Update (November 2020)
On September 21, 2020, the California Supreme Court unanimously granted the Petition for Review filed by the Pico Neighborhood Association in this case. The California Supreme Court on its own motion has also ordered the Court of Appeal’s July 9, 2020 decision this case, found at 51 Cal.App.5th 1002, to be de-published pursuant to Rule 8.1125 of the California Rules of Court.
Though Pico Neighborhood Association had broadly challenged the Court of Appeal decision in favor of the City of Santa Monica, the California Supreme Court has asked the parties to brief one issue that will go to the heart of the issue of this dispute: What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?
With the depublication of this decision, the state of judicial interpretation of the California Voting Rights Act is once again uncertain given the lack of published decisions that analyze the elements of a successful claim. Given this state of uncertainty, the California Supreme Court’s decision, in this case, will be all the more critical to understanding how voter advocacy groups and local governments will proceed under the California Voting Rights Act going forward.
At this time the Court has not scheduled any hearings on this matter but the parties have been ordered to file their opening briefs by December 21, 2020.
Original Legal Alert (July 2020)
The Second District Court of Appeal has overturned the trial court decision in Pico Neighborhood Association v. City of Santa Monica that held the City of Santa Monica violated the California Voting Rights Act by electing members of its City Council through at-large elections and in doing so also violated the Equal Protection Clause of the California Constitution. After years of mounting litigation and demands compelling public agencies throughout California to change from at-large to by-district elections, this case is notable because to date it is the most in-depth analysis of the CVRA in a published decision.
Background
The City of Santa Monica has changed how it elects its City Council a number of times over its history. Most relevant to Plaintiffs’ CVRA claim is the transition to at-large elections in 1946 and a decision to maintain that system following a study of alternatives in 1992. Plaintiffs brought suit alleging that this system stifled voting power of Hispanic residents, and thus violated both the CVRA and the equal protection clause of the California Constitution. The trial court held in favor of Plaintiffs on both claims and the City appealed.
At-large elections are not per se disallowed by the CVRA. Instead, the CVRA, like the federal Voting Rights Act (“FVRA”) before it, was enacted to prevent at-large voting methods that “impair the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.” The CVRA exposes a public agencies to liability if it’s at-large method of election “impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class…”
Elections Code Section 14028(a) states that “a violation […] is established if it is shown that racially polarized voting occurs in elections for members of the [Board] or in elections incorporating other electoral choices by voters of the [District].” Racially polarized voting is defined in as “voting in which there is a difference … in the choice of candidates or other electoral choices that are preferred by voters in a protected class, and in the choice of candidates and electoral choices that are preferred by voters in the rest of the electorate.”
Court of Appeal Clarifies Elements of CVRA Violation
The Court of Appeal held in favor of the City on both the CVRA claim and the equal protection claim. While the CVRA provides this definition of how a violation is established, until this decision in Pico Neighborhood Association, a great deal of disagreement has existed among CVRA practitioners about how liability is proven under the CVRA. Until this decision, plaintiff’s attorneys have argued that merely proving a history of racially polarized voting was sufficient to establishing liability under the CVRA. Others have argued that in order to prevail plaintiffs must establish that this racially polarized voting resulted in some measurable harm through the dilution of the vote of members of the protected class.
Pico Neighborhood Association clarifies the test for establishing a CVRA violation. A plaintiff is required to prove five elements:
- Protected Class. Plaintiff belongs to a protected class.
- Resident. Plaintiff is a resident within the jurisdiction of the public agency.
- At-Large Voting. The public agency conducts its elections by at-large voting.
- Racially Polarized Voting. Statistical analysis of past elections demonstrates that the at-large voting system has resulted in racially polarized voting.
- Dilution. Racially polarized voting resulted in the dilution of the voting power of the protected class to an extent that it impaired the protected class’ ability to influence the outcome of elections.
Proving Dilution
While the court clarified the elements of a CVRA claim, it did not analyze the polarized voting element. Instead the court focused on the oft-overlooked dilution element and discussed Plaintiffs’ failure to adequately address dilution.
Following this decision, the dilution element requires a plaintiff to prove that by-district voting would overcome effects of dilution by allowing members of the protected class to impact the outcome of an election more so than under the at-large system. The court found it is not sufficient for a plaintiff to prove that district boundaries would increase the percentage representation of the protected class in a given district. The Court illustrated this with several hypotheticals where by-district voting increased the population percentage of a protected class.
The court further concluded that it is not sufficient for a plaintiff to show some increase in the population percentage of a protected class under by district voting as compared to the at-large system. Here, Plaintiffs’ proposed boundaries only increasing Hispanic voter share to 30% in their strongest district. While “the City agrees some “influence” claims in theory could be valid if evidence showed a near-majority of minority voters in a hypothetical district would often be sufficient for the minority group to elect its preferred candidates” the court found that it did not need to determine when such circumstances are sufficient to prove a CVRA violation because this case did not present such a circumstance.
Thus, the court found, the switch to by-district voting would result in the same outcome as the City’s at-large election process: no guarantee that if Hispanic voters vote as a cohesive group they could dictate the outcome of an election.
From this it follows that to successfully prove a CVRA violation against a public agency, a plaintiff must demonstrate that their proposed transition to by district elections would overcome the effects of vote dilution suffered under at-large elections by giving members of their protected class at least a 50% share of a district so as to be able to influence the outcome of elections in that district.
Equal Protection Claim
In addition to arguing the City of Santa Monica’s at-large election system violated the CVRA, Plaintiffs further alleged that the City thereby also violated their right to equal protection under the California Constitution. The trial court found the City had violated the Plaintiff’s equal protection rights by concluding the City acted with discriminatory intent by switching to at-large elections in 1946 and deciding to maintain that system following a study in 1992. However, the Second District did not find that the historical record supported this conclusion of discriminatory intent, and found instead that the trial court failed to apply the proper standard of review when it concluded adoption of the at-large voting system proved discriminatory intent. The proper standard of review would have required Plaintiffs to prove that the City acted with the purpose to discriminate against Hispanic voters when adopting the at-large election system.
In other words, here Plaintiffs failed to demonstrate that the reason behind the change to at-large elections was to suppress the vote of Hispanic residents and therefore they failed to meet their burden of proof to establishing an Equal Protection violation.
Key Takeaway
Where, as here in Pico Neighborhood Association, a plaintiff fails to prove that changing a public agency’s voting system from at-large to by-district would remedy the effects of vote dilution by a protected class, a CVRA claim necessarily fails. To succeed, Plaintiff must show that by-district elections would net a positive change in the ability of members of a protected class to elect the candidates of their choice.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys from our office, or the attorney with whom you typically consult.
Jeffrey Mitchell
jmitchell@kmtg.com | 916.321.4591
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Andreas Booher
abooher@kmtg.com | 916.321.4372