Santa Monica Election Litigation FAQ

   

Frequently Asked Questions

Pico Neighborhood Association and Maria Loya v. City of Santa Monica

Los Angeles Superior Court, Case Number BC616804

 

What is this lawsuit about? 

The Santa Monica City Charter establishes that members of the Santa Monica City Council and of the governing board of the Santa Monica-Malibu Unified School District (SMMUSD) will be elected from the City at large.  In April 2016,  plaintiffs Pico Neighborhood Association, Maria Loya, and Advocates for Malibu Public Schools filed a complaint in the California Superior Court alleging that the at-large election system for both the City Council and SMMUSD Board dilutes Latino/a voting power in violation of the California Voting Rights Act (CVRA) and discriminates against Latino/a voters in violation of the Equal Protection Clause of the California Constitution.  Advocates for Malibu Public Schools later withdrew from the suit following a determination by the SMMUSD Board that the lawsuit would delay consideration of separating the Malibu and Santa Monica school districts.  The remaining plaintiffs filed a first amended complaint on February 23, 2017, which challenges the Charter provision requiring at-large election of Santa Monica City Council members.  This first amended complaint was the subject of the trial in this case.   

What is the California Voting Rights Act? 

The California Voting Rights Act was enacted in 2001.  The law purported to make it easier for plaintiffs in California to challenge allegedly discriminatory voting practices, compared with the federal Voting Rights Act.  But California’s courts have never definitively resolved what a plaintiff must prove to show a violation of the CVRA.  The CVRA also mandates the award of attorneys’ fees to prevailing plaintiffs, but there is no corresponding right of defendants to recover attorneys’ fees if they prevail, unless the court finds the suit to be “frivolous, unreasonable, or without foundation,” which is a very high standard. 

Have other California cities been sued or threatened with suits under the California Voting Rights Act?

The same private plaintiffs’ attorneys that represent the plaintiffs in this suit against the City of Santa Monica have sued and threatened to sue scores of cities across California.  Since 2001, approximately 115 California cities of all sizes, including some with less than 10,000 residents, have been sued or threatened with suits under the CVRA seeking to compel them to change to district-based elections.  Most municipalities that have received litigation demand letters have settled prior to litigation.  Many of the targeted California cities have believed as strongly in their at-large election systems as the City does, but have reluctantly switched to district elections, out of fear of overwhelming legal costs and concern that a defense might not succeed. 

Have these other suits resulted in significant increases in minority representation?

As used by these plaintiffs’ attorneys, the CVRA has generated millions in attorneys’ fees for the plaintiffs’ attorneys and forced vast changes in local election systems, while failing to significantly increase minority representation. According to the Los Angeles Times, of cities that switched to districts in response to litigation demands between June 2016 and April 2017, less than one-third saw any increase in minority representation. 

What happened at trial in this case?

Trial began on August 1, 2018, in Los Angeles Superior Court.  The presentation of evidence was completed on September 11, 2018, and the parties were then ordered to file briefs making their arguments regarding the evidence presented at trial.  Plaintiffs filed their closing brief on September 25, 2018.  The City’s closing brief was filed on October 15, 2018.  Plaintiffs filed their rebuttal closing brief on October 25, 2018.  On November 8, 2018, the court issued a tentative ruling in favor of plaintiffs on both their CVRA and Equal Protection causes of action.

What happens next in this case?

The court’s tentative ruling contained no explanation.  Under California statutes and court rules, the City is entitled to have the court file a statement of decision explaining the factual and legal bases for its tentative decision.  On November 15, 2018, the City filed a request for a statement of decision.  The City’s request sets out in detail the many legal and factual issues the City believes the Court would need to resolve in arriving at a final ruling.  On November 26, 2018, plaintiffs filed their objection and response to the request for a statement of decision in which, among other things, they requested that the court delegate to them the drafting of the statement of decision.  On November 28, 2018, the court issued an order granting plaintiffs request and directing them to file and serve a proposed statement of decision by January 2, 2019.

Will there be a final determination regarding liability on January 2, 2019?

Under court rules, once the proposed statement of decision is served, the City will have 15 days to serve and file objections to the proposed statement of decision.  After that, the court may hold a hearing before reaching a final decision, or may issue a final decision and judgment without a hearing. 

