Last month, the Court of Appeal for the Second Appellate District of California issued a decision in Pico Neighborhood Association, et al v. City of Santa Monica (Jul. 9, 2020, No. B295935) __ Cal.App.3d __ [2020 WL 3866741] (“Pico”), finding that the City of Santa Monica’s at-large voting system did not violate the California Voting Rights Act (“CVRA”) or the Equal Protection clause of the California Constitution. This Court of Appeal decision appears to mark the first time since California enacted the CVRA into law in 2001 that a public entity has successfully defended a challenge to its at-large election system under that law.
In Pico, the plaintiffs challenged the City of Santa Monica’s at-large voting system claiming the election system discriminated against Latinx voters. Under an at-large voting system, all voters within a public agency’s geographic boundaries vote for every member of the agency’s governing body. This governing body and all of its members then represents all residents within that geographic boundary. This system contrasts with the by-district voting system proposed by the plaintiffs. Under a by-district system, an agency divides its electoral boundaries into a subset of voting districts. Candidates must run for the specific seat that will represent that voting district and only voters living within the boundaries of the voting district may vote to fill that particular seat. Under California law, an individual running for a particular seat on a governing body must reside within that district in order to be eligible to run for that seat.
The trial court in Pico ruled in favor of the plaintiffs and ordered the City to switch to a by-district voting system. The trial court also ordered the City to pay plaintiffs’ attorneys’ fees. The City of Santa Monica appealed the trial court’s decision.
On appeal, the Court of Appeal reversed the trial court’s ruling as to both the CVRA and Equal Protection claims. In its ruling, the Court of Appeal held that in order to establish a claim under the CVRA, plaintiffs must prove both the occurrence of racially polarized voting and that the voting system results in the dilution of minority voting power. For purposes of the CVRA, a protected class is a class of voters who are members of a “race, color, or language minority group” as defined by the Federal Voting Rights Act (“FVRA”). The CVRA defines “racially polarized voting” as “voting in which a protected class’s electoral preferences are different from those of the rest of the electorate in a legally significant way.” The CVRA does not define “legally significant.” However, as discussed below, whether a protected class’s electoral preferences differ in a legally significant way depends on the facts of the particular case. Additionally, although not defined by the CVRA, the Court of Appeal explained that the term vote “dilution” refers to a voting system that impairs voters in a protected class’s ability “to elect candidates of their choice,” or “to influence the outcome of an election.”
California Voting Rights Act Claim
On appeal, the plaintiffs argued that they had successfully established before the trial court that the City’s at-large election system prevented Latinx voters from influencing local elections and diluted their voting power. At the time of the trial, the Latinx community made up approximately 16 percent of the City’s total population and 13.64 percent of the City’s citizen-voting-age population. In making this argument, the plaintiffs asserted that they did not have to establish both “racially polarized voting” and voter “dilution” in order to prevail, but rather that evidence of racially polarized voting constituted sufficient evidence of dilution.
The Court of Appeal disagreed, and held that in order for plaintiffs to prevail they had to prove both dilution and racially polarized voting independently. Specifically, the Court of Appeal analyzed Elections Code sections 14027 and 14028 (sections of the CVRA) to arrive at this conclusion. Section14027 states: “[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, as defined pursuant to Section 14026.” Section 14028, subdivision (a) provides 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.” The Court explained that reading these sections only to require plaintiffs to prove racially polarized voting would have rendered the term “dilution” superfluous, when dilution is “a core part of the voting rights vocabulary” under U.S. Supreme Court precedent.
After setting forth this two-element standard, the Court of Appeal held that plaintiffs had failed to establish the element of dilution. In determining whether plaintiffs presented evidence of dilution, the Court of Appeal addressed plaintiffs’ contention that their proposed by-district election system would increase the electoral “influence” of Latinx voters by increasing their percentage of voting power. Specifically, the plaintiffs argued that under a by-district system, Latinx voters would hold 30 percent of the voting power, as compared to having 14 percent of the voting power in the at-large system and that such an increase in influence was sufficient to establish the element of dilution.
