Tag Archives: California Voting Rights Act

Final thoughts on the voting rights case: there’s no right without a remedy

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To summarize my previous two posts about the California Supreme Court’s decision in the Santa Monica voting rights case, it seems that:

(i) To prove that an at-large voting system unlawfully discriminates against a protected class of voters under the California Voting Rights Act (CVRA), plaintiffs must prove (A) that racially polarized voting exists among both the protected class and the white majority; and (B) that the at-large system dilutes the political power of the protected class compared to what would be the case under a lawful alternative system;

(ii) If the proposed alternative is district elections, plaintiffs do not need to show that protected class voters need to be numerous enough and geographically compacted enough to be collected in a majority or near-majority district;

(iii) A proposed system would not be a reasonable alternative if it reduces the overall electoral power of all members of the protected class, regardless whether they would live within districts established to enhance the voting power of the protected class; and

(iv) Determining whether a valid CVRA claim exists entails a “searching evaluation” of the “totality of the facts and circumstances” in the jurisdiction where the case arises.

If you have read my first two posts on the case, you know that I do not believe, based on the facts and circumstances, that racially polarized voting exists in Santa Monica; and that therefore the Court of Appeal should dismiss the case. Furthermore, even if the plaintiffs can prove racially polarized voting, if the proposed remedy is district elections, then dilution cannot be proved because district elections would weaken the overall political power of Latinos in Santa Monica. If the only possible remedy is districts, then the Court of Appeal should dismiss even if it finds that there is racially polarized voting in Santa Monica.

However, what would be the case if plaintiffs can prove racially polarized voting and there are remedies other than district elections? It is under this scenario, which may or may not be the case in Santa Monica depending on whether there is a finding that racially polarized voting exists, that the court broke new ground and extended the possibilities of the CVRA.

When it comes to remedies for when an at-large system dilutes the political power of a protected class, the CVRA specifically refers to only one, district elections, but it leaves open the possibility that courts can be creative and find others. Here is the language from the statute: “[u]pon a finding of a violation [of the law] the court shall implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy the violation.”

The meat of the court’s decision revolves around the possibility of “tailoring” such remedies. In doing so, the court implicitly shows skepticism that district elections would work in many jurisdictions where majority-minority districts cannot be drawn (even as the court holds that under the CVRA it is not necessary for plaintiffs to show that majority-minority districts can be drawn). As if to counterbalance that skepticism, the court emphasizes the possibility of other remedies that counteract dilution of the protected class’s political power, but preserve at-large voting. (At least as evidenced by this article, the voting rights legal community seems to be seeing this decision by the California Supreme Court as a major milestone in voting rights jurisprudence because of its focus on alternative remedies. The case reminds me of an adage you hear constantly in law school: “there’s no right without a remedy.”)  

The court repeatedly mentions three voting systems that courts might use to remedy voter discrimination: cumulative voting (whereby voters can allocate some or all their votes to favored candidates); limited voting (whereby a voter has fewer votes than there are candidates to elect); or ranked choice voting (voters rank candidates in order of preference, and votes are added to candidates’ totals until candidates achieve majorities).

From the perspective of a potential plaintiff in a CVRA case, the court “taketh away and giveth.” On one hand, the court has made it more difficult to prove discrimination because by making dilution “comparative” it has made proving dilution more difficult, but on the other it has expanded potential remedies to give plaintiffs reasonable alternatives against which to judge an existing system. The court also took a more expansive view of political power, consistent with language in the CVRA, recognizing that the goal of CVRA litigation can be to enhance the power of protected classes through the use of alliances and coalitions even when electing members of the class is problematic, such as in jurisdictions where protected classes are small minorities or dispersed geographically.

While the court pointedly expresses no view about whether plaintiffs in Santa Monica have proven the elements of a CVRA case, and sends that determination back to the Court of Appeal, it seems as if the court is suggesting to the lower court that if it finds those essential elements, it could end the case by imposing an alternative other than district elections.

What about a settlement? This case has gone on a long time and cost the City a lot of money. I suspect that a reform like ranked choice voting would be popular among Santa Monicans. Many of us have been watching how ranked choice voting in places like Alaska has led to more moderate candidates being elected. Perhaps the City could agree to that and settle the case.

There are, however, obstacles to a settlement. One is attorneys’ fees. If the plaintiffs can win the case, proving racially polarized voting and dilution (compared to a remedy), then the City would be on the hook for what are now many millions of dollars in attorneys’ fees. The City is unlikely to agree to pay those fees if it still has a good chance of persuading the Court of Appeal to dismiss the case. There is also the question whether to settle a lawsuit the City can agree to amend its charter, something that would normally require a vote of the people.

