Santa Monica could be mere months away from a resolution to the multi-year legal fight over how elected leaders are chosen after the California Supreme Court heard oral arguments in the case of Pico Neighborhood Association et al. v. City of Santa Monica.
The case was filed by the Pico Neighborhood Association and Maria Loya, claiming that the City’s at-large voting system discriminates against Latino voters and requires a switch to district voting. The Los Angeles Superior Court initially ruled against the City in 2018, but the decision was overturned by an appeals court in 2020, leading the plaintiffs to take the case to the California Supreme Court.
The Supreme Court agreed to review the case with a focus on establishing the benchmark for proving vote dilution under the California Voting Rights Act. It also upheld the Court of Appeal’s ruling that the plaintiffs failed to prove discrimination in violation of the equal protection clause.
To prove vote dilution under the CVRA, the plaintiffs must demonstrate that a protected class, such as race, is unable to influence an election due to being overwhelmed by the majority.
The plaintiffs proposed dividing the city into districts, which would result in a Pico neighborhood with approximately 30% Latino population compared to the citywide average of 14%. However, this would not guarantee an ability for Latino residents to win an election, leading the appeals court to support the City’s current at-large voting system.
Both sides had an opportunity to restate their arguments before being peppered with questions from the justices on Tuesday.
Representing the plaintiffs, Attorney Kevin Shenkman said at large elections can and do deny minority communities the representation they deserve and sorely need in their local governments. He said the CVRA didn’t require any specific threshold for establishing a minority’s ability to influence or outright win an election and rather, the law just required proof of racially polarized voting and evidence an alternative voting system would improve a minority groups ability to elect or influence the outcome.
However, the justices quickly and repeatedly questioned Shenkman over the minimum standards to determine if district voting would increase the ability of a minority group to actually impact an election and specifically how to differentiate the ability to influence an election from out right winning it.
"So I understand your answer to be there can’t be a hard and fast numerical threshold because of this sort of a wide variation and the different circumstances that might arise in different jurisdictions throughout the state of California," said Justice Kelli Evans. "But if it’s not a numerical threshold, I guess I’m wondering if you can sort of flesh out a little bit what question are the litigants and courts looking to when they answer the question whether or not a particular threshold is sufficient to make a meaningful difference in terms of influence?"
Justice Joshua P. Groban also questioned how to issue guidance to lower courts.
"I keep thinking about our job and the question presented, which is, among other things, perhaps, to tell trial courts what influence means and do it in a way that would allow them to actually separate valid claims from invalid claims," he said.
Shenkman said proof of racially polarized voting was the first hurdle to overcome.
"I think first of all, a plaintiff would need to show racially polarized voting in any event, and by showing racially polarized voting, a plaintiff shows that under the current at large election system, the minority community lacks that ability to elect or appropriate ability to influence and so I think that’s a significant threshold," he said.
He said there are other ways to evaluate a claim.
"In addition to the proportion of the remedial, the minority proportion of the remedial district, the past election results, the court can look at how other similar districts have performed in other jurisdictions, wealth disparities, particularly where there’s, where the at large election system results in very costly campaigns to political organization within the remedial district and the dedication of political leaders. All of those factors, and then some others could be considered as well. I think, you know, it’s been suggested that that’s just too difficult for trial courts to handle. I don’t think that’s the case."
Arguing on behalf of the City, Theodore J. Boutrous Jr. said several successful campaigns by Latino backed candidates refuted any assertions of racially polarized voting and that without a measurable threshold to determine dilution, arbitrary standards could actually reduce the political influence of the protected class. He said without strong evidence a minority backed candidate could win in a district, candidates backed by the minority group would be unable to win anywhere as they could not combine their votes citywide.
However, the Justices questioned how the City’s position could be reconciled with established law that does not require minority voters to be a numerical majority in a district based system.
Justice Evans asked how large a minority’s percentage should be in a district, calling the need for a "near majority" one of the most interesting and most concerning aspects of the appeals court decision.
"If here, there had been a showing of a 45% of the population that would be in the district, and all other standards have been met. And there was a showing that saying Latino and African American voters often joined together, that would be a coalition there was sustained, substantial evidence, strong evidence in the record to show that you could make a rational finding that would then give the power to Latinos to elect the candidates of their choice or by joining together influence the outcome by electing candidates, that would meet our test," Boutrous said.
Boutrous said that without a near majority threshold, arguments about "influencing" an election were simply speculative as they relied on hypothetical outcomes and alliances.
Justice Martin J. Jenkins questioned why Boutrous would dismiss such possible outcomes.
"But the question was really more about the manifestation of influence claims and what might suffice to establish them," he said. "You haven’t answered that question."
Boutrous said the City’s arguments were within the scope of past rulings and the presence of Latino candidates on Council showed Latinos could already impact elections. "... it can’t just be the thought, the hope, the speculation that things might get better for a particular group, particularly where they are succeeding," he said. "I venture to say there’s no Voting Rights Act case in history, where the minority group that is bringing a Section 2 claim in the federal system had the majority of the legislative seats or had a live majority of the body to which they were saying their voting power was diluted. It’s just not anything that’s ever been advocated."
The case now resides with the court who have averaged a ruling within a few months after hearing arguments.
