In a Significant Ruling in Favor of a Public Entity, Appellate Court Clarifies the Dilution Requirement of the California Voting Rights Act

07.10.2020

For the first time, a public entity has successfully defended a challenge to its election method under the California Voting Rights Act.  On July 9, 2020, the Court of Appeal for the Second District of California issued a significant ruling in its published decision in Pico Neighborhood Association v. City of Santa Monica (2020) 2020 WL 3866741.  In its decision, the Court of Appeals confirmed a plaintiff must prove “dilution” in order to prevail, and clarified the meaning of the concept of “dilution” under the California Voting Rights Act (“CVRA”) (Elections Code section 14027).  The Court held that “[d]ilution requires a showing, not of a merely marginal percentage increase in a proposed [voting] district, but evidence the change is likely to make a difference in what counts in a democracy: electoral results.”

In City of Santa Monica, the plaintiffs, a neighborhood organization and a city resident (“Plaintiffs”) sued the City of Santa Monica (“City”) over the City’s use of an at-large election method to elect its City Council Members.  The Plaintiffs claimed that they had been historically discriminated against in at-large elections due to their race (Plaintiffs self-identified as “Latinos”).  The trial court agreed with the Plaintiffs and ordered the City to switch from at-large to district-based voting.

The Court of Appeals reversed the trial court’s judgment, concluding the City did not violate the CVRA or the California Constitution.

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Background

Elections Code 14027, part of the California Voting Rights Act, provides in part that “[a]n at-large method of election may not be imposed or applied in a manner that 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…” (emphasis added).

Elections Code 14028 provides in pertinent part that, “[a] violation of Section 14027 is established if it is shown that racially polarized voting occurs in elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision.”  Prior to the City of Santa Monica decision, this racially polarized voting standard was typically the primary factor examined by courts and used by public entities when determining whether to avoid costly litigation and transition from at-large elections to district-based elections.

The most common type of at-large election in California is “one in which the voters of the entire jurisdiction elect the members to the governing body.” (Elections Code section 14026(a)(1)). By contrast, a district-based election (which is immune from liability under the CVRA) is defined as “a method of electing members to the governing body of a political subdivision in which the candidate must reside within an election district that is a divisible part of the political subdivision and is elected only by voters residing within that election district.” (Elections Code section 14026(b)).

In 1906, the City of Santa Monica charter divided the City into 7 districts, called wards. Voters in each ward voted for one council member to represent a ward. In 1914, the City switched from wards to at-large elections. The Court of Appeal attached great significance to the fact that in 1946, various minority groups, including the National Association for the Advancement of Colored People (“NAACP”), strongly advanced a “charter reform” which resulted in at-large elections and expanded the city council from three seats to seven.  “All minority leaders in our record supported the proposed change in 1946. None opposed it. This fact is of dominating significance in this lawsuit about race discrimination.”

Trial Court and Court of Appeal Decisions

At the time of trial, the City of Santa Monica was home to approximately 90,000 residents.  Latinos comprised about 16 percent of the City’s total population and 13.64 percent of the City’s citizen-voting-age population^[1].

At trial, Plaintiffs proposed that through the redistricting process, they could create at least one of the seven voting districts with 30 percent Latino voting power, as compared to the roughly 14 percent city-wide voting power Latinos hold in at-large elections.

On appeal, the Court found this showing insufficient to demonstrate dilution noting that “[a]ssuming race-based voting, 30 percent is not enough to win a majority and to elect someone to the City Council, even in a district system.  There was no dilution because the result with one voting system is the same as the result with the other: no representation.”

This clarification of the CVRA is significant for public agencies that currently elect their governing bodies at-large but are contemplating whether to transition to district-based voting under threat of lawsuit.  Many public agencies have similar population characteristics to those of the City of Santa Monica in that changing their method of election would not appreciably improve the chances of members of a protected class to elect representation of their choice or influence the outcome of elections in their respective jurisdictions.

Prior to this decision, many (but certainly not all) public agencies changed their method of election owing primarily to the threat of losing a potentially costly lawsuit because evidence of the existence of racially polarized voting, even where there was no evidence of dilution, appeared to be the determining factor.  Indeed, as recently as December, 2019, a federal appeals court decision challenging the constitutionality of the CVRA noted that “a finding of racially polarized voting triggers the application of the CVRA,” and the United States Supreme Court has been asked to review the court’s decision dismissing a federal constitutional challenge to the CVRA. (Higginson v. Becerra (9^th Cir. 2019) 2019 WL 8222590.) Under the CVRA, the plaintiffs, if successful, recover their attorneys’ fees. (Elections Code section 14030).  In the City of Santa Monica case for example, after prevailing at trial, the plaintiffs requested an award of their fees and costs to the tune of $22 million dollars. The legal uncertainty and potentially devastating attorney fee liability remain significant.

Next, the Court addressed the constitutional question concerning equal protection and similarly found in favor of the City on that issue.  “The central purpose of equal protection is to prevent officials from discriminating on the basis of race.” (Washington v. Davis (1976) 426 U.S. 229, 239).  Here, after reviewing evidence of the facts produced at trial; namely, circumstances and comments made in and around the City’s adoption of the at-large system in 1946 and of the City’s decision in 1992 to leave the at-large election system in place, the Court held that Plaintiffs failed to "prove the City adopted or maintained its [election] system for the purpose of discriminating against minorities" (emphasis added).

This decision has the potential to substantially change how public entities respond to demand letters under the CVRA.  At the very least, public entities will likely want to consider performing a demographic study upon receipt of a demand letter to determine whether there is evidence of dilution, as defined by the Court of Appeal, in addition to racially polarized voting.  We note that this decision was fact-based, involving a city with the plaintiff’s minority group constituting only 13.64 percent of the citizen voting age population. It is also important to note that Plaintiffs will most likely ask the California Supreme Court to review the decision, and it is possible CVRA legislation will be proposed and adopted to address the implications of this decision.  Always contact your agency’s legal counsel for assistance with navigating the CVRA.

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^[1] Citizens aged 18 years and older.

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