Tag Archives: Santa Monica district elections

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.