Panel overturns ruling that Santa Monica's at-large voting system violated law

The City of Santa Monica did not violate the California Voting Rights Act when it used an at-large voting system in city council elections, an appellate panel found Thursday, overturning a trial court's ruling that at-large voting diluted Latino votes.

The ruling is likely to have far-reaching effects, as cities throughout the state have changed their election systems after being sued under the law over the past several years on allegations that their at-large elections inherently diluted the impact of minority voters.

The landmark decision authored by 2nd District Court of Appeal Justice John Shepard Wiley Jr., with Justice Tricia A. Bigelow and Justice Elizabeth A. Grimes concurring, establishes the framework for bringing a claim under the act and proving a particular voting system dilutes a minority vote.

"Dilution requires a showing, not of a merely marginal percentage increase in a proposed district, but evidence the change is likely to make a difference in what counts in a democracy: electoral results," Wiley wrote.

Counsel for the city, Theodore J. Boutrous Jr. of Gibson Dunn & Crutcher LLP, issued a statement praising the panel's findings.

"The opinion correctly finds that Santa Monica's election system complies with the California Voting Rights Act and the California Constitution," Boutrous said. "And the court rejected plaintiffs' contrary theories as 'unprecedented and unwise,' and lacking any legal or evidentiary support."

The Gibson Dunn appeal team included partners Boutrous, Marcellus McRae and Kahn Scolnick and associates Tiaunia Henry and Daniel Adler.

Malibu attorney Kevin Shenkman of Shenkman & Hughes, representing the plaintiffs, the Pico Neighborhood Association and failed city council candidate Maria Loya, called the ruling "disastrous," in a phone interview Thursday.

"This decision, if it stands, would deny millions of Californians their voting rights," Shenkman said. "It might sound like hyperbole, but that's really what we're talking about here."

Shenkman, joined by R. Rex Parris of the Parris Law Firm in the Santa Monica case, 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. Plaintiffs, who were seeking to recover at least $22 million in attorney fees and costs from the city, will now recover nothing, according to the city website.

During the six-week bench trial in 2018, Shenkman argued, among other things, 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.

Los Angeles County Superior Court Judge Yvette M. Palazuelos agreed, and ordered the city to change to a seven-district voting system, which plaintiffs said would help mitigate what they described as a "demonstrated history of discrimination and vote dilution in Santa Monica."

However the city appealed, arguing a lack of successful minority candidates cannot, by itself, show disparate impact, according to Santa Monica's appellate brief. The city argued the judge had erred in presuming Latino voters in every election preferred a Latino-surnamed candidate. City of Santa Monica v. Pico Neighborhood Association, B295935 (Cal. App. 2nd Dist. Feb. 22, 2019)

Agreeing with the city, the appellate panel said, "A proper analysis shows Pico did not prove the city adopted or maintained its system for the purpose of discriminating against minorities," and that plaintiffs failed to demonstrate that a district-based alternative to the at-large election system would necessarily lead to better electoral results for Latino candidates.

As far as the decision's impact on other voting rights cases, "It would have a very significant effect on many cases, not all, but many and that is really unfortunate," Shenkman said.

Shenkman has 30 days to seek rehearing before the opinion becomes final. While he did not directly indicate whether he would seek review, he said, "It's our obligation to make this right, not just as attorneys but Californians, and so that's what we'll do."