the 50 percent plus 1 standard independent of addressing the evidentiary standards for validating voting behavior patterns. Answer: There is a split among the federal circuit courts on this issue. You have advance that if we were to appeal at Fourth District Appellate.Court and win, assuming the plaintiffs appealed to the U.S. Supreme Court and one, we would still be subject to litigation under the State Voting Rights Act. Answer: If the City were to prevail on appeal in either the Fourth Circuit or the Supreme Court, plaintiffs or others similarly situated could file a new suit under the Virginia Act and would face an easier path to judgment because of the more relaxed standard for liability under the state act (e.g., under Virginia's Voting Rights Act, a Plaintiff need not prove what is referred to as the first Gingles precondition, that the minority group at issue is "sufficiently large and geographically compact to constitute a majority in a single- member district." This likely means that plaintiffs in a state action will not need to rely on a coalition of minorities to satisfy the VRA requirements.). Is not a factual finding that if the U.S. Supreme Court were to rule in our favor by finding that for the purposes of finding a violation of Section 2 of the Federal Voting Rights Act of 1965 as amended the combination of minorities cannot be used to achieve minority status within the terms of Federal law that the application of the application of the State's Voting Rights act would be constrained? Answer: The state statute would not be directly"constrained." A Virginia court may fmd a Federal Court's interpretation of the Federal Voting Rights Act informative, but it would not be bound by those fmdings in interpreting state law. Further, there are differences between the current federal action and a contemplated state action, because a state plaintiff would not need a"coalition" of different minority groups. A federal ruling on"coalition" claims would be of limited relevance. Your narrative has shared that probability of winning on appeal at the Fourth District Appellate Court is highly dependent on the luck of the draw of the judges in rotation that would hear our case and whether it three judges or nine. Answer: Our case would be heard by a three judge panel and the composition of that panel will affect the prospects for success. Your narrative has been that getting a stay from Judge Jackson on the implementation of his remedy based on his ruling is nil. Answer: I am advised by our outside counsel that the likelihood of a stay is very low and this is consistent with my view. Your narrative has been that securing a stay from the Fourth District Appellate Court is low odds and from the Supreme Court even lower. Answer: Again, outside counsel advises that the Fourth Circuit is unlikely to fmd that we satisfy the standard detailed in response to your next question. Mostly likely we would fmd it hard to satisfy element(2) because the Fourth Circuit would likely fmd that the appeal could conclude before any remedy was applied(i.e.,to the November 2022 election) and thus that the City will not suffer irreparable harm in the absence of a stay. The Fourth Circuit may fmd we are weak on other points as well. The standard for a Supreme Court stay is even higher than for a Fourth Circuit stay. You have not yet shared and now I am requesting you to share as part of public briefing what is standard/the case we would to make to secure a stay. Answer: The standard in Federal courts to secure a stay is: 1. whether the defendant has a strong or substantial likelihood of success on the merits; 2. whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; 3. whether staying the district court proceedings will substantially injure other parties; and 4. where the public interest lies. For a Supreme Court stay,we would have to show, beyond these factors,that the Supreme Court is likely to grant certiorari,which it does in a small number of cases, and to rule in our favor. The reasoning being offered to settle and accept a Judge Jackson's supervision of redistricting and elections for years to come (narrative off your briefing material) is that even if we prevail on the merits we likely would still get ten districts and the"deal" allows the retention of a resemblance of at-large seats with three super wards. Answer: That is a possibility but not a certainty. If the City were to prevail on appeal, it would start at 7 wards with 4 at large seats. Those at large seats could be challenged under state law, as discussed above, but the success of that suit would depend on multiple factors, including whether the 7-4 system has been drawn to allow two or more minority opportunity districts among the seven wards. My belief is that the 10 -1 system is what will be imposed by the federal court if we neither settle nor win on appeal. Is it not a fact, that if we prevail on appeal that we the City in its redistricting efforts and the operation of its election the City would not be under the supervision of a Federal Court? Answer: This statement is correct. Is it not a fact, that if we prevail on appeal that we the City in our compliance with the State Votings Act would have increased constitutional defenses against the applications of the ambiguous "influence districts"provisions? Answer: The City would have defenses and arguments regarding the ambiguity and overbreadth of the state VRA if a lawsuit was brought against the City under that Act. It is possible that language in a favorable appellate ruling could help clarify those defenses but that is not a certainty as the federal appellate court would be basing its ruling on Section 2 of the Federal Act and not on the more broad language in the state VRA. Additionally, the constitutional challenges to certain applications of the State Voting Rights Act will exist regardless of the contemplated appeal. ADJOURNMENT Mayor Robert M. Dyer DECLARED the City Council Meeting ADJOURNED at 4:29 P.M. r Terri H. Chelius Chief Deputy City Clerk r A arnes, M City Clerk May 11, 2021