Amici weigh in on Votings Rights Act case

Municipalities, council members, and voting advocates have weighed in via amicus curiae briefs on the appealed Santa Monica voting rights decision.

The case, which went to trial in 2018 and ended with a Los Angeles judge ruling that Santa Monica's at-large voting structure discriminated against minorities, is shaping up to be an issue of first impression for the appellate courts.

Santa Monica appealed the ruling, arguing Superior Court Judge Yvette M. Palazuelos incorrectly ruled the city's at-large voting system violated the California Voting Rights Act of 2001. The law's intention was to protect minority voting power and in recent years has spawned a rash of litigation up and down the state, with Santa Monica being one of the few refusing to settle.

Last week, the League of California Cities, which said it comprises 478 cities advocating for open government, and the California Special Districts Association, a non-profit with over 900 members aimed at helping to improve local services to cities, filed a joint brief supporting the city's appeal before the 2nd District Court of Appeal.

The brief states many of the member cities stopped using at-large elections out of fear of being exposed to paying high attorney fees associated with the litigation.

At minimum, the groups said the court had no authority to implement its own district map, arguing there should have been a process for public hearings.

"In ordering the city to implement a districting plan prepared by one of the plaintiff's expert witnesses -- in court proceedings that were not publicly noticed or in which the public was entitled to participate -- the superior court usurped the exclusive role California law gives to governing bodies in overseeing the conversion to district elections," according to the brief filed Feb. 4 by Derek P. Cole of Cole Huber LLP.

The plaintiffs, represented by Kevin Shenkman of Shenkman & Hughes PC, argued the law does not preclude a court's authority. It also said the city didn't propose a districted map despite being ordered by the judge to do so.

"The procedure employed by the superior court was perfectly appropriate -- consistent with the CVRA and the uniform direction from the federal courts: the superior court afforded appellant multiple opportunities to propose a map, and when it failed and refused each of those opportunities, the superior court adopted the map developed by expert demographer David Ely," wrote Shenkman on Feb. 10.

Amici in support of the plaintiff include council members from cities whose voting systems switched to districts as well as the legislative architect of the Voting Rights Act, retired state Sen. Richard Polanco, D-Los Angeles. FairVote, a Maryland-based non-profit that says it advocates for election fairness, also filed a brief in favor of alternatives to the at-large voting system.

San Juan Capistrano City Councilman Sergio Farias, who lost in an at-large election but won a seat and went on to serve as mayor once elections switched to districts, filed the brief. Three council members from the city of Palmdale, which switched to districts after settling a lawsuit, said the change has removed obstacles for Latino participation in elections.

"The CVRA sponsored by Senator Polanco has been largely successful in achieving its purposes -- combating minority vote dilution and making California's municipal governments more inclusive and responsive," according to the brief filed Feb. 4 by Brian Panish of Panish, Shea & Boyle LLP

Gibson, Dunn & Crutcher LLP, which is defending the city, said the trial court's ruling will actually dilute minority voting strength.

"The FairVote and Polanco briefs get wrong the one question they address: whether the city's election system has resulted in the dilution of Latino voting power," wrote Theodore J. Boutrous Jr., attorney for the city, on Feb. 4. "Latino voters are already electing candidates of their choice in Santa Monica. And there is no basis -- in federal case law or the text or legislative history of the CVRA -- for imposing an alternative election system that would not increase, and in the case of the districting remedy ordered by the trial court, likely diminish, Latino voters' electoral strength."

Gibson Dunn partners Kahn A. Scolnick and Marcellus A. McRae also represent the city.

Shenkman has argued only one Latino-surnamed candidate has been elected to the Santa Monica City Council during the 70-plus years of an at-large system. Since 2002, Latino-preferred candidates won council seats nearly three-fourths of the time, according to Gibson Dunn.

In her short ruling, the trial judge ruled Santa Monica violated the Equal Protection Clause of the U.S. Constitution and the Voting Rights Act. A date for oral arguments has not been set.