After a one-week court trial concluding July 24, 2018, the city of Santa Clara was found to have violated the California Voting Rights Act (CVRA) by racially discriminating, through the city charter, against Asian Americans.

Read that back again. If you don’t grasp it, here’s some context.

Harken back to 1963, George Wallace standing in front of door at the University of Alabama, barring Vivian Malone and James Hood, two black students to be, from registering for classes.

Or to 1944, when Korematsu v. United States ruled that internment of Japanese Americans is fine. Or 1882, when the Chinese Exclusion Act prohibited immigration of Chinese laborers. Most apt for the purpose of this column, perhaps, is the 1965 march from Montgomery to Selma in support of voting rights—a right held as one of the most fundamental and most dear to so many Americans.

But here we are in 2020 in Santa Clara.

In 70 years, not a single minority had been elected to office in Santa Clara, where 39.1 percent residents are Asian American.

No one disputes the facts.

Voting rights are a big deal.

Yet in a 130,000-person city in one of the most progressive areas in the United States, discriminatory voting disenfranchisement continues.

Racism is easy to distill. You have your rattle snakes (think white people carrying Nazi flags, wearing white hoods, and the like). You can hear them many feet away and have the chance to get out of the way. Then, there are the cobras—silent and deadly. Up they pop, spit their venom and render you blind or dead in an instant. The latter represents the more pervasive kind of racism. And that’s the kind we see at work in Santa Clara.

If it’s not apparent to you how racism manifests in Santa Clara, allow me to explain.

A Stupid Decision

On June 2, 2011, the Santa Clara City Council received a letter from an attorney alleging CVRA violations. In terms we can all understand, the CVRA prohibits at-large voting in places where minorities make up a substantial part of the city’s residents.

As an attorney, what you should do upon receiving such a claim is, first, to investigate it. By doing so, any reasonable attorney would have determined the city to have a 39.1 percent Asian-American population and a 60 percent minority population and a 70-year history of never electing minorities to local office.

Under such facts, a court decision would be unanimous. The city would lose.

We do not have direct knowledge about what happens in a one of the city’s closed door meetings about litigation. However, one of two things must have happened when the city first received the allegations. Either the city attorney advised council that the claim had no merit, or he said that it did and was told to oppose it anyway.

It’s safe to say, however, that whoever made the decision to fight it was wrong. Santa Clara residents are paying dearly for that mistake of judgment.

It Gets Worse for Residents

So, foregoing the “Safe Harbor” provisions where the city pays nothing if they conform its election scheme to law, the city goes sideways. The City Council decides, in accordance or against the advice of the city attorney, to fight a case in which the odds of winning are unanimously to the contrary. The City Council making this decision are all white.

On Nov. 30, 2017, Santa Clara minority residents file sue the city. There’s now another bite at the apple to reassess and make this right for all residents. Notwithstanding the facts and law, whoever makes decisions in Santa Clara decides to dig themselves deeper into this whole. But why?

The Judgement is No Surprise

One can brush this off as, well, another Bay Area city behaving parochially instead of in everyone’s best interest. That’s how we’ve always done it. I should know: I grew up here.

The court found that the city racially discriminated against minorities. The court ordered Santa Cara to establish six voting districts. To date, the court has slapped about $4 million in attorney’s fees and costs which any reasonable resident would see as a waste of public money. But the costs will only rise on appeal.

Bad Lawyering, Big Lies

The court’s amended judgment on July 24, 2019, prohibits the city from continuing elections (mayor and police chief excluded) from being held other than by six districts. Full stop. End of story.

Yet somewhere, the council and city attorney signed on to the idea that (1) the court’s order only applies to elections in 2020 and, (2) after that date, the city reverts to the already-deemed-illegal, racially discriminatory practice of at-large elections. In fact, this is what the city published in a voter’s guide for Measure C, which I discuss below, and a recent press release after the initiative was (thankfully) defeated.

The voters guide and press release are demonstrably false. The city even admitted it!

Here’s an excerpt from the press release dated immediately after issuance of the amended judgment: “The [court’s] decision, which orders entry of judgment against the city, effectively amends the city’s charter by ordering the city to implement by-district elections for it six city council members.”

Yet, out of nowhere, the city attorney later publishes an “impartial” ballot statement and, as recently as last week, a press release asserting that if Measure C is defeated the city will revert to the at-large scheme already found illegal by the court and banned forever. Unsurprisingly, no support for the city attorney’s crazy conclusion is found anywhere in the city’s admission above, the court judgment or anywhere in the law.

You can’t make this up. But it gets worse.

A ‘Diverse’ Committee

In the wake of the city being found racist in the way it conducts its elections, the City Council doubled down and proved that point.

Notwithstanding the court’s finding and the city’s admission of at-large voting being prohibited, Santa Clara took the unusual position that, in effect, since a judge didn’t order us to amend our charter, we are free to keep discriminating in 2020 and beyond.

Ahh, yes. A return to the good old days.

At a July 14, 2019, City Council meeting, 17 members applied to be appointed to a six-member Charter Review Commission to amend the city charter to respond to the court’s order imposing six districts. I suspect that a video of the hearing will be Exhibit A in any subsequent court proceeding. Some quotes from the night: “No judge going to tell us what to do,” “It’s our city,” “I was raised here …” etc. Such pronouncements were cheered on by the council, save but for a couple members who knew better.

The Santa Clara City Council went on to appoint six longtime white residents to the Charter Review Committee and just one minority, an Asian. Yet in an op-ed, Mayor Lisa Gilmor and Councilwoman Teresa O’Neill, declared the committee to be “diverse.”

Unsurprisingly, the committee voted 5-2 (all white members in the affirmative), in late September 2019, to knowingly bypass the court’s judgment regardless of expense, let alone shame, to Santa Clara residents. They voted to make it more difficult for minorities to be elected to office by selecting a three-district scheme over the Court ordered six.

Yep. The outcome was rigged. The council (again with all white members in the affirmative) then voted 4-3 to place an initiative, Measure C, on the ballot to prove a point over law, fact or court judgment.

The ‘Outside Agitators’

So, the NAACP, Asian Law Alliance and La Raza united to call out the racism of Measure C. It turned out, most Santa Clara residents agreed with them. More than 65 percent of city residents surveyed in a pre-primary election poll support six districts instead of three. The reasons are self-evident: Six districts decreases the money needed to run for elective office, thereby expanding the number of candidates, giving minorities a greater chance of being elected and decreasing the influence of special interests.

The Fight Goes On

In the past week, the city attorney issued a press release declaring that since Measure C lost, Santa Clara must revert to racially discriminatory at-large elections. (That’s a lie. The city of Palmdale tried the same scam only to be found in contempt of court).

Meanwhile, the city is still pursuing an appeal, which will cost taxpayers millions more—and to what end? Residents already said they prefer six districts!

Conclusion

No one is proud to live in a city ruled as racist and deprived of $4 million in taxpayer money to boot. Yet residents in Santa Clara have to deal with that reality because of miscues by their city leaders. This issue will continue to cost residents dearly unless the city changes course. Santa Clara’s appeal is weak and should be dropped immediately. At a minimum, residents should demand a second legal opinion.

J. Byron Fleck is a longtime Santa Clara resident and partner, chief trial counsel and head of Silicon Valley practice Hannig Law, LLP. He has served on the Santa Clara Planning Commission, volunteered for the city’s youth sports and provided pro bono legal help to bring Portuguese-language programing to Santa Clara’s basic cable. Opinions are the author’s own and do not necessarily reflect those of San Jose Inside. Send op-ed pitches to 

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