The Court of Appeal rejected the plaintiffs’ argument. The Court of Appeal explained that the plaintiffs’ definition of “influence” was unsustainable because it would “merely ensure plaintiffs always win.” Specifically, the Court of Appeal found that showing a marginal percentage increase in influence in a proposed district is insufficient to establish dilution. Instead, dilution requires that the change is likely to make a difference in electoral results. Therefore, the Court of Appeal held that plaintiffs did not prove dilution because the result of the at-large and by-district system for Latinx voters would have been the same, i.e. under either system, even if every Latinx voter voted for the same preferred candidate, absent additional votes cast for that candidate, the percentage of Latinx voters in the City of Santa Monica would be insufficient alone to elect the preferred candidate. However, the Court of Appeal left open the possibility that, if presented with different set of facts, voter influence could have a legally significant impact on a protected class’s voting power.
The Court of Appeal’s ruling regarding the CVRA departs from recent trial court rulings and clarifies the standard by which a plaintiff must prove an at-large election system violates the CVRA. In fact, given that it appears that no other court has utilized the standard articulated by the Court of Appeal in Pico, this decision appears to have established a new standard by which a plaintiff must prove a CVRA violation. Specifically, the standard articulated by the Court of Appeal in Pico requires a plaintiff to establish dilution as a separate part of their claim, whereas prior trial courts identified racially polarized voting as evidence of dilution. For example, in Sanchez v. City of Modesto, the Court of Appeal stated that “Section 14028 [of the CVRA] lists facts relevant to proving a violation: The dilution or abridgement described in section 14027 is established by showing racially polarized voting (Elec. Code, § 14028, subd. (a).).” (Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 670.) (Emphasis added.)
Plaintiffs next argued the City’s at-large system violated the Equal Protection clause of the California Constitution. The Court of Appeal found no violation. The trial court had found that when the City twice upheld the at-large voting system, the City violated the Equal Protection clause of the California Constitution because the City acted to suppress Latinx political power. The Court of Appeal, however, explained that the trial court had applied an erroneous legal standard because it departed from the Equal Protection standard that knowledge of consequences does not prove a purpose of racial discrimination.
The Court of Appeal examined whether the City implemented its at-large system for discriminatory purposes. The Court of Appeal examined the City’s decisions in 1946 and 1992 to adopt and maintain, respectively, an at-large voting system. In 1946, the City adopted the at-large system it uses today. The Court of Appeal, after pointing to evidence that “100 percent” of the leaders of the minority community at the time publicly supported the City’s decision, held that the City did not adopt the at-large system for the purpose of discriminating. Then in 1992, a City-appointed commission issued a report recommending that the “status quo should change.” However, despite the City Council and public speakers seeking ways to increase “minority empowerment,” the City was unable to decide what change to make and therefore recommended further research before the Council took action. The Court of Appeal ruled that these series of actions also did not show racial discrimination. Thus, the Court found there was no evidence that the City purposefully engaged in racial discrimination.
As to both the CVRA and constitutional claims, the Court of Appeal reversed the trial court’s ruling and directed the trial court to enter judgment in the City’s favor. The Court also ordered plaintiffs to pay the City’s costs.
What Pico Means for Public Agencies
It seems likely that the plaintiffs will appeal this case to the California Supreme Court. If the California Supreme Court declines to review the case, or upholds the Court of Appeals’ decision, Pico may make it more likely that public agencies will vigorously litigate citizens’ claims that at-large voting systems presumptively violate the CVRA. As we have previously addressed, the Elections Code provides a mechanism for a citizen to challenge an agency’s at-large election method if the citizen believes the at-large system impairs the ability of a protected class to elect candidates or dilutes the rights of voters of a protected class. Specifically, under Elections Code section 10010, a citizen of voting-age within an agency’s geographic boundaries may bring a claim against a public agency under Sections 14027 and 14028 of the CVRA, but only if the citizen (“prospective plaintiff”) first serves on the public agency a written notice, i.e. a pre-litigation notice which asserts that the agency’s “method of conducting elections may violate the [CVRA].” In recent years, several prospective plaintiffs served agencies across California with these written notices. Many agencies, recognizing that CVRA litigation is very expensive and, at least under pre-Pico standards, difficult for an agency to win, elected to settle at the pre-litigation stage and voluntarily shift from at-large to by-area elections. However, assuming Pico remains the applicable standard, agencies may now think twice before settling at the pre-litigation stage.
We will follow the case closely and provide further updates.