Plaintiff Maria Loya led a protest in March 2019 to urge the city to rethink its planned appeal of the CVRA case. (File photo)

Santa Monica may still lose the now further delayed case over the future of its elections but experts told the Daily Press last week that the outcome may not be what people expect given the recent ruling at the state Supreme Court opened the door for something other than districts to replace the current at-large system.

The Pico Neighborhood Association et al. v. City of Santa Monica case revolves around allegations that the city’s at-large voting system unfairly discriminates against Latino voters and violates the California Voting Rights Act (CVRA). The plaintiffs, including the Pico Neighborhood Association and Maria Loya, argue that adopting district-based voting would address this perceived bias. The legal proceedings began in 2016, with the first ruling emerging in 2018 from the Los Angeles Superior Court, favoring the plaintiffs and criticizing the at-large voting approach. However, a 2020 appeals court decision overturned this ruling, leading the plaintiffs to elevate the case to the California Supreme Court.

At the heart of the appeal was the notion of “voter dilution,” which examines whether the current voting system marginalizes protected groups, like racial minorities, by limiting their impact due to their smaller population representation. The California Supreme Court dismissed claims that an alternative system must mandate a “near majority” percentage of voters but acknowledged that the City’s current system isn’t inherently unlawful under the CVRA. Instead, they returned the case to the Court of Appeal for reconsideration.

The Supreme Court also emphasized that the plaintiffs have the responsibility of demonstrating that alternative election systems genuinely enhance a protected class’s ability to influence outcomes, regardless of whether these systems involve districts or other methods.

Harvard Law professor Nicholas Stephanopoulos said the decision was a model for state voting rights acts in other states.

He said the ruling had two foundations: that racially polarized voting alone is not enough to alter an election system and that a better system must be identified by the plaintiff.

Election experts said voting is considered polarized when the preferences of the majority and minority-race voters diverge substantially and when the racial majority votes with enough cohesion to usually defeat the minority’s candidates of choice.

“Racially polarized voting is very common in American elections, so if this were all that had to be shown, few electoral systems would be safe from plausible challenges,” he said in a written analysis. “Additionally, the existence of racially polarized voting doesn’t necessarily mean that some other system would improve minority representation. If a minority group couldn’t secure more representation under any other system, it’s a stretch to say its vote is diluted under the status quo.”

He said the acknowledgment that district voting wasn’t the only solution was also laudable.

“In particular, a plaintiff can put forward a system of proportional representation using cumulative, limited, or ranked-choice voting,” he said. “A couple California cities have recently switched from at-large elections to systems of proportional representation after being threatened with CVRA lawsuits. These systems promise better minority representation than single-member districts along with fewer policymaking pathologies. It’s wonderful news that the court explicitly recognized these systems as viable alternatives to the status quo. Hopefully this will encourage more CVRA litigants to consider these systems as remedies when violations are found.”

Christopher S. Elmendorf with the UC Davis school of law was less enthusiastic about the possibility for non-district solutions to CVRA complaints.

“I think it’s a very reasonable interpretation of the California Voting Rights Act,” he said of the ruling. “I also think the California Voting Rights Act is weird in a very fundamental way that the court didn’t address. And the weirdness of the California Voting Rights Act is that it only applies to at-large elections.”

He said the ruling’s elaborate discussion of alternative electoral systems didn’t recognize the reality of the situation, that according to the law, districts are immune from lawsuits and are therefore the most heavily incentivized solution. That’s a problem according to Elmendorf because districts can be just as damaging to minority votes.

“Any city that wants a 100% guarantee of no litigation, no legal liability, no risk, under the California Voting Rights Act, just has to adopt single member district elections,” he said. “And then they can gerrymander their districts however they want and they won’t ever be found liable for diluting minority voting power, at least under the CVRA. They might face a federal complaint. So it’s just a really strange statute in that way, to create an unbelievably powerful incentive for cities to adopt single member district elections, regardless of whether those elections are good or bad for minority voters.”

He said the ruling does show how flexible the CVRA can be in providing ways to challenge at-large elections but the potential remedies are not always better than the problem.

“… the CVRA creates a strange asymmetry between at large elections and single member district elections,” he said. “The first being subject to challenge, the second not being subjected to challenge and because of this asymmetry, the CVRA will not predictably result in better outcomes for minorities, it will just result in the elimination of at large voting systems.”

He said there’s evidence that single-member districts have unintended consequences on the way a city operates.

“Housing production is a major problem. The state is struggling with housing, homelessness and territorially organized local government representation is poison for housing production,” he said.

According to Elmendorf pension problems have gotten worse in districted cities and the overall quality of candidates may decline.

“So there are real problems with having single member district elections as the norm for local government representation,” he said. “And for the California Voting Rights Act to say, essentially single member district elections are so good that you get a free pass against vote dilution liability if you adopt them doesn’t make any sense given the actual problem that California is dealing with statewide.”

Non-district remedies do exist in other places and former Santa Monica Mayor Mike Feinstein has long proposed moving from the current voting system to a ranked choice method (voters rank candidates by preference and if no one wins based on first-preferences, the lowest vote getter is eliminated and votes are automatically redistributed until a winner is declared).

“The problem I see with the implementation of the CVRA law regarding opportunity districts is that it requires courts to do a massive speculative deep dive to get into theoretical guesses about what could have happened under a different electoral system where the protected class could not be close to a majority in a hypothetical single-seat, winner-take-all district,” he said.

Following the recent verdict, UCLA law professor Richard L. Hasen said it appears CVRA cases are going to be harder to bring to court than plaintiffs would want but may be easier to win than cases under the federal standard.

“As to what happens in Santa Monica ultimately, it is too early to say. But the potential for getting rid of the city’s at-large system still seems like a real possibility,” he said.

Matthew Hall has a Masters Degree in International Journalism from City University in London and has been Editor-in-Chief of SMDP since 2014. Prior to working at SMDP he managed a chain of weekly papers...