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Supreme Court Grants Review in Santa Monica Case: On October 21, 2020, the California Supreme Court granted plaintiffs’ petition for review in Pico Neighborhood Association v. City of Santa Monica, limited to the following discrete issue: “What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?” On its own motion the Court also depublished the Court of Appeal decision, making it uncitable both for its interpretation of the California Voting Rights Act and for its discussion of the standards for proving that a jurisdiction engaged in intentional discrimination in adopting an at-large electoral system.

Santa Monica Plaintiffs Seek Supreme Court Review: On August 18, 2020, the plaintiffs in Pico Neighborhood Association v. City of Santa Monica filed a petition for review, asking that the California Supreme Court overrule the decision of the Court of Appeal concluding that the plaintiffs had not proven their case for CVRA liability against the City of Santa Monica. The City has until September 8 to file a response, if it so chooses, after which the plaintiffs have 10 days to reply. The Court has until October 19 to decide whether to take up the case, though it can extend that time for an additional 30 days.

Court of Appeal Rejects CVRA Liability for Santa Monica; Interprets Act to Require Proof of Dilution, in Addition to Racially-Polarized Voting: On July 9, 2020, the 2nd District Court of Appeal issued a landmark ruling on the California Voting Rights Act (“CVRA”) in Pico Neighborhood Association v. City of Santa Monica. Reversing the Superior Court and ruling in favor of the City of Santa Monica, the Court of Appeal held that Pico Neighborhood Association could not prevail on its CVRA claim, because it “offered no valid proof of dilution,” that is, that the City’s at-large method of electing its City Council impaired Latinos’ ability to elect candidates of their choice or to influence the outcome of an election. The appellate court also ruled that the City of Santa Monica’s at-large elections do not violate the U.S. Constitution’s Equal Protection Clause because the evidence did not support that the City adopted or maintained the at-large system for the purpose of discriminating against minorities.

The Court of Appeal’s analysis of the CVRA claim contains two important clarifications of the Act. First, applying standard principles of statutory construction, the Court held dilution is a separate element that must be proved to prevail in a CVRA challenge. A party challenging a jurisdiction’s at-large elections must prove the method impaired a minority group’s “ability to elect candidates of their choice or to influence the outcome of an election as a result of the dilution or the abridgement of [minority] voting rights.” This means that a plaintiff must do more than prove racially polarized voting in a political subdivision that uses an at-large method of electing members to the governing body of the political subdivision.

Second, it is the plaintiff’s burden to “postulate a reasonable alternative voting practice to serve as the undiluted benchmark” against which to measure an allegedly dilutive at-large method of electing representatives. Here, Pico Neighborhood Association’s proposed district system would have resulted in one district with 30 percent Latino voting power, as compared to the 14 percent city-wide voting power Latinos hold in at-large elections. The Court of Appeal ruled that plaintiffs had not proved dilution “because the result with one voting system is the same as the result with the other: no representation.” With respect to dilution of the ability to influence the outcome of an election, the Court rejected the trial court’s standard, which would allow “any unrealized increase in a group’s percentage [to] satisfy the dilution element.” Thus, dilution requires more than a showing of a “marginal percentage increase in a proposed district, but evidence the change is likely to make a difference in what counts in a democracy: electoral results.” In Santa Monica, it was not the at-large electoral system that prevented Latino voters from electing candidates of choice or influencing the outcome of elections, it was their low numbers in the electorate.

Further, the appellate court rejected the Superior Court’s passing reference to “cumulative voting, limited voting and ranked choice voting” as systems that would “enhance” Latino voting power as perfunctory. As the trial court did not define these terms or attempt to analyze “how each might satisfy the dilution element,” the alternatives could not support the trial court’s judgment.

Plaintiffs now have the option to seek review of the Court of Appeal’s decision by the California Supreme Court. We will keep you apprised of any further developments in this case.

CVRA Petition for Certiorari Scheduled for May 21 Supreme Court Conference: Former Poway Mayor Don Higginson’s petition for certiorari, seeking to have the U.S. Supreme Court weigh in on the constitutionality of the California Voting Rights Act, is scheduled for initial consideration by the Court at its conference on May 21, 2020. It takes the votes of four justices to grant a petition.

Former Poway Mayor Asks U.S. Supreme Court to Address Constitutionality of the California Voting Rights Act: On April 6, 2020, Don Higginson, the former long-time mayor of Poway, filed a petition for certiorari in the United States Supreme Court, asking that Court to hear his case challenging the constitutionality of the California Voting Rights Act. Higginson claims that the CVRA violates equal protection by making race the “predominant” consideration in whether to have districts or at-large voting; that it must therefore survive strict scrutiny; and that it cannot do so. A federal district court in San Diego rejected the challenge in early 2019, and a three-judge panel of the United States District Court for the Ninth Circuit affirmed that ruling, in an unpublished opinion last December.

City of Martinez Defeats Challenge to Districts: On February 28, 2020, the Superior Court in the County of Contra Costa rejected a suit challenging the council district plan that the City adopted in 2018, as part of its transition from at-large voting to district-based voting in response to a threat of litigation under the California Voting Rights Act.

The map was adopted in February 2018; the plaintiffs waited until four days prior to the November 2018 election to file suit, alleging that the Council improperly balanced the policy considerations that have traditionally governed redistricting in California, including treatment of communities of interest, consideration of avoiding head-to-head contests between incumbents, compactness, and others. The Council had adopted a plan that sought to give each district shared responsibility for the City’s waterfront, downtown, and other shared municipal resources.