For these reasons, I am not optimistic that the case will be settled. The next act of this drama will probably play out in the Court of Appeal.

Thanks for reading.

Next question: does racially polarized voting exist in Santa Monica?

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The next step in an analysis of the California Supreme Court’s decision in the California Voting Rights Act (CVRA) case the Pico Neighborhood Association brought against the City of Santa Monica is to do what the court said was necessary: to undertake a fact-specific and “intensely local” evaluation of (i) whether a violation of the CVRA potentially occurred, and if so, (ii) whether a remedy can be tailored so that the remedy does not make the protected class “worse off.”

To prove a violation of the CVRA a plaintiff must prove (i) that “racially polarized voting” exists and (ii) that an at-large voting system dilutes the votes of a protected class of voters. In the Santa Monica case, the trial court determined that racially polarized voting existed, but the Court of Appeal never evaluated that determination. It dismissed the case without ruling whether racially polarized voting existed because it found that the plaintiffs did not prove dilution and that was enough to dismiss the case. As discussed in my previous blog, the California Supreme Court rejected the Court of Appeal’s interpretation of “dilution,” sending the case back to the Court of Appeal to consider both whether the plaintiffs showed that voting in Santa Monica was racially polarized, and whether, under the standard the court articulated in its opinion, dilution had occurred. Again, plaintiffs need to prove both polarized voting and dilution.

“Racially polarized voting” is a term that the CVRA defines with reference to case law under the federal Voting Rights Act (VRA). This is legislative malpractice: appellate decisions themselves need to be interpreted and case law changes. The legislature could have done everyone a favor by defining the term in the text of the law itself. I am not an expert on that VRA case law and therefore if you skip the next section of this blog, go ahead, as my views might have nothing to do with how the Court of Appeal will analyze the issue. However, I have been a close observer and participant in Santa Monica politics for more than 30 years and I can say with confidence that racial and ethnic identities play a minor role in Santa Monica elections.

Over the past 40 years many Latinos have been elected to office in Santa Monica. True, as the plaintiffs pointed out in their pleadings, until recently few had been elected to the Santa Monica City Council, but many had been elected to the boards of the school district and Santa Monica College. The frequent election of Latinos began when Santa Monicans for Renters Rights (SMRR) began running slates of candidates in the 1980’s. SMRR’s inclusionary tactics were a great example of how political communities (not only racial or ethnic communities, but also communities of interest, such as renters) that might not be able to win elections on their own can do so if they form alliances. This use of “crossover” voters is something that the court in its decision referred to as a reason not to require majority-minority districts in the definition of “dilution,” but crossover voting and coalitions also bespeak a lack of racially polarized voting, because coalitions prioritize issues.

A great example of the power of alliances in Santa Monica is the career of City Council Member Oscar de la Torre, who is, incidentally, the husband of Maria Loya, one of the plaintiffs in the current case. De la Torre was elected many times to the school district board as a SMRR-endorsed candidate. He ran for City Council in 2016 without SMRR support and lost. In 2020, however, after making new alliances, and joining the “Change Slate,” he won. So, tell me: when De la Torre won election to the school board with SMRR backing, voting in Santa Monica was not racially polarized; when he lost for City Council without SMRR backing, voting was polarized; but then when he won as part of the Change Slate, voting was not polarized?

Alliances with non-Latino voters have enhanced the power of the Latino community. These alliances were effective because Latinos, like all Santa Monicans, get to vote for all seven councilmembers. Candidates wherever they live need to pay attention to the needs of the Latino community.

De la Torre himself became a power broker in SMRR, bringing groups of constituents to the SMRR conventions to vote on endorsements. They were joined by other heavily Latino organizations, most notably the hotel workers union, Unite Here. SMRR-dominated city councils adopted policies that reflected these constituencies. Rent control and other tenant protections, such as anti-Ellis Act laws, benefited Latino renters. Pro-union policies benefited Latino workers. Support for affordable housing benefited Latino working families. Social and after-school programs, a new branch library, and new parks in the Pico Neighborhood; these and other progressive policies came about because of liberal coalition politics.

