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Frequently Asked Questions - By-Trustee Area (FAQs)

The California Voting Rights Act (CVRA) prohibits the use of any election system “that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.”  Should an individual challenge a public entity’s election system and the court finds against that jurisdiction, the jurisdiction must change its election system and pay the plaintiff’s attorneys, experts, and other expenses.  The only safe harbor from a CVRA claim is to implement a by-trustee area election system.

The CVRA was adopted in 2002, and is based upon the Federal Voting Rights Act of 1965 (“FVRA”) with some important differences that make at-large election systems much more susceptible to legal challenges.  For a plaintiff to be successful in a claim of violation under the FVRA relating to at-large elections, the plaintiff must show that: 1) a minority group is sufficiently large and geographically compact to form a majority of the eligible voters in a single-member district; 2) there is racially-polarized voting; and 3) there is “white bloc voting” (the term used by the courts reviewing such cases) sufficient usually to prevent minority voters from electing candidates of their choice. If a plaintiff proves these three elements, then the federal court will consider whether, under the “totality of circumstances,” the votes of minority voters are diluted by the at-large election system.

The CVRA removes two of these factors. It eliminates what is known as the “geographically compact” FVRA precondition (e.g., can a majority-minority district be drawn) as well as the “totality of the circumstances” or “reasonableness” test.  Because the CVRA eliminates some of the elements that a plaintiff must prove, it is less difficult for a plaintiff to meet its burden and more difficult to defend against a CVRA claim as opposed to a claim under the FVRA.  As a result of the lower threshold for proving a claim under the CVRA, many jurisdictions have voluntarily switched to district-based election systems instead of facing litigation.

Like hundreds of public agencies across the state, the Fremont Unified School District is starting the process to change how voters elect Board of Education Members.  On July 31, 2019, the District received a letter demanding that the Board elections transition from the current at-large election method to a By-Trustee Area Election method in order to comply with the CVRA. The Board of Education has decided to take advantage of recent legislation (AB 350) that provides a short window of opportunity to discuss, invite public input and ultimately decide on a district-based election process.  Upon adoption of a resolution of intent to transition, the law provides 90 days to conduct public hearings prior to adopting an ordinance ordering the transition to a By-Trustee Area Election System (Elections Code Section 10010).  On September 11, 2019, the Fremont Unified School District Board adopted a resolution declaring its intent to transition to a By-Trustee Area Election System.

Fremont Unified School District has an at-large election system, where voters of the entire city elect all members of the Board of Education.  A “By-Trustee Area” election system will carve the District into equal population Trustee Areas. Voters in each Trustee Area choose their Board representative, who must also live in that Trustee Area.

Many school districts have changed their election method voluntarily, following receipt of a demand letter, or by court order. Agencies that have attempted to defend their at-large election systems have incurred significant legal costs. Here are a few examples of the legal costs that other cities paid defending their at-large systems: Palmdale $4.7 million, Modesto $3 million, Anaheim $1.1 million.  Recently the City of Santa Monica was unsuccessful in defending at-large elections in court.  There, the plaintiffs requested over $20 million in fees.  These figures do not include the public entities’ own legal defense costs.

If approved, registered voters in the District boundaries will have the opportunity to vote for a candidate for the Board of Education that lives in their By-Trustee Area on a four-year cycle.  Registered voters will not be able to vote for candidates from By-Trustee Areas in which they do not reside.

At this time, the Board will be considering map options that include five By-Trustee Areas. 

The Board will continue to have five Trustees.  In a given election, there will be either two or three seats open for election, as is the case now.  Since there were three four-year terms open for election in 2016, there will be three four-year terms open for election in 2020.  Since there were two four-year terms open for election in 2018, there will be two four-year terms open for election ins 2022.  This sequencing will continue.

The Board is conducting public hearings to receive community feedback on the proposed By-Trustee Areas. Two public hearings will be held before the release of draft maps, and at these hearings residents will be asked to provide input on potential “communities of interest” to follow when shaping draft By-Trustee Area maps. There will be three additional public hearings regarding map options under consideration at subsequent Board meetings once map options are prepared by the District’s demographer. The Board will then consider a resolution establishing By-Trustee Area Elections, By-Trustee Area boundaries and which By-Trustee Areas will hold elections and when.

The Board will consider draft maps prepared by a professional demographer and any maps submitted by the public that meet the legal criteria for consideration.

The qualifying maps will be posted on the District’s website in mid to late October 2019.

Once the maps are released for public review on the Fremont Unified School District’s website in mid-late October, the Board of Education will have three public hearings in which it will take public testimony regarding the draft maps.  Members of the public and interested parties also have the option of submitting written comments on the draft maps, including which map or maps they support.

The Board will consider a range of factors in selecting the final map including (but not limited to) equal population, communities of interest, compactness, contiguity of the districts, visible/natural boundaries, and respect for voters’ wishes and continuity in office.

