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

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The following first appeared on The Healthy City Local.

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.

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