Advocates filed amicus briefs on both sides of voting rights appeal

Advocacy groups filed amicus briefs supporting Santa Monica's appeal of a superior court ruling that found it violated the California Voting Rights Act when it used at-large voting for city council elections.

An amicus brief filed by The League of Women Voters of Santa Monica and The Alliance of Santa Monica Latino and Black Voters on Monday argues that changing Santa Monica's existing voting system would diminish rather than increase minority voter strength.

"The remedy sought in this lawsuit will not resolve the issues raised by the plaintiffs in a way that further empowers Latino voters in Santa Monica," league President Natalya Zernitskaya said in a statement.

The underlying lawsuit was filed in 2016 by the Pico Neighborhood Association and failed city council candidate Maria Loya, represented by Malibu attorney Kevin Shenkman of Shenkman & Hughes. They claimed at-large voting diluted Latino votes and district style voting would remedy the dilution.

Siding with the plaintiffs, Los Angeles County Superior Court Judge Yvette M. Palazuelos ordered Santa Monica split into seven districts, with each electing one city council member. However the case is now before the 2nd District Court of Appeal after Santa Monica asked it to reverse Palazuelos.

Shenkman has sued municipalities up and down the state regarding compliance with the voting rights act and recently sent a litigation letter to the city of Irvine. Like Santa Monica and unlike most other cities that changed their voting system to district voting after Shenkman threatened litigation, Irvine said it will go to court if necessary.

In a strongly worded reply letter Irvine City Attorney Jeffrey Melching said Shenkman's claim that Irvine's at-large voting system diluted Asian American votes, was "misguided."

"Even if the stereotype that Asian American voters prefer only Asian American candidates were true, you overlook the fundamental fact that three of five current city council members (60% of the council) are themselves Asian American ... in a city where less than 39% of its eligible voters are Asian American," Melching's letter reads.

"We respectfully suggest that next time you do your homework before making threats like this one," Melching wrote at the end of the letter.

However, FairVote, an organization that advocates for changes in the electoral system, filed an amicus brief in May supporting Shenkman's litigation efforts in Santa Monica. The group said under the city's traditional at-large voting system, Latino voters have struggled to elect a Latino to the city council though Latinos make up roughly one-seventh of the voting-age population.

However, during the trial before Palazuelos, the city presented evidence that two Hispanics had been elected to the council, including a mayor.

Also, the city, represented by Theodore J. Boutrous, Marcellus A. McRae, and Kahn A. Scolnick of Gibson Dunn & Crutcher LLP, argued a small number of successful minority candidates cannot, by itself, show disparate impact, according to Santa Monica's appellate brief.

In July, the court of appeal sided with Santa Monica, saying Shenkman 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, in yet another twist in the litigation, the state high court granted Shenkman's petition for appellate review in October, and, on its own motion, ordered the court of appeal decision republished. Pico Neighborhood Association v. Santa Monica, 2020 DJDAR 7174 (Cal. App. 2nd Dist. July 9, 2020).

The appellate court is expected to rule in the coming months, according to a source familiar with the litigation.

Shenkman and Gibson Dunn attorneys did not respond to requests for comment Tuesday.