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HomeMy WebLinkAbout07 RESOLUTION 21-78 CONFIRMING THE CITY COUNCIL'S INTENTION TO TRANSITION TO DISTRICT ELECTIONSDocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA " 0',AGENDA REPORT MEETING DATE TO: FROM: SUBJECT: SUMMARY SEPTEMBER 7, 2021 MATTHEW S. WEST, CITY MANAGER DAVID E. KENDIG, CITY ATTORNEY Agenda Item DS Reviewed:�� City Manager Finance Director N/A RESOLUTION 21-78 CONFIRMING THE CITY COUNCIL'S INTENTION TO TRANSITION FROM AT -LARGE TO DISTRICT ELECTIONS AND REJECTING MALDEF'S CONDITIONS FOR EXTENDING THE PUBLIC OUTREACH PERIOD On August 3, 2021, the City Council adopted Resolution No. 21-64 declaring its intention to transition from at -large to district elections within a 90 -day Safe Harbor period pursuant to the Elections Code and authorized the City Manager to approve and execute an agreement with Mexican American Legal Defense and Education Fund (MALDEF) to extend by an additional 90 days the deadline to adopt an ordinance establishing district - based elections to provide additional time to conduct public outreach, encourage public participation, and receive public input. Unexpectedly, on August 16, 2021, MALDEF conditioned agreeing to the extension upon terms that raise significant issues of compliance with State and Federal law. Despite having had numerous conversations with MALDEF over the past several months regarding the City's utilization of an extension agreement, including the attached email dated July 29, 2021, MALDEF previously made no mention of the extension being subject to additional material demands (see attached email). RECOMMENDATION It is recommended that the City Council take the following action: Adopt Resolution 21-78, "A RESOLUTION OF CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, CONFIRMING ITS INTENTION TO TRANSITION FROM AT -LARGE TO DISTRICT -BASED ELECTIONS PURSUANT TO CALIFORNIA ELECTIONS CODE 10010(e)(3)(A) AND REJECTING MALDEF'S CONDITIONS FOR EXTENDING THE PUBLIC OUTREACH PERIOD." DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA Agenda Report — Resolution Confirming Intent to Transition to District Elections and Rejecting MALDEF's Conditions for Extending the public outreach period September 7, 2021 Page 2 FISCAL IMPACT Significant staff time will be required to transition to district -based elections and to administer the process including the need for at least several public hearings. Transitioning to district -based elections also involves the services of a demographer. Additionally, the City will be required to reimburse MALDEF for its documented costs, up to $30,000. However, such expenses would likely be significantly lower than the costs of litigating the threatened lawsuit if district -based elections are not established before the end of the "90 -day Safe Harbor" period on November 1, 2021. BACKGROUND The City currently utilizes an at -large election system where voters citywide select each of the five City Council Members. By contrast, a district -based election system is one in which a city is physically divided into separate districts, each with one council member who resides in the district and is chosen solely by the voters residing in that district. MALDEF's Demand to Convert to District Elections. On June 23, 2020, the City received a letter from the Mexican American Legal Defense and Education Fund (MALDEF) in Sacramento, California. The letter asserts that the "lack of success of Latino candidates results from the inability of Latino voters to elect candidates of choice due to racially polarized voting among the electorate, and that continued use of at -large elections therefore violates" the California Voting Rights Act (CVRA). The letter demands that the City convert to district -based elections and threatens litigation if the City declines to voluntarily convert to district -based elections. The California Voting Rights Act Imposes Significant Costs of Litigating The CVRA, codified as Elections Code sections 14025 et seq., became law on January 1, 2003. The declared purpose of the CVRA is to prevent the disenfranchisement of protected classes, which are broadly defined to include members of a race, color, or language minority group. Any voter who resides in a city and is a member of a protected class may file a lawsuit for a violation of the CVRA. To succeed, the plaintiff must only show that, as a result of an at -large election, "racially polarized voting" has occurred. "Racially polarized voting" means there is a difference between the choice of candidates preferred by voters in a protected class and candidates preferred by voters in the remainder of the voting population. If the plaintiff prevails in litigation, the CVRA allows for the recovery of significant attorneys' fees and expert witness fees. On the other hand, DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA Agenda Report — Resolution