Both sides respond to many amici in voting rights case

Santa Monica and a lawyer suing the city for allegedly violating the California Voting Rights Act in city council elections, filed a flurry of briefs Wednesday night responding to many amicus briefs filed in the California Supreme Court.

Attorney General Rob Bonta filed an amicus brief for neither side, saying it was important for the Supreme Court to clarify for the first time how the California Voting Rights Act is supposed to work when it comes to voter dilution and how it relates to a city's chosen voting system.

Malibu plaintiffs' attorney Kevin Shenkman of Shenkman & Hughes PC, who has filed a number of voting rights complaints up and down the state, has received backlash from some cities and municipalities. They say at-large voting -- a system in which all voters cast their ballots for all candidates in the jurisdiction -- does not dilute minorities' voting power.

But most municipalities did not provide much legal resistance until Santa Monica employed Gibson, Dunn & Crutcher LLP to fight the case in Los Angeles County Superior Court, the 2nd District Court of Appeal, and now in the state Supreme Court. Wednesday night's filing rush will conclude the briefing stage before oral arguments are heard, perhaps next year.

Shenkman, who said the city has argued that "anything protecting minority voting rights more than the Federal Voting Rights Act is unconstitutional," said in at least three of his four response briefs Wednesday that the Legislature intended the act to expand the protections against vote dilution provided by the federal law.

"The trial court explained all of that in its statement of decision, but amicus, just like defendant, fails to rebut the trial court's explanation," his response briefs reads.

Santa Monica, represented by Theodore J. Boutrous Jr. of Gibson Dunn, filed one consolidated response brief arguing that it is a particularly bad target for a voting rights complaint. It said since 2012, at least two of the council's seven members have been Latino and that only two of the current 10 council members are non-Hispanic white in a city that is over 70% non-Hispanic white.

"No matter how one looks at it, this record of significant Latino electoral success does not cry out for an order requiring the city to scrap its current electoral system in favor of a new one," the city's brief reads. "And this case shows why: Despite their relatively small share of the voting population in Santa Monica (13.6%), Latino voters are electing candidates of their choice (both Latino and non-Latino), and switching to a district-based system (as plaintiffs propose) would reduce their electoral power, not enlarge it."

The underlying lawsuit was filed in 2016 by the Pico Neighborhood Association and failed city council candidate Maria Loya, represented by Shenkman. They said 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, after Santa Monica appealed Palazuelos' decision, the 2nd District Court of Appeal ruled in its favor only to have the California Supreme Court grant plaintiffs' request to review the appellate court's ruling. Pico Neighborhood Association v. City of Santa Monica, 2020 DJDAR 7174 (Cal. App. 2nd Dist. July 9, 2020).