The Latino community in Santa Monica is itself divided over the same issues that divide the city as a whole: development, housing, homelessness, crime, etc. Arguably De la Torre became electable to City Council when he dropped his anti-police politics and joined the law-and-order Change Slate. De la Torre’s ethnicity didn’t change, only his politics. Not long before the 2020 election he received a late but timely endorsement from the anti-development group Santa Monicans for a Livable City when he expressed opposition to the proposed development at Fourth and Arizona and to development agreements.

To show in a voting rights case that racially polarized voting exists plaintiffs need to show that it exists in both directions, among the protected class and among the white majority. Anyone who has observed (or participated in) Santa Monica politics knows that the majority white population is (often bitterly) divided, and not over racial or ethnic issues.

Again, I don’t know if my practical analysis of Santa Monica politics would necessarily persuade a court looking at VRA precedents that racially polarized voting does not exist as a matter of law in Santa Monica. But a determination that there is racially polarized voting in Santa Monica would elevate form over substance.

If plaintiffs can prove the existence of racially polarized voting, then that brings on the second element that plaintiffs in a CRVA case need to prove: dilution. For reasons discussed in my previous blog, dilution requires that the remedy, the alternative to the existing system, must not make things worse for the protected class overall. (Remember, dilution “compared to what?”)

Whether this problem with the remedy would exist depends, needless to say, on the remedy. The CVRA case in Santa Monica has been all about replacing the at-large system with districts. With respect to districts, the court held that if the proposed remedy is to convert an at-large electoral system to districts, the plaintiffs “must show not merely that the protected class would have a real electoral opportunity in one or more hypothetical districts, but also that the incremental gain in the class’s ability to elect its candidate of choice in such districts would not be offset by a loss of the class’s potential to elect its candidates of choice elsewhere in the locality.” (Emphasis added.) This is particularly relevant in a jurisdiction like Santa Monica where the population of the protected class is a small portion of the whole. If you concentrate that population in one district—in Santa Monica, one of seven—the protected class will lose power in the other districts given that candidates will have many fewer constituents who are of the protected class.

Under the best district map the plaintiffs could come up with, most Latinos in Santa Monica would live outside the “Latino district.” Meaning that to give a minority of the city’s Latino population the ability to vote for one councilmember every four years in one district where Latinos comprised 30 percent of voters, they and all other Santa Monica voters, including all other Latino voters, would lose the right to vote for seven councilmembers over two election cycles. Would this be a fair trade? A trade that increases Latino voting power?

There is no way that district elections will enhance Latino electoral power in Santa Monica. However, the court’s decision emphasized the availability of other remedies besides districts. Looks like I’ll need a part 3 to discuss the implications of those possibilities.

Thanks for reading.

Santa Monica and the California Voting Rights Act: the case continues

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The California Voting Rights Act (CVRA) case brought by lawyer Kevin Shenkman on behalf of plaintiffs the Pico Neighborhood Association and Maria Loya against the City of Santa Monica has been in the courts for seven years. The long-anticipated decision this week by the California Supreme Court did not end it. While the court reversed the lower appellate court’s ruling in favor of the City, it also rejected the plaintiffs’ interpretation of the CVRA. The court therefore neither reinstated the trial court’s decision in favor of the plaintiffs that called for splitting Santa Monica into seven city council districts nor affirmed the dismissal of the case by the Court of Appeal. Instead the Supreme Court told the Court of Appeal to reconsider the City’s appeal based on the court’s decision interpreting crucial language in the CVRA. The court did not send the case back to the trial court for additional proceedings.

From reading the opinion it seems clear that the Supreme Court had to take the case because the court had never explicated the CVRA. Many CVRA cases have been brought, often by attorney Shenkman, against cities with at-large elections, but Santa Monica was the first with the resources and the will to defend its at-large system. Like it or not, this was the first opportunity the California Supreme Court had to interpret the CVRA; in the court’s words, the case presented definitional questions that were “a pure question of law that we review de novo.”

The CVRA uses terms that it did not define, and the meanings of those terms were particularly ambiguous because of overlap with provisions of the federal Voting Rights Act. Specifically, there were three terms that the court said it needed to interpret: (i) “dilution,” and the ability (ii) “to elect candidates of [a protected class’s] choice” or to (iii) “influence the outcome of an election.” The terms are used in this provision of the CVRA: “An at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class.” The court disagreed with both the plaintiffs and the City when it came to defining these terms.