Confirming Intent to Transition to District Elections and Rejecting MALDEF's Conditions for Extending the Public Outreach Period September 7, 2021 Page 3 even if the city that is sued prevails in the lawsuit, it cannot recover either attorneys' fees or costs. Consequently, cities throughout the State have increasingly faced legal challenges to their at -large election systems. Nearly all have settled claims out of court by voluntarily transitioning to district -based elections. Those cities that have attempted to defend their existing at -large election systems have incurred significant legal costs. Staff is unaware of any city that has prevailed in a lawsuit defending an at -large election system after a claim is filed pursuant to the current version of the CVRA. A "Safe Harbor" If A Resolution of Intention to Transition to Districts is Adopted. On September 28, 2016, the Governor signed into law AB 350, which enacted Elections Code section 10010. That legislation established a "safe harbor" from CVRA litigation for cities. Once a city receives a demand letter, it has a period of protection' from litigation to assess its situation. If within 45 days a jurisdiction adopts a resolution of intention to transition to district elections, the jurisdiction has an additional 90 days to complete the districting process. In Tustin's case, the CVRA safe harbor period of protection for completing the districting process runs until November 1, 2021, which is 90 days from August 3, 2021, the date the City Council adopted Resolution No. 21-64. If within that period, the City Council completes the districting process and adopts and ordinance to transition from at -large to district -based elections, then a CVRA lawsuit could not be filed. And under AB 350, the City's liability would be capped at $30,000. Setting District Boundaries Prior to adopting an ordinance actually establishing district -based elections, the City Council is required to establish district boundaries and the sequencing of district elections. California Elections Code section 10010 sets forth the City Council public hearing process for establishing district boundaries and the sequencing of district elections. This process requires a series of noticed public hearings during which the public has a right to provide input on proposed district boundaries. Specifically, Elections Code 10010(a)(1) requires the City must hold at least two "clean slate" hearings at which the public can provide input on district boundaries before any maps are prepared. Thereafter, the City must hold at least two more public hearings to consider draft maps. Finally, the City must hold a public Ordinarily the period of protection is a 45 -day period from receipt of the demand letter. However, due to the Governor's COVID-related emergency orders, that period of protection has been effectively extended to August 14, 2021. DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA Agenda Report — Resolution Confirming Intent to Transition to District Elections and Rejecting MALDEF's Conditions for Extending the Public Outreach Period September 7, 2021 Page 4 hearing at which the map is adopted and the sequencing of district elections is established. The map and sequencing would be approved by City ordinance. The creation and approval of voting district maps is intended to be a transparent public process. Voting district maps must be prepared in compliance with certain State and federal requirements. Of import is Elections Code 10010(b), which provides that, in determining the sequence of the district elections, the City Council shall give special consideration to the purposes of the CVRA and it shall take into account the preferences expressed by members of the districts. The districting process must also include consideration of communities of interest, natural geographic boundaries, and the "one- person, one vote" standard, which requires all voting districts be as nearly equal in population as possible. Finally, Federal caselaw prohibits drawing districts with race as a predominate factor. Ordinance Transitioning to District -Based Elections Transitioning to district -based elections is effectuated by the City Council enacting an ordinance pursuant to Government Code section 34886, provided that the ordinance includes a declaration that it is being adopted to further the purposes of the CVRA. Under this method, the City Council would need to determine whether it wants to have a mayor elected at -large, with the remaining seats chosen through a district -based election process (with four, six, or eight voting districts). If the City Council chooses not to have a mayor elected at -large, it has the option of establishing five, seven, or nine voting districts.2 These decisions will be made by the City Council based on information from the public hearings, and other appropriate considerations as early as the first public