Santa Monica City Hall (File photo)

A court of appeals issued a tentative ruling Tuesday that if made final, would reverse a previous order forcing Santa Monica to change the format of its city council elections.

The ruling was announced early in the afternoon when attorneys for the city of Santa Monica and Pico Neighborhood Association started their oral arguments in a California Voting Rights Act lawsuit. The lawsuit, which began on Aug. 1, 2018, stems from a complaint filed in the California Superior Court that alleges the at-large election system for Santa Monica City Council dilutes Latinx voting power.

The Los Angeles Superior Court previously ordered the city to conduct a district-based election on July 2, 2019, however an appeal was filed by city attorneys to temporarily preserve the status quo.

While the tentative ruling was not made available to the public, the judges questioned Kevin Shenkman, who is representing the Pico Neighborhood Association in the case, on the issue of “dilution” or how large should a minority population be in order to make a difference in an election. The proposed district would establish a Pico neighborhood with a 30 percent Latino population and the judges questioned how large the minority population should be to influence an election.

Shenkman said that the specific number wasn’t as important as the evidence that the districts would change the outcome.

“I think the strongest evidence here, is that if you look at past elections, it would have made a difference, not just the ability to influence, but the ability to elect,” he said. “That Maria Loya would have been elected, a Latino preferred candidate, and that Tony Vazquez got the most votes there. And so that simply looking at the percentage, without that searching practical reality of the political situation on the ground, I think can be misleading.”

He said that in some cases even a majority minority district of 50 percent might not make a difference but the court should look at many factors including the cost of an election and the particular politics of a city.

He took issue with the tentative ruling ignoring other voting systems as potential outcomes and said all his client is asking for is a system that gives them an opportunity to win, not an outright guarantee.

“And I would close with this, this court should follow the California legislature’s lead,” he said. “Specifically the recognition that a majority minority district is not necessary for the voting rights of a minority to be diluted, and thus affirm the Superior Court’s reasoned judgment that the remedy it selected will be effective. This is certainly no time to go backwards and what the legislature did in enacting the CVRA.”

Loya, a Santa Monica resident, ran for city council and received a large portion of the Latinx vote in 2004.

Despite receiving such a large majority of Latinx votes, Loya received much less support from non-Latinos and eventually lost a race with four open council seats, according to Shenkman, who said, “In a seven district system corresponding to a seven member city council, Maria Loya… most certainly would have won.”

Theodore Boutrous argued on behalf of the city and he said Shenkman’s arguments were flawed.

Boutrous said the city’s arguments fall in line with the legislature’s intentions while the Pico Neighborhood Association’s arguments plainly contradict the text of the statute.

“It really comes down to the numbers,” and whether people believe they are better off with only a 30% majority in a district or 14% in the city, Boutrous said.

“Districts don’t provide any greater (voting) power because the population is so much lower than a majority,” Boutrous added, mentioning how other at-large systems and staggering of elections will not help either. “It’s a product of the small population, not the system,” he said.

He said that Shenkman manipulated data in a misleading way.

“I’ll just finish with one point since Mr Shenkman did make various claims about how Latino preferred voters fared … the word gerrymandering I think applies best here, when we, when we look at how Pico has always dealt with the data. They count Tony Vazquez, the one time he lost an election, they don’t count the three times he won. They don’t count Gleam Davis as a Latina, because she wasn’t Latina surnamed and then because she’s not recognized as a Latina. They don’t count Latino serving candidates who lost with very little Latino support. They deem them not serious so it’s basically a self fulfilling prophecy. And we demonstrated through the data that preferred candidates of all races overwhelmingly prevail.

“The tentative hits the nail on the head,” Boutrous said.

Both sides are hopeful the judge will issue a ruling by early July, but both parties can seek review by the California Supreme Court if they disagree with the court’s decision.

“We believe the tentative ruling is correct and are confident that following oral argument scheduled for June 30 it will become final,” said City Spokeswoman Constance Farrell. “Santa Monica’s at-large City Council election system, originally chosen and twice validated by Santa Monica voters, complies with the law. Santa Monica is committed to fair and just electoral representation for every member of our community. The at-large election system was neither established nor maintained for a discriminatory purpose, has repeatedly elected candidates preferred by Latino voters, and has not diluted Latino voting power. In contrast, the districts drawn by the plaintiffs and adopted by the trial court would dilute Latino voting power.”