The disagreement with the plaintiffs was over dilution. Plaintiffs contended that to prove dilution of voting rights, they only needed to show the existence of racially polarized voting. (“Racially polarized voting” is a defined term in the CVRA; for now just consider it to mean that voters both within and without a protected class vote in accordance with racial or ethnic categories—think Mississippi, for instance. Under the CVRA, a finding of racially polarized voting is a prerequisite for a court to order a remedy such as district elections.) The court did not agree. The court ruled that in addition to showing racially polarized voting, to prove dilution plaintiffs need to be able to compare the existing system to a benchmark consisting of an achievable alternative. In other words, dilution is not an absolute: it is always, dilution compared to what? The court said that dilution under the CVRA cannot be proven unless plaintiffs can identify a “reasonable alternative voting practice.” The court did not accept the trial court’s decision to impose districts as such an alternative.

However, the court did not agree with the Court of Appeal’s definition of the ability “to elect candidates of [the protected class’s] choice,” and thus reversed that court’s dismissal of the case. The Court of Appeal’s mistake was to apply the standard the U.S. Supreme Court has applied to the federal Voting Rights Act (VRA). This standard requires that if plaintiffs want to dismantle a voting system that dilutes a protected class’s voting power with districts (or redrawn districts), they have to show that the protected class is “sufficiently large and geographically compact” to make up a majority in a voting district—a so-called majority-minority district. This is something the plaintiffs in Santa Monica could not do. The Latino population in Santa Monica is only 14 percent of the whole and it is distributed widely enough so that the highest concentration that could be achieved in a district was 30 percent.

However, the U.S. Supreme Court rule for the VRA does not apply to the CVRA, which explicitly states that geographic compactness is not necessary to prove a violation (although it may affect the available remedies). The California Supreme Court ruled that the Court of Appeal erred not only because the CVRA explicitly dispensed with the majority requirement, but also because the CVRA applies specifically to at-large, non-partisan elections, where candidates are often elected with less than a majority. (As has often been the case in Santa Monica.) The court pointed out that notwithstanding that the parties in the Santa Monica case had focused on district elections, the trial court had found that there were alternative voting systems other than district elections available to “enhance Latino voting power.” Specifically these alternatives were cumulative voting, limited voting, and ranked choice voting. None of these systems require a straightforward majority vote for a candidate to win, and therefore the court held that importing the VRA’s majority-minority requirement was not appropriate under the CVRA. (Note that district elections, typically after a top-two primary, usually require a majority to win election.)

The court’s analysis did not end, however, with its finding that the Court of Appeal applied the wrong standard on the majority-minority question. In fact, that is where the court began its analysis of how to apply the CVRA, because that is where the court began to connect dilution (remember, “compared to what”) with the ability to elect candidates or influence the outcome of elections. The court held that while plaintiffs do not need to show the VRA standard of a majority-minority district, plaintiffs have the “burden” to identify a proposed lawful alternative system that creates the potential to elect candidates and improve a protected class’s overall political power. While there are various ways to show this potential, the court emphasized systems like cumulative or ranked choice voting. According to sources the court cited, these systems have the potential to allow communities to elect representatives with less than a majority of votes.

The court ruled that to determine these potentialities, and any potential remedies, courts had to appraise the specific facts and circumstances present in a given locality. These include not only the number of voters in the protected class, but also the potentiality for forming alliances with “crossover voters,” and whether there is in fact racially polarized voting.

In a “part 2” to this blog later this week, I’ll consider how the facts and circumstances in Santa Monica might be thus analyzed.

Thanks for reading.

To district or not to district

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The three Santa Monica City Council incumbents who were defeated in the recent election opposed district elections for the council and supported the City’s defense against the lawsuit to bring district elections to Santa Monica. According to an article in the Lookout, their replacements, who include Oscar de la Torre, one of the original plaintiffs in the lawsuit, support district elections. That raises the question whether there might now be four votes on the council to abandon the defense against the lawsuit and agree to a settlement that would include district elections.

To give a brief procedural history, the plaintiffs, who brought their suit under the California Voting Rights Act (CVRA) in early 2018, won in trial court, and the judge ordered district elections that included a Pico Neighborhood district (see map). The City appealed, and the decision was overturned. The plaintiffs have now appealed to the California Supreme Court and briefs are scheduled to be filed in December.

The Pico district ordered by the trial judge.

I hope the City Council does not settle, as I don’t believe district elections would increase the political power of Latinx residents and other historical minorities in Santa Monica.