hearing on this matter. Authorization for an Agreement to Extend the 90 -Day Deadline California Elections Code section 10010(e)(3)(c)(i) allows the City and MALDEF to enter into a written agreement to extend that 90 day period of protection for up to an additional 90 days (increasing the period of protection from 90 days up to as much as 180 days). This would provide additional time to conduct public outreach, encourage public participation, and receive public input during the districting process. Such an agreement and the additional time it affords would also enable the City and its demographer to review and analyze additional official population data anticipated to be released in late September/early October before engaging in the public hearings on draft proposed district maps. 2 Cal. Gov't Code § 34871. DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA Agenda Report — Resolution Confirming Intent to Transition to District Elections and Rejecting MALDEF's Conditions for Extending the Public Outreach Period September 7, 2021 Page 5 At its meeting of August 3, 2021, the City Council authorized the City Manager to enter into a 90 -day extension agreement with MALDEF. MALDEF's Conditions to the 90-Dav Extension Reauest On August 16, 2021, MALDEF proposed an extension agreement that would grant the 90 -day extension for completing the districting process conditioned upon, among other provisions, the City's commitment to establish an electoral map that "shall not impair the ability of the Latino community to elect candidates of its choice to the City Council, in accordance with federal and state law" and that the "sequencing of the elections for the districts shall be such that at least one electoral district that is intended to remedy Latino vote dilution has a City Council seat up for election on November 8, 2022." After some discussions, MALDEF agreed to remove the latter condition related to sequencing, but continues to demand the former as a condition to agreeing to extend the 90 -day public outreach period. In sum, MALDEF is demanding that the City commit to establishing an electoral map that "shall not impair the ability of the Latino community to elect candidates of its choice to the City Council," which suggests or assumes that the City will draft at least one district using the Latino race as a predominant factor, which is generally prohibited by Federal caselaw. The condition would further commit the City to a specific outcome before the City Council actually considers public input prior to drawing districts as required by subdivision (a) of Elections Code 10010. DISCUSSION The City is committed to engaging in the districting process in compliance with all applicable laws and encourages MALDEF to drop its demanded conditions on the extension agreement, and to simply agree to extend the 90 -day term so that the City, the public and MALDEF will have additional time to thoughtfully engage in public outreach and education, public participation, and public input during the districting process. However, if MALDEF continues to be unwilling to agree to the extension without the unlawful demands, the City will proceed with implementing the required steps by November 1, 2021. The attached Resolution No. 21-78 of Intent will re -affirm the City's commitment to following the law and will reject MALDEF's proposal that the City should disregard the CVRA's and Federal law requirements. ATTACHMENTS 1. July 29, 2021 Email from MALDEF — Intent to enter into extension agreement 2. Resolution 21-78. 3. Extension Agreement Proposed by MALDEF on August 16, 2021. 4. Revised Agreement Proposed by the City on August 17, and August 27, 2021. DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA David E. Kendig From: Tanya Pellegrini <Tpellegrini@MALDEF.org> Sent: Thursday, July 29, 2021 8:23 PM To: David E. Kendig Cc: Michael S. Daudt; Ernest Herrera Subject: Re: Tustin District Elections Attachments: image001.jpg; log o_24a83e77-8c70-415f-9dcc-6892f2286ea0.JPG Hi David, Thanks for speaking with me this afternoon. As discussed, we are open to a go -day extension under Election Code Section loolo after the City Council votes to convert to single -member district elections. However, an extension is premature at this time since the City Council has not yet voted to adopt a resolution to convert to district elections. We would be happy to discuss the go -day extension after the City Council passes a resolution of intent to convert to district elections. Please feel free to contact me should you like to discuss this matter further. Thank you. Sincerely, Tanya G. Pellegrini (she/hers) Staff Attorney MALDEF 1512 14th Street Sacramento, CA 95814 Ph (916) 444-3031 www.maldef.org<http://www.maldef.org/> CONFIDENTIALITY NOTICE: This e-mail transmission from The Mexican American Legal Defense & Educational Fund, and any documents, files or previous e-mail messages