Gruber : Does Racially Polarized Voting Exist in Santa Monica?


This post first appeared on The Healthy City Local.

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.

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