The political future of Santa Monica’s elected leaders is on the line Wednesday, as the trial to determine whether Latino voters are suppressed by the current election system begins. Up and down the state, officials will be watching as the City Attorney’s Office squares off with the Malibu lawyer responsible for upending dozens of city councils in California.
The City’s witness list for the trial reads like a whos-who of city politics spanning multiple eras. The current council, City Manager Rick Cole and other department heads, a police captain, former mayors Judy Abdo, Michael Feinstein, Dennis Zane, Nat Trives and former city councilman Kelly Olsen are among the roughly 60 witnesses slated to testify during the trial in August.
The case centers around the 2001 California Voting Rights Act, an expansion of federal law that makes it easier for minority groups to prove their votes are diluted in at-large elections. If attorneys can prove racially polarized voting, they can advocate for a switch to districts, where voters elect a single councilmember from their own neighborhood. Latinos make up 13.6 percent of the vote here.
In the three years since the city of Palmdale lost a CVRA lawsuit brought by Kevin Shenkman (and had to pay him $4.5 million in legal fees), he says 40 more cities have settled and canceled their at-large elections rather than go through a lengthy and expensive trial.
Here, he alleges Latino residents of the Pico Neighborhood vote differently than their white neighbors. Shenkman argues the city’s at-large election system, where the entire city votes for council members, makes it difficult for Latino’s preferred candidates to make it onto the dais.
“We don’t have to prove that there was malicious intent to discriminate, we only have to show a discriminatory effect,” said Rex Parris, another attorney for the Pico Neighborhood Association, which brought the lawsuit against the city. Parris, the mayor of Lancaster, was also involved in the Palmdale case.
The plaintiffs are Maria Loya and her husband, Oscar de la Torre, a current SMMUSD school board member. De la Torre lost his 2016 bid for the City Council while picking up the most votes in the Pico neighborhood (he received just 79 more votes than Councilmember Terry O’Day, who also lives in the Pico Neighborhood, according to court documents). O’Day received far more support citywide – winning him a seat on the Council along with Mayor Ted Winterer and Mayor Pro-Tempore Gleam Davis.
It will be up to Judge Yvette Palazuelos whether the results of this month’s trial will have an immediate result on the November elections, should she decide Santa Monica’s system creates an unfair playing field. The result could derail an election season that has already begun, forcing the city to quickly draw districts that pit sitting members against each other. For example, Councilmember Sue Himmelrich and Davis both live North of Montana and could be forced to run against each other, depending on how districts are drawn.
The city clerk’s office told the Daily Press it would be difficult to change the ballot in November on such short notice because Santa Monica elections are consolidated with Los Angeles elections.
The city is contracting high-powered attorneys from Gibson, Dunn and Crutcher, LLP, for the trial. They point to two sitting Latino Councilmembers, Tony Vazquez and Davis, who discovered her Latino heritage through DNA testing. They plan to argue that 77 percent of Latino-preferred candidates have won seats on the council since 2002.
“We’re looking forward to laying out all the evidence,” said attorney Ted Boutrous. “We think this is an important case to further define the California Voting Rights Act. It hasn’t been subject to many decisions.”
Shenkman’s critics say the dozens of settlements in other cities do not necessarily mean he has a winning argument. Rather, they contend cities tend to capitulate rather than spend the millions of dollars it takes to fight him in court.
“This is a dangerous situation because the settlements are occurring without any real judicial scrutiny to determine whether the citizens will be better off, including the protected class,” Boutrous said. “In Palmdale, it was possible to create a majority-minority district in a way that would have amplified the voting group but Latinos are dispersed throughout the city of Santa Monica.”
A City spokesperson declined to say how much the litigation in costing, citing an active case and attorney-client privilege. Gibson, Dunn made a major misstep last month, when they failed to serve Shenkman documents on time during an effort to have the case dismissed. Shenkman himself noticed the error, and successfully had their motion for summary judgment thrown out.
To Parris, the fact the city would point to Davis as a Latino candidate shows a misunderstanding of the law.
“It’s not about whether you have a Hispanic on the council, it’s about whether it was the choice of the Latinos in Santa Monica,” Parris said.
kate@smdp.com