attached to it may contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is strictly prohibited. If you have received this transmission in error, please immediately notify us by reply e-mail or by telephone at (916) 444-3031, and destroy the original transmission and its attachments without reading or saving it in any manner. From: Michael S. Daudt <mdaudt@wss-law.com> Sent: Wednesday, July 28, 20216:18 PM To: Tanya Pellegrini Cc: David E. Kendig Subject: FW: Tustin District Elections Hello Tanya, As you know, I am heading out of state tomorrow. In my absence, can you please contact City Attorney David Kendig at your earliest convenience. David is working to finalize the City Council staff report to go out tomorrow. He is cc'd on this email and can be reached via cell at (949) 310-2524• DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA Thanks, Michael [cid:logo_24a83e77-8c7o-415f-9dcc-6892f2286eao.JPG] Michael S. Daudt Attorney at Law 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 714-415-1059 • Fax: 714-415-1159 mdaudt@wss-law.com www.wss-law.com<http://www.wss-law.com> CONFIDENTIALITY NOTICE — This e-mail transmission, and any documents, files or previous e- mail messages attached to it may contain information that is confidential or legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that you must not read this transmission and that any disclosure, copying, printing, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender by telephone at 714-415-1059 or return e-mail and delete the original transmission and its attachments without reading or saving in any manner. Thank you. From: Michael S. Daudt <mdaudt@wss-law.com> Sent: Wednesday, July 28, 2021 12:04 PM To: Tpellegrini@MALDEF.org Subject: Tustin District Elections Hi Tanya, Sorry for missing your call. Per your voicemail, I'd appreciate your sending a sample template agreement that could be modified for use in Tustin and presented to the City Council on Tuesday. Even if we are unable to secure your client's signatures and approval of the agreement in advance of the meeting, we would like to present a draft agreement in connection with the request for City Manager authorization to execute an extension agreement that substantially complies with the attached draft. Please let me know what you think. Best, Michael [cid:imageool.jpg@o1D783DC.F2663FBo] DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA Michael S. Daudt Attorney at Law 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 714-415-1059 • Fax: 714-415-1159 mdaudt@wss-law.com <mailto:mdaudt@wss-law.com> www.wss-law.com<http://www.wss-law.com> CONFIDENTIALITY NOTICE — This e-mail transmission, and any documents, files or previous e- mail messages attached to it may contain information that is confidential or legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that you must not read this transmission and that any disclosure, copying, printing, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender by telephone at 714-415-1059 or return e-mail and delete the original transmission and its attachments without reading or saving in any manner. Thank you. This email has been scanned for spam and viruses by Proofpoint Essentials. Click here<https://us3.proofpointessentials.com/indexol.php?mod_id=11&mod option=logitem&mail_id =1627521510-4xkTFRa8n8vv&r_address=tpellegrini%4omaldef.org&report=l> to report this email as spam. DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA RESOLUTION NO. 21-78 A RESOLUTION OF CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, CONFIRMING ITS INTENTION TO TRANSITION FROM AT -LARGE TO DISTRICT -BASED ELECTIONS PURSUANT TO CALIFORNIA ELECTIONS CODE 10010(e)(3)(A) AND REJECTING MALDEF'S CONDITIONS FOR EXTENDING THE PUBLIC OUTREACH PERIOD WHEREAS, members of the City Council of the City of Tustin ("City") are currently elected in at -large elections, in which each Councilmember is elected by all registered voters of the entire City; and WHEREAS, Government Code Section 34886 authorizes the City Council to adopt an ordinance to change its method of election from an at -large system to a district -based system, in which each Councilmember is elected only by the voters in the district in which the candidate resides; and WHEREAS, on Tuesday June 23, 2020, the City received a letter from Tanya G. Pellegrini, Staff Attorney for the Mexican American Legal Defense and Education Fund ("MALDEF"), asserting that the City's at -large election system violates the California Voting Rights Act ("CVRA") and threatening litigation if the City declines to voluntarily change to a district -based election system for electing Councilmembers; and WHEREAS, the City denies its election system violates the CVRA or any other provision of law and asserts the City's at -large election system is legal in all respects and further denies any wrongdoing whatsoever regarding the way it has conducted