Voting rights case appeal to be heard June 30

After granting calendar preference, the 2nd District Court of Appeal will hear oral arguments in a bellwether Santa Monica voting rights case on June 30.

The case was fully briefed and given expedited preference -- meaning a ruling would be made before July 10 to allow the city's fall election to go forward -- but the coronavirus lockdowns delayed a hearing date.

At issue is the California Voting Rights Act of 2001 and whether Santa Monica's at-large voting system diluted minority voting power, resulting in a low number of non-white candidates assuming city offices. Los Angeles County Superior Court Judge Yvette M. Palazuelos ruled that it did following a six-week bench trial in 2018. She ordered the city to revamp its voting structure to a districted system.

The case pits appellant attorneys Gibson, Dunn & Crutcher LLP against Kevin Shenkman of Shenkman & Hughes, a Malibu attorney who has sued municipalities up and down the state regarding compliance with the Voting Rights Act. Most towns and cities have complied following legal warnings, but Santa Monica has fought the case tooth and nail. So far about $21 million in attorney fees hangs in the balance.

Shenkman is joined by R. Rex Parris of the Parris Law Firm. Gibson Dunn partners Theodore J. Boutrous Jr., Marcellus A. McRae and Kahn A. Scolnick round out the city's defense team. They will be arguing that Palazuelos discriminated against minority voters by focusing on candidates' races instead of voters' preferences in her ruling.

"In identifying Latino-preferred candidates, the trial court erroneously examined only Latino-surnamed candidates, precluding the possibility that Latino voters might prefer other candidates," according to Santa Monica's appellate brief. City of Santa Monica v. Pico Neighborhood Association, B295935 (Cal. App. 2nd Dist. Feb. 22, 2019).

One of the respondents, a Latina candidate for city council who said she was unable to get elected because of a discriminatory voting system, is arguing that for more than 70 years Latino-preferred candidates consistently lost to white-preferred candidates. As a result, the city's at-large system produced one elected Latino-surnamed candidate on the City Council, argued Shenkman. This constituted racially polarized voting, when the choice of minority voters consistently loses out to the choice of majority voters based on discriminatory intent, Shenkman argued.

"The evidence showed that meaningful Latino candidates are overwhelmingly preferred by Latino voters, yet Latino candidates almost always lose," according to the respondents' brief.

Gibson Dunn said there was no legally significant racially polarized voting. Since 2002, Latino-preferred candidates won council seats nearly three-fourths of the time, argued the firm.

It's not clear which judges will sit on the panel. Division 8, which will hear the case, consists of Presiding Justice Tricia A. Bigelow and Justices Elizabeth A. Gimes, Maria E. Stratton and John Shepard Wiley Jr. Grimes worked at Gibson Dunn for 18 years, moving up the ranks to partner. She has previously ruled on matters in the case. Stratton was born in Santa Monica and Wiley once taught in the city.