Voters cast their ballots at City Hall during an election. (File photo)

While the City of Santa Monica heads into the third week of defending its election system against a lawsuit alleging it is illegal under the California Voting Rights Act (CVRA), a separate case is challenging the constitutionality of the law itself. The former mayor of Poway brought the case after his city settled and formed districts rather than face litigation from the same group of attorneys suing Santa Monica.

The lawsuit filed in federal court argues the CVRA violates the Equal Protection Clause of the Constitution because it makes race the deciding factor when drawing electoral districts. The case was brought by the Project on Fair Representation, the same conservative legal defense fund that brought affirmative action in college admissions before the Supreme Court in Abigail Fisher v. University of Texas.

“We make a pretty simple argument,” said the non-profit’s director Edward Blum. “The Supreme Court in lots of other cases has said, while race is permissible in certain election schemes, before you use race, a number of hurdles have to be overcome and race cannot be the predominant reason that a legislative body enacts an election law statute.”

While Attorney General Xavier Becerra is the defendant in the case, the Mexican American Legal Defense and Educational Fund (MALDEF) and other civil rights groups have stepped in as intervenors.

“The CVRA is essential to protecting the voting rights of minority community members in an electoral system that too often suppressed their voices,” said Jonathan Stein, an attorney for Asian Americans Advancing Justice. “It is imperative that this important civil rights law is upheld.”

Attorneys for former Poway mayor Don Higginson argue Malibu attorney Kevin Shenkman has created a cottage industry, bringing the threat of a CVRA lawsuit to cities across California. The law makes it easier for minorities to show at-large election systems dilute their votes, making it difficult for them to get preferred candidates on the dais. Shenkman has told the Daily Press roughly 40 cities have settled with his law firm rather than go to trial to defend their at-large election system. Shenkman’s lawfirm reaps $30,000 per settlement.

“One man, in particular – Kevin Shenkman – has been more prominent than any other attorney in utilizing the CVRA to reap private gains at the expense of California taxpayers,” the lawsuit said, estimating the city of Palmdale spent $7 million fighting Shenkman’s lawsuit in 2015 before capitulating and creating districts. “One by one, the targeted cities have suffered staggering liability or preemptively surrendered.”

If Shenkman wins at trial, the city has to pay his attorneys’ fees in addition to their own. In Palmdale, he was awarded $4.6 million.

Poway received one of Shenkman’s letters in 2017. The City Attorney there promptly advised the at-large elected City Council that “the public interest may ultimately be better served” by a settlement to avoid hefty legal fees. Before ultimately voting to implement districts, one Poway Councilmember told the public “we have a gun to our heads and we have no choice.”

Santa Monica is one of the rare cities to take the issue to court, arguing Latino voters can and do successfully vote their preferred candidates into office. Two current Councilmembers self-identify as Latino, Councilman Tony Vazquez and Mayor Pro-Tempore Gleam Davis. Voters have rejected two ballot measure that would have created districts, where voters choose one candidate from their neighborhood rather than a slate of candidates who represent the entire city.

Critics say Santa Monica has taken up an unwinnable case, hiring outside law firm Gibson, Dunn and Crutcher, LLC to defend the status quo. The City says the cost of the team of attorneys from Gibson, Dunn falls under attorney-client privilege until the case is over. Both sides vow to appeal any decision made in Los Angeles Superior Court.

As for the separate Federal Case, attorneys for the former mayor have asked the court to expedite the ruling. It’s unknown how that case could impact the legal drama unfolding in Santa Monica.

Kate Cagle

Senior reporter for the Santa Monica Daily Press