its City Council elections; and WHEREAS, despite the foregoing, the City Council has concluded it is in the public interest to begin the process of transitioning from at -large to district - based elections due to the uncertainty of litigation to defend against a CVRA lawsuit and the potentially extraordinary cost of such a lawsuit, even if the City were to prevail; and WHEREAS, on August 3, 2021, the City Council adopted Resolution No. 21-64 declaring its intention to transition from at -large to district elections within 90 days pursuant to Elections Code 10010(e)(3)(B); and WHEREAS, in addition to approving Resolution No. 21-64, pursuant to Elections Code 10010(e)(3)(C) the City Council on August 3, 2021, authorized the City Manager to approve and execute an agreement with MALDEF to extend by an additional 90 days the deadline to adopt an ordinance establishing district - based elections to provide additional time to conduct public outreach, encourage public participation, and receive public input; and 1600173.1 DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA WHEREAS, on August 16, 2021, MALDEF conditioned agreeing to the 90 - day extension for completing the districting process upon, among other provisions, the City's commitment to establishing an electoral map that "shall not impair the ability of the Latino community to elect candidates of its choice to the City Council, in accordance with federal and state law" (the "Election Condition"), and that the "sequencing of the elections for the districts shall be such that at least one electoral district that is intended to remedy Latino vote dilution has a City Council seat up for election on November 8, 2022" (the "Sequencing Condition"); and WHEREAS, Elections 10010(a)(1) requires the City to hold at least two public hearings before drawing a draft map; and WHEREAS, Elections 10010(b) requires the City that, in determining the sequence of the district elections, the City Council shall give special consideration to the purposes of the CVRA and it shall take into account the preferences expressed by members of the districts; and WHEREAS, Federal caselaw prohibits drawing districts with race as a predominate factor; and WHEREAS, MALDEF has since agreed to remove the Sequencing Condition, but continues to demand upon the Election Condition as a condition to agreeing to extend the 90 -day period to engage in conducting public outreach, encouraging public participation, and receiving public input prior to the completion of the districting process; and WHEREAS, the City is committed to engaging in the districting process in compliance with all applicable laws, including but not limited to the California and Federal Constitutions, the Federal Voting Rights Act, 52 USC 10301, the CVRA, Govt. Code 34886, and Elections Code 10010 and 21601; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUSTIN DOES RESOLVE AS FOLLOWS: SECTION 1. The above recitals are true and correct and are incorporated herein by reference. SECTION 2. The City Council hereby confirms its intention to transition from at -large to district -based elections and to do so in compliance with all applicable state and federal laws and Constitutions; SECTION 3. The City shall continue to utilize a demographer experienced and qualified to assist the City in drafting a district map consistent with the CVRA, the Federal Voting Rights Act, and the California and Federal Constitutions. SECTION 4. City staff shall work with the demographer to provide a detailed analysis of the City's current demographics and any other information or data necessary to prepare a draft map that divides the City into voting districts in 2 DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA a manner consistent with the intent and purpose of the CVRA, the Federal Voting Rights Act, and the California and Federal Constitutions. SECTION 5. The City remains committed to engaging in the districting process in compliance with all applicable laws, including but not limited to the California and Federal Constitutions, the Federal Voting Rights Act, 52 USC 10301, the CVRA, Govt. Code 34886, and Elections Code 10010 and 21601. SECTION 6. The City Council hereby rejects the demanded conditions upon the districting process, such as the Election Condition and the Sequencing Condition that have been demanded by MALDEF, as conditions upon extending the 90 -day term for completing the districting process. SECTION 7. The City Council encourages MALDEF to drop its demanded conditions on the extension agreement and to simply agree to extend the 90 -day term so that the City, the public and MALDEF will have additional time to thoughtfully engage in public outreach and education, public participation, and public input during the districting process. SECTION 8. The City Clerk shall certify as to the adoption of this Resolution. PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meeting