The LA Court of Appeal issued a published appellate victory for the City of Santa Monica in its effort to avoid being compelled to elect its Council from districts under the California Voting Rights Act. It is the first city to win such a victory and it did so at great expense — the plaintiffs’ fee claim in the trial court was for $22 million. The City hired high-profile litigator Ted Boutrous, the winner of Hollingsworth v. Perry, the federal challenge to Proposition 8, which invalidated gay marriage in California, and his fees were likely measured in millions of dollars, too.

The case is not over yet. A petition for review by the California Supreme Court is likely, especially given the investment in the case by the plaintiffs’ counsel, who has made quite a livelihood in enforcing the CVRA in recent years, and the coalition of plaintiffs’ counsel who joined in his appellate brief.

But for now, Pico Neighborhood Association v. City of Santa Monica is the law, holding that the CVRA allows a court to impose district-based voting on a California city or special district if five things can be proven:

  1. The plaintiff is in a “protected class” — as defined under federal civil rights statutes;
  2. The plaintiff is a resident of the city or district she sues;
  3. The city or district uses at-large voting for its governing body;
  4. Racially polarized voting occurs (i.e., members of racial groups tend to vote for candidates of their group and not for candidates of other racial groups which, sadly, is very common in America); and,
  5. The use of at-large voting serves to dilute the votes of the plaintiff and the group for which she speaks.

The first three were admitted here – the Pico Neighborhood Association and the individual plaintiffs represent Latinx residents of Santa Monica and the City elects its seven-member Council at large. The fight in the trial court was over racially polarized voting and vote dilution.

What a trial it was! It lasted from August 1 to September 13, 2018, including 24 days of testimony from seven expert witnesses and nine fact witnesses. It reviewed the demographics of the City, the successes and failures of Latinx candidates for the School Board and City Council, noting the City had two self-identified Latinx Councilmembers at the time of trial, one of whom has an Anglo name. The trial court issued a terse tentative ruling for the plaintiffs, ordered their counsel to draft her statement of decision (as the Rules of Court allow) and ordered the City to conduct district elections using the map the plaintiffs proposed. The City pointed out the plaintiffs had drawn only one district — centered on the Pico Neighborhood which would have a 30% Latinx electorate (as opposed to the Citywide figure of 13.64 % citizens of voting age). So, the court ordered the plaintiffs to draw seven districts and ordered the City to use them.

The City appealed and obtained an order of the appellate court staying enforcement of the trial court judgment pending appeal. The appeal was very thoroughly briefed, with four amicus briefs — two on each side of the case — as well as the parties’ briefs, written by seven and 13 lawyers, respectively. The Court of Appeal heard oral argument on July 1st and issued its decision on July 9th — fairly quickly by appellate court standards. It also gave the parties advance notice of its tentative ruling, not yet a common practice in California’s appellate courts.

The Court reasoned the plaintiffs had failed to prove the use of at-large elections diluted the Latinx vote in Santa Monica because the best district plaintiffs could draw for this community still achieved only 30% of the population — not a so-called “majority-minority district,” a requirement of litigation under the Federal Voting Rights Act, but not previously understood to be required under the CVRA. This reasoning has been criticized by a law professor’s blog as ignoring the significance that a large cohesive minority can have if other voters in a district are divided on partisan or other grounds. The Court read the CVRA also to require a plaintiff to propose a baseline against which dilution can be measured. When a jurisdiction goes from districts to at-large voting (which has been used to disadvantage minority voters in America) the baseline is the previous districts. Given that at-large voting was once the norm in California’s local governments, plaintiffs have to propose one or more districts that would better represent a  minority community when they challenge at-large voting not preceded by districts.

The Court critiques the plaintiffs’ arguments as making an uneven playing field: “To define ‘influence’ as Pico proposes would merely ensure plaintiffs always win.” This understanding of the CVRA is why few California local governments have prevailed in court and why few have even litigated in recent years. [Disclosure: CHW advises local governments in CVRA matters and some of its clients chose to avoid litigation by adopting districts.]

The opinion is full of useful holdings of interest to appellate lawyers and characterized by its author’s crisp writing style. It also concludes the plaintiffs had not proved the City intentionally discriminated against racial and religious minorities when it established at-large voting in 1946  as part of the Progressive Movement’s push for the council-manager form of government in response to corruption in other American cities or when the City refrained from changing its at-large system after study in 1992. The opinion also lays out the pros and cons of at-large and district voting, such as better neighborhood and minority representation versus the risks of gerrymandering, parochialism, and a loss of citywide perspective in policymaking.

Some of Santa Monica’s facts help explain the conclusion. The plaintiffs included a Latino member of the Santa Monica-Malibu Unified School District Board elected and reelected from 2002 to 2018 and the City Council had two Latinx members at the time of suit and a Latino member in 1992 when the City determined not to abandon at-large voting as well as an Anglo Councilmember from the Pico Neighborhood at the time of suit (and at present). These facts suggest that both Latinx voters and residents of the Pico Neighborhood have had electoral success in Santa Monica.

So, what does this mean for other California local governments? In the short run, it is good news for local control of election procedures, but it is probably too soon to revert to at-large voting if your community adopted districts under threat of suit. First, the California Supreme Court will certainly have a chance to review this case. While it takes only a small fraction of the civil cases presented for review, this case is a better candidate for review than most because it raises an important question of statewide interest, attracted ample amicus support, involves diverse decisions of the appellate courts, and is litigated by able counsel with clients willing to carry the fight to the finish.

Moreover, the Legislature has opportunity to clarify the statute — although it must do so in ways that do not offend the Federal Voting Rights Act or the Equal Protection and other state and federal constitutional rights of all Californians, whether members of federally protected minority groups or not. Still further, the multi-million-dollar cost of Santa Monica’s victory is beyond the reach of many California local governments, which would do well to wait for the dust to settle before considering changes in electoral regimes.

More developments are coming, and we’ll update you when they do!