As I wrote in 2018 not long after the litigation had begun, “usually I’m in favor of district voting, so long as there isn’t gerrymandering, not only because it can diversify who is elected, but also because it’s easier for candidates to run in smaller districts.” But what I wrote then to explain why I didn’t believe districts would be a good idea in Santa Monica still holds:

“Why [not]? Because those same council members who get elected over and over are so paranoid about not being reelected, that they try to please anyone who votes, and that includes, for all of them, residents of the Pico Neighborhood. In that sense, the neighborhood is well represented. And, if you include the school board and the college board along with the council, we have a good record of electing minorities. As a result, I don’t see the logic for the lawsuit, although if districting comes, it would make it less expensive and easier for new candidates to run, which would be a good thing in and of itself.”

Moreover, since I wrote that, in the course of the litigation, it has become apparent that because of the demographics and housing patterns of Santa Monica districting here won’t, or can’t, solve the problems that the CVRA was enacted to solve. It has also become apparent, ironically, that the current system does not prevent members of historic minorities from winning election. Not only did De la Torre win election, but Christine Parra, who is Latina, did also. Meanwhile, Kristin McCowan, who is African-American, won in the election (albeit one that was uncontested) for the balance of former Council Member Greg Morena’s term. (McCowan had been appointed this summer to replace Morena).

Using districts to remedy voting discrimination against minority populations works in jurisdictions where residential segregation is extreme and where the majority population has used at-large elections, or other means, to dilute minority voting power. Santa Monica does have a history of residential segregation. As a result of that history, few African-American and Latinx residents live north of Santa Monica Boulevard (and to a lesser extent south of Pico Boulevard). However, reflecting the relatively low percentage of historic minority residents in Santa Monica (about 16% of Santa Monica residents are Latinx, 10% Asian, and 5% Black), a lot of Anglos also live south of Santa Monica Boulevard, including in the Pico Neighborhood.

As a result, in the course of the litigation it proved impossible to create a district map by which a majority of Latinx residents could be grouped in one or more districts that were even substantially Latinx. The best district the plaintiffs came up with would be about 30% Latinx, but a majority of the city’s Latinx residents would still live outside the district.

There was a lot of discussion in the Court of Appeal ruling about whether a non-majority Latinx district could be a suitable remedy under the CVRA for discrimination against minority voters, and the plaintiffs have appealed on the grounds that it should not be necessary under the CVRA to have a majority-minority district. To me, however, that discussion skips the primary question; namely, what happens to the voting power of the majority of Latinx residents not included in the “Latinx district”?

The plaintiff’s remedy, districts, would put a lot, but not a majority, of Latinx residents in a district where they theoretically would have more power and representation in one election every four years. Meanwhile a majority of Latinx residents (along with all other voters in the city) would lose the right every two years to vote for four or three council members. How would that increase Latinx voting power? A minority of Latinx voters would trade the right to vote for all council members for a somewhat better chance of electing a Latinx candidate in one district, but the majority of Latinx voters would lose the right to vote for all council members while getting nothing in return.

Meanwhile, five or six council members would be elected from districts with very few or nearly no Latinx or African-American voters. What would that do to the political power of historic minorities in Santa Monica? On a national level it has been recognized for some time that the creation in the South of districts that enabled the election of African-Americans, while necessary given the historic realities of Jim Crow and the post-Reconstruction denial of the right to vote, has also led to gerrymandering (“packing and cracking”) that has isolated Black political power and enabled right-wing dominance.

There are arguments in favor of districts that are unconnected to the voting rights of historic minorities. I have friends who believe that they would be better represented by having a representative from their own neighborhoods. They believe district representatives would be more accessible and responsive. As I wrote in 2018, it’s easier to run for office in a small district. Certainly, at some point jurisdictions get so big that the only viable structure is to have representatives from districts.

But there are downsides. Think of the City of Los Angeles, where each council member rules his or her fiefdom (each of which has nearly three times the population of Santa Monica), and any action at the City Council level, including every major development, requires horse trading among the council members. It’s been almost impossible to have citywide planning.

If a jurisdiction has districts, the public needs an elected strong executive so that someone represents everyone, as a whole. Perhaps Santa Monica is big enough for an elected mayor, and as I wrote recently, there is an accountability problem with the city manager system, but that’s a major political issue all by itself. (I want to mention in fairness to De la Torre that he himself has recognized this issue and the need for an elected mayor if we go to districts.)

I hope that before the new council members vote to settle the lawsuit, they reflect on whether they were elected to take away the right of all Santa Monicans, including a majority of Latinx residents, to vote for all seven seats on the City Council.

Thanks for reading.