held on the 7t" day of September, 2021. ATTEST: ERICA N. YASUDA, City Clerk 3 LETITIA CLARK, Mayor DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Erica N. Yasuda, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council is five; that the above and foregoing Resolution No. 21-64 was duly and regularly passed and adopted at a regular meeting of the City Council held on the 7th day of September, 2021 by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: ERICA N. YASUDA, City Clerk M DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA AGREEMENT BETWEEN THE CITY OF TUSTIN AND MALDEF REGARDING CALIFORNIA VOTING RIGHTS ACT DEMAND LETTER This Agreement (the "Agreement") is entered into by and between the City of Tustin ("City"), a California municipal corporation, and the Mexican American Legal Defense and Educational Fund ("MALDEF"), a California non-profit organization as of , 2021. The City and MALDEF may each be referred to here as a "Party" or collectively as the "Parties". RECITALS WHEREAS, the City is a California general -law city with a five -member city council, all five councilmembers are elected at -large by the entire City; and WHEREAS, on June 23, 2020, MALDEF sent a letter demanding the City comply with the California Voting Rights Act (the "Demand Letter"); and WHEREAS, the Demand Letter specifically demanded that the City convert its at -large city council election system to a district -based election system; and WHEREAS, the Tustin City Council adopted Resolution No. 21-64, Resolution of the City Council of the City of Tustin Declaring its Intent to Transition from At -Large Elections to District -Based Elections to Elections Code Section 10010(e)(3)(A), on August 3, 2021 ("Resolution of Intent"); and WHEREAS, the City's next regularly scheduled City Council election is scheduled for November 8, 2022; and WHEREAS, under Elections Code section 10010(e)(3)(B), MALDEF may not commence an action to enforce the California Voting Rights Act ("CVRA") within 90 days of adoption of the Resolution of Intent; and WHEREAS, in order to provide additional time to conduct public outreach, encourage public participation, and receive public input, the Parties desire to extend the time period in which an action to enforce the CVRA may not be commenced by an additional 90 days. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows. 1. Recitals. The Parties acknowledge that the foregoing recitals are true and correct and are incorporated here by this reference. 2. Extension of Time. Under Elections Code section 10010(e)(3)(C)(i), the City and MALDEF mutually agree to extend the time period described in Elections Code section 10010(e)(3)(B) by 90 days. In accordance with the terms of this Agreement, MALDEF shall not commence an action against the City to enforce the CVRA before January 30, 2022. DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA 3. City Boundaries. The new City boundaries shall be established no later than six months before November 8, 2022, which is the next regular election to elect members of the City Council. 4. Electoral City Map. The intent of the Parties is that the electoral map shall not impair the ability of the Latino community to elect candidates of its choice to the City Council, in accordance with federal and state law. The electoral map shall include electoral districts in which Latino voters have a meaningful opportunity to elect candidates of their choice, and the map shall be drawn according to the most recently available decennial Census data, drawn in a manner consistent with applicable law. The boundaries of the electoral district map shall be drawn in accordance with criteria set forth in the following order of priority: Districts shall contain reasonably equal total population; ii. Districts shall comply with applicable federal and state law, including, without limitation, the CVRA, the Constitution of the United States and of the State of California, the federal Voting Rights Act of 1965, as amended, 52 U.S.C. §§ 10301, et seq.; iii. Districts shall be drawn to encourage geographic compactness and shall be geographically contiguous by land, such that areas that meet only at the points of adjoining corners and areas that are separated by another territory are not contiguous; non -contiguity by water is permitted only if connected by bridge, tunnel, or regular ferry service; and iv. Districts shall be drawn with respect for the geographic integrity of any neighborhood and any community of interest to the extent possible without violating the requirements of any of the preceding provisions. The City shall look to federal and state voting rights law for guidance on how to identify communities of interest, including, e.g., Luna v. County ofKern, 291 F.Supp.3d 1088, 1110 (finding a community of interest existed where community shared concerns in the areas of immigration, language, and culture); LULAC v. Perry, 548 U.S. 399, 432 (2006) (explaining that courts must look to "socio-economic status, education, employment, health, and other characteristics."); Bush v. Vera, 517 U.S. 952, 964 (1996) (describing exemplary "manifestations of community of interest" as including "shared ... institutions such as schools and churches"); Perez v. Abbott, 2017 WL 1406379, at *56-60 (W.D. Tex. Apr. 20, 2017) (identifying communities of interest based on shared socioeconomic characteristics such as high poverty levels, geography, lack of adequate employment opportunities, health-related concerns, and certain regional challenges). 