Court battles could test constitutionality of California voting rights law

When most people think of landmark voting rights cases, places like Alabama or North Carolina, not Santa Monica, usually come to mind.

But last month, a judge in the affluent, left-leaning coastal enclave ruled that Santa Monica’s system of at-large City Council representation “intentionally discriminated� against its growing Latino population.

Los Angeles County Superior Court Judge Yvette M. Palazuelos ruled that the city must act to “eliminate the taint of the illegal at-large election system.� The court’s decision that Santa Monica must apportion its seven council seats among seven new geographically based districts has pierced the city’s image of tolerant inclusivity.

“Everyone thinks of Santa Monica as a liberal bastion of very open-minded people, and yet the court’s findings describe a history that’s much more sullied than people are aware,� said UC Irvine professor Richard L. Hasen, an election law expert.

The city announced last month that it would appeal the decision. That move delayed the special by-district election for the entire City Council, which had previously been scheduled for July 2.

But the stakes here go beyond Santa Monica and its 92,000 residents.

Palazuelos’ decision marks the latest in a string of at least 50 legal victories for a crusading Malibu lawyer, Kevin Shenkman, who is using the threat of lawsuits to pressure cities across the state to change their council election systems. His principal weapon has been the California Voting Rights Act, which was signed into law in 2002 and lowers the bar set in the federal 1965 Voting Rights Act by making it easier for minority groups to pressure city councils to switch from at-large to by-district elections.

“I’m thrilled that the judge saw through Santa Monica’s liberal facade and realized that power knows no ideology,� Shenkman said in an interview.

By his own acknowledgment, Shenkman has profited handsomely from his campaign, because when cities lose or settle a voting rights case they are required to pay the plaintiff’s legal fees.

Nearly 330 California jurisdictions have changed or are changing to by-district elections as a result of the law, according to National Demographics Corp., a consulting firm that helps cities navigate the redistricting process. Shenkman estimates there still are around 350 cities with at-large city councils that could be challenged.

Yet some legal opponents and critics contend that, by pushing cities to switch to by-district elections, Shenkman inadvertently has exposed the California law to court challenges that could ultimately undermine its purpose, a point that he disputes.

One protracted battle is underway in the San Diego County city of Poway, which switched to by-district elections in 2017 after being threatened by Shenkman. In that city of 49,000, about 15% of residents are Latino.

Now a conservative group is backing Poway’s former mayor in a federal court fight,arguing that the California law forces ethnic gerrymandering on unwilling citizens and their elective bodies. The case is before the U.S. 9th Circuit Court of Appeals and eventually could land in the Supreme Court.

Together, the Santa Monica and Poway cases have set the stage for a showdown over the viability of California’s law and fueled an increasingly bitter national debate over how election districts are drawn.

“This [Santa Monica] case and the Poway case are really setting up to be the major tests of the constitutionality of the California Voting Rights Act,� Hasen said.

The Santa Monica case began in 2015, when Shenkman sent a letter to the city saying that its at-large election system, which had been in place for more than seven decades, violated the California Voting Rights Act and the state Constitution’s equal protection guarantees.

Previously, Shenkman had successfully sued the city of Palmdale, forcing the Antelope Valley community to change the structure of its City Council and pay him millions in legal fees. But Santa Monica didn’t back down; it hired the blue-chip firm Gibson, Dunn & Crutcher to defend it when Shenkman sued in 2016.

Shenkman had enlisted Maria Loya, a Pico neighborhood resident, to serve as the plaintiff. Both she and her husband, Oscar de la Torre, who is on the board of the Santa Monica-Malibu Unified School District, had previously run for City Council and lost. Their base of support comes from the Pico neighborhood, where one-third of the city’s Latino population lives.

According to the city, Santa Monica’s population is 65% white, 16% Latino, 10% Asian, 5% mixed race and 4% black. Latinos make up 13% of Santa Monica’s registered voters.

In her decision, Palazuelos declared that the city’s at-large elections abetted a decades-long pattern of disenfranchising its Latino population. The judgment noted that in the 72 years since the current election system was set up, only one Latino had been voted onto the council.

Palazuelos concluded that Shenkman and his team were able to show that the Latino minority’s voice was diluted by the City Council’s at-large structure. Experts for both the city and the plaintiffs found that over the last 24 years, “a consistent pattern of racially polarized voting emerges,� she wrote.

But the judge went a step further. In creating the city’s at-large election system in 1946 and then voting to preserve it in 1992, Santa Monica knowingly discriminated against nonwhites, she wrote.

“The current members of the Santa Monica City Council were elected through unlawful elections,� Palazuelos wrote. “Latino residents of Santa Monica, like all other residents of Santa Monica, deserve to have their voices heard in the operation of their city.�

In addition to mandating a seven-district map, which was drawn by the plaintiffs, and new elections, Palazuelos declared that the current City Council “is prohibited from serving� after Aug. 15. The judge in the case declined to clarify whether this deadline would be delayed. For now, it stays in place.

Both Loya and De la Torre said that if Santa Monica’s appeal of the case fails and by-district elections are held, they would consider running for office again.

“Many people in our neighborhood have been talking about how there’s been a deliberate effort to marginalize our community and use it as a dumping ground,� Loya said.

Lawyers for the city believe that an appeals court could end up reversing some of the judge’s conclusions. They argue that this ruling will not create a majority-minority district in the Pico neighborhood or fulfill the plaintiff’s goal of getting more minorities elected to the City Council.

“The plaintiff persuaded the court to adopt a view of the law that flatly contradicts the California Voting Rights Act,� said Theodore Boutrous Jr., a partner at Gibson, Dunn & Crutcher.

Shenkman’s victory in Poway has led other critics to question his tactics. Lawyers for former Poway Mayor Don Higginson have argued in federal court that the California Voting Rights Act makes race into the single animating factor when cities change from at-large to by-district representation. This, they say, violates the 14th Amendment of the U.S. Constitution.

Higginson is represented by lawyers funded by the Project on Fair Representation, an Arlington, Va.-based nonprofit organization run by Edward Blum. A former financial advisor with no law degree, Blum acquired a national reputation by persuading officials in Shelby County, Ala., to sue the federal government in a challenge to a key provision of the Voting Rights Act of 1965. He also gained attention for challenging race-conscious admissions policies at Harvard, the University of North Carolina and other colleges.

Blum believes that using race alone as the determining legal factor in these instances is “anathema to the founding principles of the civil rights movement.�

“Individuals in small cities like Poway are now being forced into designated racial voting districts,� he said. “There are important legal and policy issues at stake with the Higginson case and the Santa Monica case, and they have to do with the elevation of race and ethnicity above all other common elements of governance.�

Douglas Johnson of National Demographics Corp., who has consulted for cities that have been challenged under the California Voting Rights Act, suggested that Shenkman’s work in the Poway case could backfire for the broader movement.

“The irony is that what Shenkman did in getting Poway to change its council could mean that the CVRA gets struck down by a higher court,� he said.

Shenkman doesn’t doubt the constitutionality of the California law and says that his legal challenges are simply about applying the legislation as it is written.

Despite the ruling against the city, Santa Monica still believes that its size and geography are best suited for an at-large council.

Mayor Gleam Davis has been a Santa Monica resident since 1986, on the City Council since 2009 and mayor since last fall. She argues that all citizens are better served when they have seven elected council members working to fulfill the city’s collective best interests.

She also rejects the view that the court ruling exposed the city as a hotbed of discrimination, rather than a place where people “are really trying to pull in all the same direction.�

“These districts will break up that solidarity of interests and create little Balkan states,� she said. “They will start to compete against each other and not pull in the same direction.�

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