City appeals ruling it must hold district-based elections

In a matter of first impression, the City of Santa Monica is arguing on appeal that a trial judge incorrectly ruled its at-large voting system discriminated against minority voters by focusing on candidates' race instead of voters' preferences.

Gibson Dunn & Crutcher LLP argued for the city in an appeal filed Friday, "In identifying Latino-preferred candidates, the trial court erroneously examined only Latino-surnamed candidates, precluding the possibility that Latino voters might prefer other candidates."

For more than 70 years Santa Monica's city council elections were based on an at-large voting structure, but that changed last year when Los Angeles County Judge Yvette M. Palazuelos ruled the pioneering liberal city violated the California Voting Rights Act of 2001, aimed at protecting minority voting power. City of Santa Monica v. Pico Neighborhood Association, B295935, (Cal. Ap.. 2nd Dist. Feb. 22, 2019).

The plaintiff said only one Latino-surname candidate has been elected to the city council during that time. In her short ruling, the judge ruled Santa Monica violated the Equal Protection Clause of the U.S. Constitution and the voting rights act, ordering the city to switch to district based elections.

Gibson Dunn said in its opening appellate brief with the 2nd District Court of Appeal the judge made her finding narrowly and without evidence.

BOUTROUS

"The trial court's decision and remedy will actually dilute Latino voting strength -- which is precisely the result that the CVRA and other voting rights legislation were enacted to avoid," Gibson Dunn partner Theodore J. Boutrous Jr. said in a statement.

Since 2002, Latino-preferred candidates won council seats nearly three-fourths of the time, according to Gibson Dunn.

Kevin I. Shenkman of Shenkman & Hughes, who litigated the case against Santa Monica, said Latino-preferred candidates consistently lost out to white-preferred candidates.

He said the city will have a hard time bypassing the fact-intensive nature of the claims on appeal.

According to the plaintiff, between 1994 and 2016, all but one Latino candidate most favored by Latino voters lost, making racially polarized voting legally significant. Racially polarized voting occurs when the choice of minority voters loses out to the choice of majority voters, according to the plaintiff's expert witness in the trial. The plaintiff's key witness, a social historian, argued it happened with discriminatory intent.

"It is what the regression analysis shows. If it shows Latino candidates don't favor Latino candidates than we would have a different case," said Shenkman.

SHENKMAN

Gibson Dunn said there was no legally significant finding of racially polarized voting. The firm said a switch to districts will lead to more minority voter discrimination, citing a Los Angeles Times story stating municipalities that switched to district-based elections have not seen an increase in minority representation.

There were too few minority voters in Santa Monica for any alternative election system to increase their voting strength, Gibson Dunn also argued.

The judge's ruling went against city election code requiring hearings prior to a court-imposed change, the law firm's appeal states.

"The CVRA and FVRA serve an important purpose, but without clear standards and judicial supervision, they are subject to misuse and unintended consequences. At-large elections are not per se unlawful or discriminatory, just as districted elections are not necessarily a cure-all for inadequate minority representation in every circumstance," the Gibson Dunn brief states.

The plaintiff's attorneys are seeking $21 million in attorney fees, which will be decided by the trial court after an appeal decision is rendered by next summer.