Plaintiffs file state high court brief in Santa Monica voting case

With a chance to overturn an appellate ruling at the California Supreme Court, a neighborhood association suing Santa Monica over its city-wide voting system has filed a brief answering the court's question: "What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?"

The Pico Neighborhood Association and failed city council candidate Maria Loya, represented by Malibu attorney Kevin Shenkman of Shenkman & Hughes, wrote in the Monday filing:

"Plaintiffs prevail on a CVRA claim by showing: (1) racially polarized voting in an at-large jurisdiction, alone or in combination with other qualitative factors, and (2) an alternative election method would afford the protected class the opportunity to 'elect candidates of its choice' or 'influence the outcome of an election' they were not previously afforded."

In July, a 2nd District Court of Appeal panel said Santa Monica did not violate the California Voting Rights Act when it used an at-large voting system in city council elections, overturning a trial court's ruling that at-large voting diluted Latino votes.

The appellate court held that the association could not succeed in its suit filed under the voting rights act, and had failed to demonstrate that a district-based alternative to the at-large election system would necessarily lead to better electoral results for Latino candidates.

However, the state high court granted Shenkman's petition for review in October, and, on its own motion, ordered the court of appeal decision depublished.

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 voting act. 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, unless the appellate decision to overturn the trial court is itself reversed. City of Santa Monica v. Pico Neighborhood Association, 2020 DJDAR 7174 (Cal. App. 2nd Dist. July 9, 2020).

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 diluted 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, represented by Theodore J. Boutrous, Marcellus A. McRae, and Kahn A. Scolnick of Gibson Dunn & Crutcher LLP, appealed, arguing a lack of successful minority candidates cannot, by itself, show disparate impact, according to Santa Monica's appellate brief. The city argued Palazuelos had erred in presuming Latino voters in every election preferred a Latino-surnamed candidate.

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.

Responding in Monday night's brief, the association said to establish vote dilution under the voting act, plaintiffs do not need to prove the minority is concentrated enough to be the majority in a single member district.

"Nor do they need to prove that minority voters would be able to elect a candidate of their choice under an alternative election system," the association wrote.

Much of Monday's appellate brief referred to Palazuelos' finding, arguing that the trial court came to the correct conclusions.

Santa Monica has yet to file its reply brief.