The population of each Trustee area must be nearly equal, based on total population.  (See Reynolds v. Sims (1964) 377 U.S. 533.)  That being said, the law permits local districts to have up to a 10% variance between the largest and smallest districts.  (Id.) The 2010 Census was the last time every person was accurately counted in the District.  Updated total population figures since then are merely estimates.  Therefore, in order to comply with federal and state population equality requirements, the District’s demographer is required to use the most recent Census data (2010) – or, the District may conduct its own census – when calculating equal population per area.

Here, the 2010 Census data indicates that the total District population is approximately 214,000 people.  214,000 people divided evenly into five Trustee areas comes out to approximately 42,800 people per area.  That works out to an allowable variance of 4,280 people between the largest and smallest areas on a given map option.

The District should also follow the spirit of the CVRA and citizen voting age population (“CVAP”) data, amongst other factors and considerations, to determine whether it is possible to preserve or increase the voting power of protected classes. CVAP data is more current than the Census data, and is based on a 5 year rolling average established by the American Community Survey conducted by the Census bureau.  Although the CVAP data is useful in attempting to increase the voting power of protected classes within the District, ultimately, the District must rely on the most recent, available census data to ensure population equality, which would be 2010 Census data in this case. 

A community of interest is any distinctive area within the school district boundaries that has a definable group of people, unique geography or some other distinguishable feature or characteristic that it would be undesirable to divide in the creation of By-Trustee Areas. Some of these may already be clearly established and others may be defined as a result of this process. This distinction requires strong community input to ensure communities of interest are protected in this process.

All written communications will be provided to the Board and will be part of the public record.  The Board will consider the public record as part of its determination on which map it will adopt following this public process.

The School Board will consider a range of factors when it chooses to select a district map of five geographic areas as part of the transition to a By-Trustee Area Election System.  These factors include (but are not limited to) equal population, communities of interest, compactness, contiguity of the districts, visible/natural boundaries, and respect for voters’ wishes and continuity in office.

The timeline is prescribed by the California Election Code 10010.  The School Board adopted a resolution of intent on September 11, 2019. In order to receive the “safe harbor” protection of AB 350, the School Board has 90 days from September 11, 2019 to adopt an ordinance transitioning to district based elections for School District Board Members.  The District is scheduled to hold its final public hearing on December 10, 2019.  Following that public hearing, the Board is expected to adopt a final Trustee-Area plan (map) and a resolution regarding the same.

If approved, the new By-Trustee Area Elections would not become effective until the election in November 2020.  However, the specific date (election sequencing) on which a Board of Education Member will be elected from each of the new geographic areas (i.e., either in November 2020 or November 2022) will be determined as part of the ordinance that adopts the new districts.

No.  The District’s November 2016 elections seated three Trustees for four-year terms through 2020.  Therefore, in 2020, the District will have three Governing Board seats (Trustee Areas) up for election during its first by-trustee area election.  The other two Trustee Areas will hold elections in 2022. Other public entities who have litigated allegations of CVRA violations and, after receiving unfavorable court decisions, on occasion have been ordered by the court to hold a special elections to refill all seats - that is not the case here.

Under all circumstances, all Governing Board members serve out his or her full terms of office. Specifically, the Education Code contemplated transitions from at-large to by-trustee area elections at Education Code § 5021(a) which states, in pertinent part, that “[i]f a proposal for the establishment [of trustee area elections] is approved . . . any affected incumbent board member shall serve out his or her term of office...”

While draft map options have yet to be prepared by the District’s demographer – which will not occur until community feedback is sought and received at both “pre-map creation” public hearings – it is possible that map options will be drawn with more than one Governing Board member living within a single trustee area. Whether or not such a scenario will exist depends on population density data and the locations of residences of Governing Board members. In such a scenario, if all Governing Board members within a given trustee area have terms that expire simultaneously (i.e. 2022), those members serve their full terms but only one may win re-election from the trustee area within which they reside – or a challenger can prevail in that area’s 2022 election.

Alternatively, a given trustee area may be home to multiple Governing Board members whose current terms have different expiration dates (i.e., one Governing Board member’s term expires in 2020 while another’s expires in 2022). In such cases, once the Governing Board member whose term expires in 2020 will term out in December 2020. Since another sitting Governing Board member will still hold office in that trustee area, the member with expiring term may not run in 2020 for reelection in that trustee area. He or she is permitted to run in 2022 in that trustee area when that seat is available or may establish residency and become domiciled within a trustee area open for election in 2020.

The transition to a By-Trustee Area Election System requires the Board to consider election sequencing. Not all Board member seats will be up for election at the same time. For Fremont Unified School District, three seats are available in 2020 for election and two seats are available in 2022. When multiple Board members reside in the same Trustee Area, at least one created Trustee Area will be “vacant” of a current Board member at the time a map option is adopted by the District. To determine the sequence of which Trustee Areas are to hold elections next, the Board must follow the guidance of Election Code section 10010(b):

“In determining the final sequence of the district elections conducted in a political subdivision in which members of the governing body will be elected at different times to provide for staggered terms of office, the governing body shall give special consideration to the purpose of the California Voting Rights Act of 2001...and it shall take into account the preferences expressed by members of the districts.”

