The following article first appeared on The Healthy City Local.
About a year ago, after seven years of litigation, the California Supreme Court issued a landmark decision in the case the Pico Neighborhood Association and Maria Loya brought under the California Voting Rights Act (CVRA) to challenge Santa Monica’s at-large voting for City Council. This was the first time the state’s highest court had ruled on the CVRA, and the decision clarified the meaning of certain significant undefined terms in the law.
I discussed the case and the court’s decision in detail in three blogs last summer. (Here and here and here.) To summarize, the court made it more difficult for a plaintiff to prove discrimination (i) when it held that plaintiffs must show that a current situation was discriminatory not in the abstract, but in comparison to alternatives, and (ii) because the court was skeptical about the use of new or revised voting districts to remedy discrimination where the population of the protected class is dispersed. The court, however, expanded the potential remedies available to plaintiffs to include remedies not as extreme as districts, so as to give plaintiffs reasonable alternatives against which to judge an existing system.
The court sent the case back, not to be retried, but to the California Court of Appeal for more action. That is where I thought the case would be adjudicated, and hopefully quickly, but the Court of Appeal sent the case back to a trial judge for more fact-gathering. The case’s original judge has since retired, and recently the new judge, Daniel M. Crowley, presided over his first hearing in the litigation.
According to press reports, Judge Crowley urged the parties to settle, predicting that if they don’t, the case will continue for another five to seven years. A sticking point in reaching a settlement is that if the City is found to have been in violation of the CVRA, the City will be obligated to pay the plaintiffs’ legal fees and costs, which according to papers filed in the case already totaled more than $20 million years ago. The City has not disclosed how many millions of dollars it has spent fighting the case, but the legal costs for both sides increase with every motion, every brief, and every hearing.
Given that I believe, as I have discussed in my blogs, that the plaintiffs cannot prove a crucial element in their case, namely that Santa Monica suffers from “racially polarized voting,” and that breaking Santa Monica into districts will not increase Latino voting and political power in Santa Monica), I have always supported the City’s defending the at-large system in court.
My views in favor of the City’s position have been reinforced by the fact that the plaintiffs have demanded, and apparently continue to demand, that the remedy must be to break Santa Monica up into voting districts. Plaintiffs stick to this position even though the California Supreme Court ruled that districts would not be an appropriate remedy in Santa Monica. Districts would not increase Latino voting power, but would mean that every voter here would lose the right to vote for all seven councilmembers over two years. Instead, voters would only get to vote for one councilmember every four years.
Nevertheless, it could be time to reach a settlement. The court decision opened up possibilities for settlement, provided that both sides would be willing to give something up. The court ruled that alternative remedies can be considered in CVRA cases where districts are not an appropriate remedy. These include ranked choice voting (RCV).
What makes sense is for the City to investigate how RCV would work in conjunction with citywide at-large elections. I want to give a shout-out to former mayor Michael Feinstein, a longtime proponent of RCV, for alerting me to an RCV variant called “Proportional Ranked Choice Voting” that has been used in at-large elections, including in voting rights cases. A public process to analyze how RCV would work would allow the public, including the plaintiffs or their supporters, to be informed and to weigh-in. The analysis would necessarily include what would be required legally to institute RCV: for instance would the change require a charter amendment, or could a judge order it? If RCV is workable and popular, then the City, for purposes of settlement and without admitting liability under the CVRA, could include it in a settlement proposal.
Such a settlement would require that the plaintiffs drop their demand for districts, but I hope that they would, given the Supreme Court’s ruling.
The parties would still need to work out a financial settlement over the legal fees. As a taxpayer in Santa Monica, what I would propose is that the City estimate what it would spend on its attorneys over another five to seven years of litigation and offer that amount as a settlement. If I were the plaintiffs’ attorneys, and considering the obstacles they face in the case after the California Supreme Court’s ruling, I would accept it.
Of course, a settlement and what it contains will depend on who is on City Council. The politics of the CVRA case have always been intriguing, particularly after Oscar de la Torre, husband of plaintiff Maria Loya, was elected to the council in 2020 as part of the Change Slate. De la Torre, of course, has always wanted the City to throw in the towel and agree to districts.
One recent news item that caught my eye was that, according to an article in the Lookout, at a Sept. 8 candidate forum all four Change Slate candidates (incumbents De la Torre and Phil Brock, and newcomers Vivian Roknian and John Putnam) indicated that they support changing from at-large elections to district elections. Wow; frankly, given the Supreme Court’s decision on districts, this would be a classic example of snatching defeat from the jaws of victory.
Voters have a lot of reasons for the choices they make when they vote; everyone has their issues and it’s probably usually a mistake to be a single-issue voter. But for me it will be hard to vote for anyone who wants to take away my right to vote for all seven councilmembers, which is what I have under at-large voting, given than my right to do so is not discriminatory. If district elections come to Santa Monica, my right and your right to vote for City Council will be reduced to one vote every four years.
Thanks for reading.