5. Sequencing of Elections. The sequencing of the elections for the districts shall be such that at least one electoral district that is intended to remedy Latino vote dilution has a City Council seat up for election on November 8, 2022, which is the next regular election to elect members of the City Council. DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA 6. CVRA. By entering into this Agreement, the City does not admit or concede that its current at -large election system is in violation of the CVRA. Except as expressly provided for herein, MALDEF does not waive any rights it may have under the CVRA. 7. Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and expenses in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 8. Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 9. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 10. Construction of Agreement. Each party has had an equivalent opportunity to participate in the drafting of the agreement and/or to consult with legal counsel. Therefore, the usual construction of an agreement against the drafting party shall not apply. 11. No Third Party Beneficiaries. This Agreement is made solely for the benefit of the parties, with no intent to benefit any third parties. The Parties have executed this Agreement as of the Effective Date. CITY OF TUSTIN MALDEF Letitia Clark, Mayor Tanya Pellegrini, Staff Attorney Approved as to Form: David Kendig, Attorney for City of Tustin DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA AGREEMENT BETWEEN THE CITY OF TUSTIN AND MALDEF REGARDING CALIFORNIA VOTING RIGHTS ACT DEMAND LETTER This Agreement (the "Agreement") is entered into by and between the City of Tustin ("City"), a California municipal corporation, and the Mexican American Legal Defense and Educational Fund ("MALDEF"), a California non-profit organization as of , 2021. The City and MALDEF may each be referred to here as a "Party" or collectively as the "Parties". RECITALS WHEREAS, the City is a California general -law city with a five -member city council, all five councilmembers are elected at -large by the entire City; and WHEREAS, on June 23, 2020, MALDEF sent a letter demanding the City comply with the California Voting Rights Act (the `Demand Letter")-, and WHEREAS, the Demand Letter specifically demanded that the City convert its at -large city council election system to a district -based election system; and WHEREAS, the Tustin City Council adopted Resolution No. 21-64, A Resolution of the City Council of the City of Tustin, California, Declaring Its Intention to Transition from At -Large Elections to District -Based Elections Pursuant to California Elections Code 10010(e)(3)(A), on — Deleted: seetion August 3, 2021 ("Resolution of Intent'), and WHEREAS, the City's next regularly scheduled City Council election is scheduled for November 8,2022-, and WHEREAS, under Elections Code section 10010(e)(3)(B), MALDEF may not commence an action to enforce the California Voting Rights Act, Elections Code 14025 et seg. ("CVRA") within 90 days of adoption of the Resolution of Intent; and WHEREAS, in order to provide additional time to conduct public outreach, encourage public participation, and receive public input, the Parties desire to extend the time period in which an action to enforce the CVRA may not be commenced by an additional 90 days. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows. 1. Recitals. The Parties acknowledge that the foregoing recitals are true and correct and are incorporated here by this reference. 2. Extension of Time. Under Elections Code section 10010(e)(3)(C)(i), the City and MALDEF mutually agree to extend the time period described in Elections Code section 10010(e)(3)(B) by 90 days. In accordance with the terms of this Agreement, MALDEF shall not commence an action against the City to enforce the CVRA on or before January 30, 2022. 1 1615790.1 DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA 3. City District Boundaries. If the Council adopts an ordinance establishing district -based (Commented [DEKl]: elections. e new City district boundaries Ishall be established no later than six months before Deleted: T November 8, 2022, which is the next regular election to elect members of the City Council. Commented [osz]: Added this new section to address the provisions of law addressing the two sections I [�` ecommend be deleted below.ncorporate 4. Compliance with Law. In implementing Resolution No. 21-64, the City will Proceed in compliance with all applicable laws, including, but not limited to the California and Federal Deleted: 4.