The purpose of the CVRA is to increase the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election. As such, the Board intends to select the trustee areas that have the highest percentages of eligible voters (also known as Citizen Voting Age Population or CVAP) of members of protected classes to be first available to hold elections. The Board will only be able to make this determination after holding its pre-map public hearings where it will review the District demographic data and community input and upon the creation of draft map options by the District’s demographer.

Notwithstanding the Board’s preference for election sequencing, Education Code section 5021(a) authorizes the County Committee on School District Organization to “determine by lot the trustee area from which the nomination and vacancy on the governing board shall be made.” In other words, the County Committee on School District has the authority to determine the Trustee Areas eligible for the next vacancy by lot.

The purpose of these public hearings is for community members and the Board to comment on the potential composition of Trustee Areas. In practicality, the Board will open the public hearing and the demographer and legal team will briefly explain the process and describe the type of feedback being sought at this stage.  Within the process the demographer and legal team will prepare examples, such as “I would like to keep Neighborhood X and Neighborhood Y in the same trustee area…” or “I think – Interstate 680, Auto Mall Parkway, Freemont Boulevard, etc. – may make sense as a trustee area boundary because it makes sense geographically or seems like a natural boundary.”   

When the presentation concludes, members of the public can approach the podium and comment.  At this stage, it is not uncommon to receive questions about the process as opposed to actual feedback.  Usually, once draft maps are released to the public there tends to be an uptick in public participation.

After these public hearings, the demographer will take that feedback and prepare legally permissible maps that attempt to take that public feedback into consideration while still balancing population and other factors.

Once the map options are created, community members may state preferences, or submit comments or questions to the District and/or comment during public hearings.

Adjustments to the By-Trustee Area maps would need to be considered and adjusted in 2021 based on the 2020 U.S. Census data results.

Following each decennial federal census, Education Code 5019.5 specifically requires school districts with trustee area elections to adjust boundaries of any or all trustee areas of the district to ensure that one or both of the following conditions is satisfied:

(1) The population of each area is, as nearly as may be, the same proportion of the total population of the district as the ratio that the number of governing board members elected from the area bears to the total number of members of the governing board.

(2) The population of each area is, as nearly as may be, the same proportion of the total population of the district as each of the other areas.

(Education Code section 5019.5(a).)

The District is required to make any such adjustment by the first day of March of the year following the release of the new decennial census data.  Therefore, the most recent (2010) census is used for the 2020 election but, depending on potential population growth and movement depicted via the 2020 census, the trustee area map lines may need to be adjusted to achieve equal population in advance of the 2022 election.

There is a limited, 25 day window for candidates to file declarations of candidacy with the County Registrar to run for office. There is a limited, 25 day window for candidates to file declarations of candidacy with the County Registrar to run for office. This narrow window opens 113 days prior to the election and closes 88 days prior to the election. If no qualified candidate emerges from a Trustee area up for election, the Board may appoint to fill the vacancy from a resident of that Trustee area.

Unlike ordinary appointments, according to Education Code section 5326, if no candidate has been nominated by 83 days prior to the election, the Board is authorized to appoint a qualified person to the Board. Such appointment must occur at a Board meeting prior to election day and the appointed member will be "seated" to the Board at the organizational meeting. Unlike, most vacancies, vacancies and appointments due to failure to elect result in the appointee serving "as if elected" – for the full term. (Education Code section 5328.)

The District's Board Bylaw ("BB") No. 9223 (Filling Vacancies) describes the process for finding qualified candidates to appoint. Specifically, the District is required to advertise in the local media to solicit candidate applications or nominations and a committee consisting of less than a quorum of the Board shall ensure that applicants are eligible for Board membership and announce the names of the eligible candidates. The Board shall interview the candidates at a public meeting, accept oral or written public input, and select the provisional appointee by a majority vote. (BB No. 9223; see also Education Code section 5328.5.)

In sum, should no qualified candidate emerge, starting at the close of business on the 83rd day prior to election day, the District will begin to advertise the open seat within the relevant Trustee-area and form a committee of less than a quorum of the Board (2 Board members). Importantly, the appointee must be eligible for office and reside within the specific vacant trustee area. The appointment must be made at a Board meeting prior to election day. The appointed member will serve as if elected in the general election – for four years.

Pursuant to Education Code section 35012, the default number of trustees for a given school district is five.  In certain circumstances, a unified school district may be formed with, or increase its number of trustees to, seven members.  Also, elementary school districts with daily attendance of under 300 students are permitted to have as few as three trustees.  While there is a process that permits school districts to move from five to seven or from seven to five trustees, here, the recent and ongoing transition to a By-Trustee Area Election System does not impact the number of trustees representing and governing the District.  Instead, this transition only alters the method by which trustees are elected.  Since FUSD is governed by a five Trustee Board, the draft map options each create five Trustee areas.