So how does a patent attorney with no background in election law become one of the driving forces behind a push in Orange County and throughout California to force more minority representation on city councils and school boards?
Pretty much by chance, says Kevin Shenkman, the Malibu-based attorney who in recent years has joined a small cottage industry of lawyers and advocacy groups suing jurisdictions under the California Voting Rights Act of 2001, which makes it easier for minority groups to prove they are disenfranchised under at-large electoral systems.
After starting his firm in 2011, Shenkman got a call from Darren Parker, who was at the time the chair of the state Democratic Party’s African-American caucus. Parker asked him to bring a case against the city of Palmdale in Los Angeles County, which despite being a place where people of color make up 75 percent of the population, had an all-white council save for one Latino.
Following a three-year court battle, Shenkman and his firm, Shenkman & Hughes, won a $4.5 million settlement that required Palmdale to switch to a district-based system that gave minority residents far better representation. Palmdale will hold its first election under the new system this November.
Since then, in Orange County alone Shenkman has played a central role in forcing district-based elections or ballot measures for the election in November, in city councils and school boards in several jurisdictions. They include school boards and city councils in Buena Park, Costa Mesa, Garden Grove and San Juan Capistrano.
While he has gained notoriety and many fans in progressive circles, Shenkman is not without his critics, who wonder whether the boom in voting rights cases is about race and the disenfranchised, or about shaking down local governments for easy money.
We sat down recently with Shenkman to talk about his advocacy work and how he thinks district elections will change local politics in California.
This interview has been condensed and edited for length and clarity.
Why do you like going after Voting Rights Act cases –- what’s the significance for you?
It was really stunning to see the contrast in Palmdale between west of the 14 Freeway and east of the 14 Freeway It has a lot to do with the way the city council was elected – all of them [lived] on the west side, they have no reason to go on the east side. They could spend their entire lives without ever seeing how two thirds of the city lives.
There are all these subtleties about race. In Compton, where there was a lawsuit on behalf of Latino residents challenging a historically African-American city council, there was controversy over whether Councilwoman Janna Zurita “counts” as Latina. How do you navigate that?
It’s really not so much about the ethnicity of the councilmember, or the candidate. I will say, I think there’s some importance to that as well. You see it more often in school districts. I was just talking with someone in a school district where my kids go, the Santa Monica-Malibu School District, about how there is such little diversity in the administration. If I’m a five-year-old Latino boy going to kindergarten and I see my principal is white, all the teachers are white, and the only person who looks like me or speaks the language my parents speak is the janitor? That sends a message. I don’t want to say how the council looks is not important in any way, but it’s much less important than whether those council members are the choice of the minority community. For example, Ken Hahn ran for [Los Angeles County] supervisor [and] continued to win against black opponents in a majority black district, and he was always the preferred candidate, election after election. That’s a rare exception, but we’re not saying the council needs to look a certain way.
If you have an at-large election, even if [a candidate] starts out as saying they care about those the issues affecting [a minority community], they’ve got to run for re-election. And they understand that the Latino community in most of these parts do not have the voting power to keep them in office. So, they tend to get away from issues that concern that community and it’s more about, I need to run in the next election, raise $100,000 to do it, and where am I going to get it? Or who is going to show up in large percentages to vote? Usually not the Latino community.
Some residents who are concerned about the effect of district elections on their government get upset about all the other things that happen – or don’t happen – in local politics. Who is voting, who isn’t voting, who doesn’t show up to city council meetings. Where does this law fit in?
The California Voting Rights Act [CRVA] just deals with a single issue, a combination of at-large elections and racially polarized voting. So there’s only limited tools that we [attorneys] have. I’m not a community organizer, I’m not a group like LULAC [League of United Latin American Citizens], a public interest advocate for certain positions. The CVRA is a tool – it can change the election system so everybody has an opportunity to vote for the candidate of their choice.
What do you think about the argument that Latinos should simply vote more?