-s Electoral City Man Constitutions, the Federal Voting Rights Act, 52 USC 10301, the CORA, Govt. Code 21601, Deleted: , The intent of the Parties is that the electoral map shall not impair the ability ofthe Latino community to elect candidates of Govt. Code 34886, and Elections Code 10010. its choice to the City Council, in accordance with federal and state law. The electoral map shall include electoral districts in which Latino voters have a meaningful opportunity to elect candidates of �5. CVRA. By entering into this Agreement, the City does not admit or concede that its their choice, and the map shall be drawn according to the most current at -large election system is in violation of the CVRA. Except as expressly for recently available decennial Census data, drawn in a manner provided consistent with applicable law. The boundaries of the electoral herein, MALDEF does not waive any rights it may have under the CVRA. district map shall be drawn in accordance with criteria set forth in the following order of priority:¶ Amendments. The parties may amend this Agreement only by a writing signed by all the Districts shall contain reasonably equal total population;q Districts shall comply with applicable federal and state law, parties. including, without limitation, the CVRA, the Constitution ofthe United States and of the State of California, the federal Voting may uns, each 7_ Counterparts. This Agreement be executed in multiple counterparts, of which Rights Act of 1965, as amended, 52 U.S.C. §§ 10301, etseq.;q . 11 g y 13 13 __. Districts shall be drawn to encourage geographic compactness and shall be an original and all of which together shall constitute one agreement.1 shall be geographically contiguous by lana, such that areas that meet only at the points of adjoining comers and areas that are separated by anomer territory are not contiguous; non -contiguity by water is 8. Construction of Agreement. Each party has had an equivalent opportunity to participate permitted only ifeonnectedbybridge, tunnel, orregular ferry in the drafting of the agreement and/or to consult with legal counsel. Therefore, the usual service; and¶ Districts shall be drawn with respect for the geographic integrity of construction of an agreement against the drafting party shall not apply. ��' any neighborhood and any community of interestto the extent possible without violating the requirements of any ofthe preceding provisions. The City shall look to federal and state voting rights law �. No Third_ Party Beneficiaries. This Agreement is made solely for the benefit ofthe for guidance on how to identify communities ofinterest,including, with n0 intent t0 benefit any third e.g., Luna v. County ofxem, 291 E.Supp.3d 1088, 1110 (finding a parties, parties. community of interest existed where community shared concerns in the areas of immigration, language, and culture); L ULAC v. Perry, The Parties have executed this Agreement as of the Effective Date. 548 U.S. 399, (zoos (explaining mat courts must to an s scams, education, employment, health, and other '. characteristics.'); Bush v. Vera, 517 U.S. 952, 964 (1996) CITY OF ,)(,US,)(,](N MAL]D]H, F (describing exemplary "manifestations of community of interest" as including "shared ... institutions such as schools and churches'); Perez v. Abbott, 2017 WL 1406379, at *56-60 (W.D. Tex. Apr. 20, 2017) (identifying communities of interest based on shared socioeconomic characteristics such as high poverty levels, geography, lack of adequate employment opportunities, health- S. West, City Mana er Tanya Pellegrim, Staff Attorneyrelated Ie y____ g related concerns, and certain regional challenges).q k" � ___. S.�Seauencine of Elections Deleted:. The sequencing ofthe elections for the districts shall be such that at least one electoral district that is intended to remedy Approved as t0 Form: Latino vote dilution has a City Council seat up for ele tion o Deleted: 7. -> Atromevs' Fees Deleted: , If a party to this Agreement brings any action, David Kendig, LibLAttorney for City Tustin including an action for declaratory relief, to enforce or interpret the of ,I. provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and expenses in addition to 2 Deleted:9 '. Deleted: 10 (Deleted: 11 1 Commented[DEK6]: At its August 3 meeting, the Council '. authorized the City Manager to approve the extension agreement (Deleted: Letitia Clark, Mayor Deleted: -�-� 2 1615790.1 DocuSign Envelope ID: BEAB79AE-6671-4387-B359-8ACA1E87A2DA Page 2: [1] Deleted Omar Sandoval 8/16/215:47:00 PM Page 2: [2] Deleted Omar Sandoval 8/16/216:49-00 PMMA