Despite the end of oral arguments in the local California Voting Rights Act lawsuit Tuesday, the verdict regarding the legality of Santa Monica’s government will likely come after the Nov. 6 election, according to attorneys on both sides of the case. An attorney for plaintiffs Maria Loya and the Pico Neighborhood Association told the Daily Press they have not decided whether to ask the judge to throw out the election results, should they win the lawsuit.
“It’s not going to affect the November election,” said attorney Rex Parris, who represented Loya in the case challenging Santa Monica elections under the CVRA, which makes it easier for minorities to overhaul local governments. “That’s probably what everybody is concerned about.”
Indeed, several candidates who initially pulled papers to run for City Council dropped out last month, citing the pending litigation. Those candidates said there was no point gathering the resources – including volunteer time and donations – to run for an election that could potentially be blocked by Judge Yvette Palazuelos, should she rule the city is in violation of the CVRA.
“Frankly, I think it’s a shame Santa Monica is running an election under this cloud,” said Parris’ co-council, Kevin Shenkman, who has brought similar lawsuits to dozens of cities. Shenkman said while voting may take place, a verdict could come before the election is certified.
Parris and Shenkman will advocate in their final brief that the city of Santa Monica should form districts, where each neighborhood votes for a representative. In a hypothetical Pico neighborhood district, 34 percent of voters would be Latino, as opposed to about 13 percent of the city overall.
The City plans to fight any motion that would upend the election results.
“The City believes the evidence at trial showed that Santa Monica’s at-large election system complies with the CVRA and the state constitution,” said City spokesperson Debbie Lee. “As a result, we would oppose any motion that would interfere with the casting of ballots or certification of results in the Nov. 2018 election.”
Attorneys for plaintiffs Maria Loya and the Pico Neighborhood Association have until Sept. 25 to submit their written closing statements in a form of a brief. By the time the City replies (Oct. 15) and plaintiffs respond (Oct. 25) both sides agree any judgment will likely come after voters go to the polls.
Palazuelos has the ultimate say in whether the city’s at-large election system, where every voter can select up to three or four candidates for City Council, is illegal. Both sides have vowed to appeal her decision if it is not in their favor, potentially delaying a decision even longer.
No city in California has successfully fought a challenge based on the CVRA, which says “an at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.” If Santa Monica loses, they must pay Loya’s team of six lawyers, which have already reached $8 million without the added cost of an appeal, according to Parris.
Rather than use in-house attorneys to fight the lawsuit, the city hired Gibson, Dunn, and Crutcher, LLP, a “top tier, very expensive” firm, according to an expert with Valeo Partners, an agency that tracks hourly rates and alternative fee arrangements at large firms. Eight Gibson, Dunn attorneys represented Santa Monica at trial.
The Daily Press obtained information on the approximate hourly rate for three of them:
“Based on past public filings in Valeo, (Marcellus) McRae, (William) Thomson and (Kahn) Scolnick 2018 hourly rates would fall between $1,100 and $1,300 conservatively,” said Valeo’s partner-in-charge Chuck Chandler.
Lee says the cost of the litigation falls under attorney-client privilege.
“An outside law firm was hired because the claims challenged the very electoral system of our City, with potentially significant implications for our community,” Lee said. “The City believed the claims lacked merit, and there have been few case rulings interpreting the CVRA, creating a complex case with many legal questions, particularly in the area of what constitutes racially polarized voting under the CVRA and what plaintiffs must show to prevail in their claims.”
The City also argued the lawsuit is self-defeating, since the majority of Latinos in Santa Monica live outside the hypothetical Pico district. Rather than see their votes enhanced, attorneys argue whites would still be a majority or plurality in every single district. Voters have rejected two voter initiatives to create districts here.
“Our community has had an at-large election system for over a century,” Lee said. “The voters have chosen to keep this system time and again. While some in the City may prefer districts, the majority of voters in Santa Monica have not agreed. If district proponents with to take the question to the voters, they have every right to do so.”
The CVRA says members of a protected class do not have to be geographically compact or concentrated in order to win a lawsuit but it may be a factor in determining the best new election system to impose. The city of Mission Viejo recently settled a CVRA lawsuit from Shenkman but agreed to go to cumulative voting, rather than districts, starting in 2020.
“We tried to have those conversations and we were rebuffed,” Shenkman said of efforts to settle with the city of Santa Monica.
During the trial, Judge Palazuelos offered few hints about how she will decide the case, allowing attorneys from both sides to submit a mountain of evidence and testimony during the six week trial. A similar trial in Palmdale lasted just eight days. Parris estimated only about 10 percent of the testimony was actually relevant.
“Everybody got to say whatever they want to say. I’ve never had a trial where multiple lawyers could question the witness,” Parris said. “I liked it. It was very unique and it was designed to put as much information before her as possible. What more could you ask for?”