By Michael Feinstein, Inside/Outside. August 24, 2019

We like to think we are at the forefront of a lot of public policy in Santa Monica – and we often are.  But sometimes we are not.  In the case of electoral reform, part of it is our fault, but part of it is state law.

The City of Santa Monica is currently the subject of a California Voting Rights Act (CRVA) lawsuit. It alleges that the City’s seven member at-large multi-seat plurality voting system diminishes the voting power of a protected group of local voters, in this case Latinos in Santa Monica.

Santa Monica is disputing that claim, and I address that below. But under the CVRA, once dilution of the vote of a protected class is demonstrated, a move to remedies is automatic. At the same time, even though several remedies are legally permissible, only one is legally protected (provided legal ‘safe harbor’) under the CVRA from immediate legal challenge. That remedy is to implement single-seat, winner-take-all electoral districts.

The classic case for such districts is when a minority group is sufficiently large and geographically compact, that one (or more) ‘majority-minority’ districts can be drawn to give the minority group a strong chance to select their own representation.  But what if the minority community is not geographically compact, as in the case of Santa Monica?

That’s where things can get murky.  The plaintiffs in the CVRA case want the courts to impose seven single-seat districts upon Santa Monica, one of them where Latinos would make up about 30% of the voters.  In electoral law parlance, that is called a  ‘minority influence’ district – where minorities don’t make up a majority of the district, but arguably still make up enough to have influence over the final result.

But such influence is questionable given how traditional divisions in the local Latino community would divide that already minority 30%. At the same time, about 2/3 of all Santa Monica Latinos would live outside of this district proposed to empower them. Huh? Why can’t Santa Monica consider an electoral reform that empowers Santa Monica Latinos citywide? Because the CVRA only gives safe harbor to single-seat, winner-take-all-districts.

Learning from Lowell

Lowell, Massachusetts faces a similar voting rights challenge to Santa Monica, but has more options. The lawsuit against Lowell alleges that the city’s nine member at-large, multi-seat plurality voting system diminishes the voting power of both local Latinos and Asian-Americans. But unlike Santa Monica, Lowell has been empowered by Consent Decree to conduct a public process to evaluate among six options, all of which are legally protected from challenge, so the preferred alternative can be implemented and tried out.

Among the six options being considered in Lowell are a purely single-seat, winner-take-all district-based system,  three “hybrid” options that combine single-seat district and at-large seats – and two at-large options utilizing ranked-choice voting (RCV), where voters get to rank as many candidates as they link in the order in their preference.

RCV leads to proportional representation results in multi-seat elections, providing for strong minority representation. Under proportional representation elections, a majority group can not outvote a minority group for all seats. Instead each bloc of voters would win seats in proportion to their numbers, which makes it ideal to empower minority communities. That’s why Eastpoint, Michigan – which has a large African-American community but little historical African-American representation on its city council – has recently chosen RCV in settling with the U.S. Department of Justice over their own history of voting rights violations.

It is ironic that Santa Monica is not given the same opportunity to consider alternatives. But the City argues that its electoral system is not in violation of the CVRA in the first place: that most of candidates supported by Santa Monica Latinos have been elected by the population at large, that Santa Monica has historically elected members of minority groups to local municipal office (29 Latino candidates and 14 African-American candidates since 1990 ), and that Santa Monica’s minority group population is spread across the city instead of concentrated in one place.

The City also points to the lessened voter choice Santa Monica voters would experience under single-seat district elections – Latinos included – where residents would lose their vote on six of seven council seats, and council members would no longer need votes from outside of their district to be elected (thereby decreasing accountability of local elected officials and Balkanizing local politics.)

Risking Representation

But ultimately the case hinges on how much ‘vote dilution’ is too much and how much is not under the CVRA, which states that if a protected group votes one way and the rest of the voters vote another, that difference is a voting rights act violation and one must automatically move to the remedy phase.  But the CVRA doesn’t specify how different the votes have to be from the protected class to the rest of the population to be a violation. And there is a good reason for that – the concern that drawing a hard line says a certain level of injustice is OK and a certain level is not.

But at the same time, there has to be some practical bottom to how much a difference in voting patterns mandates a radical change in electoral systems.  That ultimately is what the CVRA case against Santa Monica is testing – and is a really risky (and arguably disproportionally self-interested)  move by the plaintiffs.

Many long time voting rights advocates do not believe the CVRA was designed for situations like Santa Monica; many fear that if the case against Santa Monica fails, it could weaken or gut the CVRA by weakening vote dilution as a criteria and influence districts as a tool. But every principle strains when stretched towards its limit. Is it really worth testing the limits of the CVRA over Santa Monica?

The CVRA does needs to be strengthened through amendment to provide more legally protected remedies including ranked choice voting; and where districts are enacted, to ensure the lines are drawn fairly and can be challenged when they are not. Somehow, the legislature also needs to look at how much vote dilution merits what kind of changes — as hard of a question as that is.  I would rather have that decided by a public process involving grassroots communities and voting rights groups than by the courts.

Until then, it’s not good for representative elections in California for the Santa Monica CVRA case to be decided, until the state legislature learns from it and improves the law.

Multi-part series on Santa Monica and the California Voting Rights Act (CVRA)

Michael Feinstein is a former Santa Monica Mayor (2000-2002) and City Councilmember (1996-2004) and was a 2018 Green candidate for California Secretary of State. He can be reached via Twitter @mikefeinstein

Inside/Outside‘ is a periodic column about civic affairs Feinstein writes for the Daily Press, that takes advantage of his experience inside and outside of government.

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