Well, we all should vote. That’s great. And maybe there should be compulsory voting […] but the problem with that is it’s a cycle. If I don’t think my vote is going to translate into representation, why am I going to take the time to do it? if you have a sense of futility, it drops turnout. The courts have recognized that […] one way to increase turnout is to get rid of that sense of futility.
How do you find your plaintiffs?
We don’t. We get so many calls…probably ever since the Palmdale case started hitting the press. Most of them we end up deciding that it’s not a good case. We also work with the Southwest Voter Registration Education Project – it is the largest and oldest Latino voter registration nonprofit in the country. And they’re probably the only ones that have been successful at improving Latino voter registration and participation.
The three years you spent fighting the Palmdale case, that’s enormously expensive in terms of attorneys’ fees. Can you talk a bit about –
How I couldn’t pay my mortgage? It wasn’t what I expected — but once we got involved, we were going to stick with it…and at some points, I was not paying my mortgage in order to pay the experts. And the court reporters’ fees, and other stuff. Hundreds of thousands of dollars in out-of-pocket costs. It seemed like all of my other work was going to support that case. It worked out really well, I’m not complaining about the financial result. But it’s unfair to focus on the result without looking at the process to get there. And whether other people are crazy enough to do that.
How do you feel about criticism of how much money you make pursuing these cases?
The issue of money, that seems to be the next reaction. In Palmdale, first the argument was ‘this case is frivolous.’ Then they started losing in summary judgment, in trial – then it turns into this line about ‘it’s not white black or brown, it’s all about green.’ Well, if you didn’t fight to begin with, you wouldn’t be betting green. There’s these stories in San Juan Capistrano that I’ve made 15 million dollars off these cases…I don’t know where those $15 million are, but I don’t have it. If the city does the right thing and they stop violating the law I don’t make a penny.
The city attorneys – they get paid too. They get paid when they lose, I don’t.
Do you have any moral dilemmas about making your living this way?
Yes and no…I would consider before I write a letter or file a case, is this going to, in the long run, benefit that city or school district? Maybe Palmdale is the best example. They ended up spending $7 million on that case, between the 4.5 they had to pay me and my colleagues and our experts, and probably another 2.5 they paid their own attorneys and experts. That’s probably a pretty good investment for that city, because with the change in the representation, the eastern two-thirds of the city will suddenly start getting their due attention and fair share of resources. So on the whole, that’s probably money well spent.
There’s a perception, especially among critics of district elections, that this is sort of cottage industry, and you and other attorneys are taking advantage of easy targets and extorting cities out of money.
That’s all true – I’m serious, it is a cottage industry. The only reason is because it’s so specialized that no one will get involved. I was the only one who was crazy enough to not know anything and jump into it. There’s only a couple people who did this stuff before the CVRA. And then taking advantage of easy targets — yeah. There are a lot of easy targets, but they should change. If they change their election system, I wouldn’t need or have the opportunity to sue them. There’s always going to be someone else. And if not, great, I’ll go do some area of law.
What’s the reaction you get when you first approach a city or school district? Do a lot of governments mount as large an effort as Palmdale?
I think that reaction is changing. Not out of altruism or sense of wanting to follow the law, but out of learning, well we don’t want to do what Palmdale did, because that didn’t work out for them. The initial reaction is to say “we’re not racist.” In most instances, we’re not claiming anybody is racist. It’s just a system of election violates the law. In most instances, cities don’t even recognize this is an issue. Why would it be an issue?
Hemet, Wildomar, Hesperia, Upland – they all switched without lawsuits just based on a letter. Others will want to put it on a ballot measure. In some instances, that’s appropriate and some not so much…I think there’s some democratic benefit of having it approved by voters of the municipality.
Correction: A previous version of this article incorrectly identified Darren Parker as a member of the state Assembly. We regret the error.
Contact Thy Vo at tvo@voiceofoc.org or follow her on Twitter @thyanhvo.