Santa Monica case reveals flawed California Voting Rights Act

By Michael Feinstein, Inside/Outside, April 2, 2019

“How do we get fair representation in elections?” is at the heart of a California Voting Rights Act (CRVA) lawsuit against the City of Santa Monica. But whether the CVRA itself is sufficient law is as much on trial.

Arguably, the CVRA’s analytic and remedial tools don’t fit the reality on the ground in Santa Monica because Santa Monica doesn’t have a majority-minority neighborhood — while the CRVA’s favored remedy of imposing single-seat, winner-take-all districts may actually make minority voice and representation worse.

Can a law be working if it leads to counter-productive results for the groups it is supposed to empower, while undermining voter choice for the rest of the community?

The Right to Vote

Following the Civil War, the United States adopted the 15th Amendment, which states that "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."

The Federal Voting Rights Act (VRA) of 1965 and the CVRA of 2001 enshrined this principle. As a result, many single-seat partisan state and congressional districts drawn to disempower minority voters have been challenged, as well as some non-partisan, municipal multi-seat at-large elections like those used in Santa Monica.

Racially-Polarized Voting and Influence Districts

Under both Voting Rights Acts, ‘racially-polarized voting exists’ when voters of different racial or ethnic groups exhibit very different candidate preferences. Combined with multi-seat, at-large elections, a minority vote can be ‘diluted’ such that a larger racial or ethnic group can outvote a smaller one for every seat, even if the smaller is proportionally equal to one or more of the seats.

When a minority group is sufficiently large and geographically compact, the classic remedy is to establish one (or more) majority-minority districts. But in Santa Monica, it is impossible possible to draw a district with a voting population more than 30 percent Latino. Why then is there a legal case in the first place? Because the CVRA goes beyond the VRA to not only invalidate elections that impair the ability of minority voters to elect the candidate of their choice, but also those that impair the ability of minority voters to influence elections.

At the same time however, the CVRA does not define ‘influence’. That leaves open how many minority voters are required to provide influence and justify a move to a single-seat ‘remedy district.’  The problem with this is that under the CVRA, "the size and geographical compactness of the minority group and the impact of these factors on minority voters’ ability to elect or to influence elections" is deferred to the remedial phase of the litigation. This can mean that under the CVRA, it doesn’t matter whether there is a viable remedy once racially-polarized voting is demonstrated.

Whose Vote is Diluted?

The plaintiff’s primary argument vs. the City of Santa Monica is to point to eight City Council races between 1992 and 2016 where Latino voters supported candidates with Spanish surnames in much greater percentages than did non-Latino voters. While no group is politically homogenous simply based upon race and ethnicity, it's not surprising with a single Latino candidate in a multi-seat race, many Latinos vote for that person with one of their multiple votes, and at a higher rate than non-Latinos.

Based upon this, plaintiffs seek a Pico Neighborhood-based ‘influence district’ which would have the largest possible concentration of Latinos, even if not enough to elect a winner by itself.  But the CVRA conceptually fails to account for what might happen in such a district where more than one member of the protected class competes for the same seat.

On January 22nd, long-time Pico Neighborhood resident Ana Maria Jara became Santa Monica’s first Latina City Councilmember, appointed to fill a vacancy left by Tony Vasquez’s resignation to join the State Board of Equalization. The next day CVRA co-plaintiff Maria Loya publicly opposed Jara’s appointment - as is her right, but also reflecting a long time division within the local Latino community.

Now imagine a November 2020 district election in which Jara and Loya both run, joined by European-American incumbent environmentalist City Councilmember Terry O’Day, who also lives in the Pico Neighborhood — and who received the most votes there in 2016 — ahead of Latinos Vasquez (2nd) from the Sunset Park neighborhood and CVRA co-plaintiff Oscar de la Torre (3rd) from Pico. What happens to the ‘influence’ of the already divided 30% Latino vote then? It becomes minimal, and it’s easy to see O’Day winning the seat with a plurality of the vote. And this scenario doesn’t consider if Barry Snell also enters the race, a well-respected African-American member of the Santa Monica College Board of Trustees, further dividing the Pico Neighborhood ‘people of color’ minority vote.

Better Remedies

The reality is that in Santa Monica, based upon the numbers, Latino candidates must gain the support of large numbers of white voters to be elected, whether via multi-seat at-large or single-seat district elections. This already occurs with the city’s existing at-large elections — from 1990 to 2018, Latinos were elected to 29 seats (and African-Americans 14) on Santa Monica’s City Council, School Board, College Board and Rent Boards. The difference is that with at-large, multi-seat elections, all Santa Monica Latino registered voters get to participate in that process, but under the plaintiff’s scheme, almost 2/3 would live outside of the influence district designed to give them a voice.

And none of this takes into account the lessened voter choice for all Santa Monica voters - Latinos included - under single-seat district elections, 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, decreasing accountability of elected officials citywide and Balkanizing local politics.

If the goal is to empower Santa Monica Latinos, what about increasing City Council members compensation, which might give more low and middle-income Latinos a better ability to serve? What about small donor public matching funds for candidates who accept spending limits? What about allowing non-citizen residents to vote in all local elections, as was approved in San Francisco for school boards in 2016?  Why not a larger City Council of nine members? Why not any/all of these combined with ranked-choice voting, to provide for greater proportional representation overall?

Beyond the electoral self-interest of the plaintiffs, who seem intent only in carving out a district that gives them personally the best chance to win a City Council seat, the problem again lies with the CVRA, which so favors the imposition of single-seat districts, that it grants only them legal safe harbor against future challenge - the only remedy so protected - even to what legal scholars have called 'ambiguous and nebulous' influence districts.

Fair Representation

There are entirely good and just reasons to promote fair representation for the great diversity in our society. But our current voting rights laws were written before progressive electoral reforms like ranked-choice voting and proportional representation were discussed widely in this country. Now today even the New York Times is recommending both for the U.S. House of Representatives.

Most California cities faced with CVRA lawsuits have folded rather than dedicate the resources to fight back, and some CVRA supporters fear that if Santa Monica prevails, it could undermine the CVRA by rendering any remedies other than majority-minority districts unconstitutional.

Far from it.  The Santa Monica case raises numerous subtleties and gradations that the current CVRA fails to appreciate and account for, that could improve it if taken to heart. For this reason, a victory for Santa Monica in this CVRA case could actually be a victory for democracy and diverse representation in our state.

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.