Judge orders Santa Monica to hold new city council elections

A Los Angeles County judge has ordered Santa Monica to split into seven voting districts and hold new council elections this summer after finalizing her ruling that its at-large election system discriminated against minorities.

The ruling late Friday by Superior Court Judge Yvette M. Palazuelos says Santa Monica's voting system violated the equal protection clause of the 14th Amendment and the California Voting Rights Act of 2001 because it diluted the Latino vote and produced racially polarized voting since its inception in 1946.

Racially polarized voting is legally defined as occurring when the candidate of choice of a protected class loses out to the candidate of choice of the rest of the electorate. Pico Neighborhood Association v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

July 2 is the date for council elections. One of those delineated districts is the Pico neighborhood, the majority-white area of the city where the Latino neighborhood association that filed the lawsuit is based.

Gibson, Dunn & Crutcher LLP partner Theodore J. Boutrous Jr., who defended the city, strongly disagreed with the judge's ruling and said an appeal is being considered.

He said in a statement Palazuelos' ruling "rubber stamps the plaintiffs' misguided and unsupported view of the law, ignores the history of Santa Monica's election system and the success of minority-preferred candidates in that system, deprives the electorate of any public process for the districts drawn, and violates the federal and California Constitutions."

Palazuelos agreed with the plaintiffs' main expert, social historian Morgan Kousser, who said racially polarized voting occurred during elections between 1994 and 2016. She also said defense expert Jeffrey Lewis stopped short of saying racially-polarized voting occurred, even though the evidence he presented showed it did.

"In most elections where the choice is available, Latino voters strongly prefer a Latino candidate running for defendant's city council, but, despite that support, the preferred Latino candidate loses," Palazuelos wrote.

"As a result, though Latino candidates are generally preferred by the Latino electorate in Santa Monica, only one Latino has been elected to the Santa Monica city council in the 72 years of the current election system -- one out of 71 to serve on the city council," she wrote.

During trial, Gibson Dunn attorneys presented evidence that two Latinos have been members of the city council, including one woman currently on the council and another who was a former mayor.

At trial last year, Gibson Dunn partners Marcellus McRae and Kahn Scolnick argued the city's at-large system actually protected minority rights, pointing out one-seventh of the city council at the time was Latino.

The city counted two Latino candidates, including then-Mayor Pro Tempore Gleam Davis, who is part Latina. Tony Vasquez, a former mayor, has since left the council for the Board of Equalization.

Defense attorneys also contended that since 2002 most Latino-preferred candidates have won seats, an argument Palazuelos rejected, stating courts have held the law is not satisfied if those preferred candidates are not Hispanic. "But that mechanical approach suggested by defendant -- treating a Latino candidate who receives the most votes from Latino voters (and loses, based on the opposition of the non--Hispanic White electorate) the same as a white candidate who receives the second, third or fourth votes from Latino voters (and wins, based on the support of the non-Hispanic White electorate) -- has been expressly rejected by the courts," said Palazuelos.

"Latinos being able to elect a second or third choice as long as they are white is not equal opportunity," said plaintiffs' attorney Kevin I. Shenkman, who has sued municipalities throughout the state over compliance with the Voting Rights Act.

He said an appeal could put the validity of the council up in the air as the judge said its membership will be deemed illegal after Aug. 15.

Gibson Dunn attorneys said only seven Latino council members have gained seats across the 22 cities that have switched to district elections, a figure Shenkman said showed good progress.