Santa Monica tentatively wins reversal of voting ruling

A judge erred when she found the city of Santa Monica's at-large voting structure diluted Latino votes and ordered it to adopt a districted voting system, a 2nd District Court of Appeal panel tentatively ruled Tuesday.

"The second point that the tentative gets absolutely correct is that there is no valid proof of dilution here," Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher LLP argued on the city's behalf during a video hearing Tuesday after the tentative ruling was issued.

"The numbers are simply too small and the population of Latino voting groups is dispersed through the city and there is no proof that any alternative system, including districts, would give Latinos greater power to elect the candidate of their choice," Boutrous continued.

After a six-week bench trial in 2018, Los Angeles County Superior Court Judge Yvette Palazuelos agreed with plaintiffs from the Pico Neighborhood Association that the city's existing at-large voting system diluted Latino votes. The judge then ordered the city to change to a seven-district voting system to help remedy what plaintiffs described as a "demonstrated history of discrimination and vote dilution in Santa Monica."

However the city appealed, arguing among other things that in identifying Latino-preferred candidates, Palazuelos 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).

Attorneys for one of the named plaintiffs, Maria Loya, a Latina candidate for city council who failed to get elected in 2004, argued that for more than 70 years, Latino-preferred candidates consistently lost to white-preferred candidates because at-large voting systems dilute a predominantly minority occupied district's voting impact.

Representing Loya and the Pico Neighborhood is Malibu attorney Kevin Shenkman of Shenkman & Hughes. He said rather than taking a solely statistical approach, the appellate court should, as the trial court did, take a fact intensive approach in determining whether there is a remedy to lack of Latino representation.

"I think the strongest evidence here is that if you look at past elections [a change to district voting] would have made a difference," Shenkman said Tuesday. "Not just the ability to influence but the ability to elect; that Maria Loya, the Latina preferred candidate, would have been elected."

Shenkman has sued municipalities up and down the state regarding compliance with the California Voting Rights Act of 2001. Most towns and cities switched to district voting or put up only nominal resistance 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.

Along with Boutrous, representing Santa Monica are Gibson Dunn partners Marcellus A. McRae and Kahn A. Scolnick.

The 2nd District panel included Justices Tricia A. Bigelow, John S. Wiley Jr. and Elizabeth A. Grimes.

After Shenkman concluded, Wiley praised him, calling his argument "excellent." However the panel did not indicate it planned on changing its tentative ruling.