Election fairness, incumbency and money: First things first

Too much of the discussion around Thousand Oaks’ move to district elections centers on protecting incumbents and business interests, as if those are the primary or only criteria to consider.

They aren’t. Voting rights laws require that we move incumbency way down in importance, if we consider it at all, when drawing fair and legally defensible district lines.

And since districting is about equal representation of people and not businesses, commercial interests can play no part in selecting a fair map. This isn’t to say business is unimportant, only that it’s off-topic here.

The U.S. Voting Rights Act of 1965 (VRA) and California Voting Rights Act of 2001 (CVRA) require the city council to meet six mandatory tests to ensure fair representation for protected classes of voters. Failure to do so can subject the city to costly and time-consuming litigation.

There’s no particular order of importance among the requirements, but the council must address them all. Here are the six tests:

1. Equal population (federal): Districts must contain roughly equal numbers of residents. This refers to current residents, not some hypothetical number of future residents.

2. Race may not predominate (federal): The U.S. Supreme Court held in Shaw v. Reno that race cannot be the predominant factor in drawing district lines.

This is sometimes misinterpreted as “you can’t consider race in drawing maps.” In fact, the Shaw decision allows race to be a factor, just not the main factor. In other words, the city council can consider race as long as it does so in concert with other considerations.

The U.S. Supreme Court reaffirmed the use of race-based criteria as recently as last month, when it held in Allen v. Milligan that districts found to discriminate based on race can be subject to litigation.

3. Communities of interest (state): Very roughly speaking, a community of interest (COI) is a group of residents living near one another with common characteristics. A district must represent a COI.

A widely used definition of a community of interest (COI) is a contiguous population that shares common social and economic interests, and that should be included within a district for fair and effective representation.

The concept of a COI is intentionally broad. COIs may be based on socioeconomic status, language, shared history, housing status (rent or own), and housing type (single-family or multi-family).

Following up on the Shaw decision, race may be a consideration when used with other factors. The CVRA explicitly states that race is a way to define a protected class.

The important point is that a COI describes a contiguous group with shared characteristics.

4. Geographic contiguity (state): A district cannot include separate islands of population. For example, a district with one neighborhood of Newbury Park and another, disconnected area in Westlake Village would not pass muster.

5. Easily identifiable boundaries (state): To the maximum extent possible, district lines should follow natural or artificial barriers such as mountains, creeks, freeways, and main thoroughfares.

6. Compactness (state): District lines cannot bypass nearby population to reach another group that’s farther away. In the context of the federal Voting Rights Act, the U.S. Supreme Court held, in League of United Latin American Citizens v. Perry (2006), that compactness also indicates residents have some sort of cultural cohesion, similar to COIs above.

These are the six mandatory considerations — the ones the city council must consider before any others. In addition, the city’s demographer listed two “traditional” criteria. These are purely optional:

7. The will of the voters (state): This is the incumbent-protection question. There are valid arguments for and against drawing districts that keep incumbents in office.

On the one hand, a bedrock requirement of democracy is that we all respect the outcome of free and fair elections. Regardless of whether we agree with an election’s result, the voters have a right to public service from their chosen candidate.

On the other hand, gerrymandered maps — drawn with the specific purpose of giving any incumbent, candidate, or political party an advantage or disadvantage — clearly violate the spirit of the CVRA. After all, California enacted its voting-rights law to ensure better representation for minorities and other underrepresented groups, not to give incumbents an advantage (or disadvantage).

One special consideration for Thousand Oaks is that there will be a 2024 election for two city council seats now held by incumbents — Mayor Kevin McNamee and Mayor Pro Tem Al Adam. Many of the draft maps under consideration would put these men in the same district, while others leave all five incumbents in separate districts.

These two councilmembers’ seats will be up for election next year, with or without a move to district elections. Should one or both choose to run for re-election, they would need to stand for re-election anyway.

To reiterate, councilmembers may consider incumbency when drawing maps, but only optionally, and only after satisfying the six mandatory tests.

California’s Constitution actually forbids consideration of incumbency when drawing districts (Article XXI, Section 2e). However, that ban covers statewide and federal offices. The state Constitution is silent on the use of incumbency as a factor in drawing districts for county or local offices.

8. Future population trends (state): It’s not only possible but also quite likely that population patterns will change over time. The city council may optionally consider future demographic changes in drawing district lines — but again, may do so only after satisfying the six mandatory tests.

Projections about future population growth are problematic on two counts. First, this optional consideration can directly contradict the first federal requirement that districts equally count the number of current residents. Second, projections are just that — educated guesses that may or may not pan out.

District lines aren’t cast in stone for eternity. Boundaries may change with every 10-year census cycle, or sooner if successfully challenged in the courts.

Finally, one criterion that must not be considered is economic interests. While economic development is very important to our community, and while the city council takes many actions to further that development, it has no place in this discussion. The topic here is representation for residents, not businesses.

In early U.S. history, most states originally allowed voting only by property owners, disenfranchising many citizens. Thankfully, all states removed that requirement by 1856. People vote, not property or business interests.

The whole point of going to districts is to ensure currently underrepresented groups have fair and equal access to the electoral process. That must be the focus — the only focus — as the city council determines district boundaries.

David Newman is a Thousand Oaks City Councilmember. These are his personal opinions, and do not reflect official city positions.

This article originally appeared on Ventura County Star: Election fairness, incumbency and money: First things first