Does the City agree with the Court’s tentative decision?

The City still hopes to convince the court to change its tentative decision and rule in the City’s favor.  The City continues to believe that plaintiffs’ claims lack merit, and that the evidence at trial demonstrates that Santa Monica’s at-large election system for City Council members is fair and inclusive and does not dilute Latino/a voting power.

First, Santa Monica’s demographics differ substantially from other cities that have litigated CVRA cases.  Latino/as constitute approximately 13% of citizen voting age population and 16.10% of total population in Santa Monica.  By contrast, the relevant minority groups constituted approximately 58.6% of the total population in Palmdale, 49.2% in Highland, and 40.4% in Santa Clara, the three other cities that have gone to trial and lost on CVRA claims.

Second, Santa Monica has a history of electing people of color, including Latino/as, to a variety of local positions. At the time the lawsuit was filed, Santa Monica had a Mexican-American Mayor.  Our City Council has had at least one Latino/a member since 2012, and Latino/as and African-Americans have been elected to positions on the City Council, Rent Control Board, SMMUSD Board, and Community College Board.  In fact, without district-based elections, Latino/as, who make up approximately 13% of Santa Monica voters, hold at least 1 out of 7 (14%) of the City Council seats and 4 out of 19 (21%) of the City’s other elected positions on the Rent Control, SMMUSD, and Community College Boards.

Third, the evidence at trial showed that under the at-large election system, between 2002 and 2016, candidates preferred by Latino/a voters won at least 70% of the time in Santa Monica city council races. Even in the limited sample of seven City Council elections relied on by plaintiffs, candidates preferred by Latino/a voters won at least 60% of the time.  The evidence at trial also showed that Latino-surnamed candidates who were also preferred by Latino voters won over 80% of the time among Santa Monica voters in the at-large elections for the SMMUSD, SMC, and Rent Control Boards that Plaintiffs claimed involved “racially polarized” voting.

Would a move to a district-based election system generate better outcomes for Latino/a voters?

It is impossible to draw a majority-Latino district in Santa Monica because Latino/as do not constitute a majority of voters in the Pico neighborhood or any other neighborhood.  Plaintiffs agree that no district can be drawn in Santa Monica that has more than 30 percent Latino voters – far from a majority – and no court adjudicating a vote-dilution claim has ever ordered the creation of districts where the citizen-voting-age population of the relevant minority group in the purportedly remedial district would be this low.  A district system would prevent Latino/a residents from organizing together across neighborhoods, as they can in the at-large system.  Approximately 2/3 of Latino/a residents in Santa Monica live outside of the proposed Pico district.  In the district system proposed by the plaintiffs, these Latino/a voters would be in districts with overwhelmingly white majorities.

Would a district-based election system be better for Santa Monica?

The City disputes the lawsuit’s claims that the current system discriminates against Latino/a voters in violation of statutory and constitutional law.  The policy question of whether a district-based election system would be better for Santa Monica is best left to the voters.  Santa Monica residents have voted on the issue of whether to amend the Charter to switch to district-based elections and have twice rejected proposals to move to district-based elections – in 1975 (rejecting failed Proposition 3) and in 2002 (rejecting failed Measure HH).  One benefit of the at-large system is that it allows every resident to vote for every member of the City Council, casting ballots for three to four Council members every two years.  Under a district-based system, residents would be limited to voting for only one Council member, and only once every four years.  But if voters prefer a district-based system for policy reasons, they have the opportunity to propose a charter amendment through the democratic process.  The recent success of the term limit amendment demonstrates that where voters want a change in the election system, it will happen. 

Has the court issued any decision regarding remedies?

In the same order in which it stated its tentative decision, the court ordered the parties to file briefing on remedies and set a hearing on remedies for December 7, 2018.   Plaintiffs filed their remedies brief on November 19, 2018, asking the court to order the City to conduct a special election on April 16, 2019 based on a seven-district map designed by plaintiffs’ expert and presented by the plaintiffs at trial.  The City filed its responding remedies brief on November 30, 2018.  The City maintained its position that no remedy should be ordered because plaintiffs have failed to demonstrate that the current at-large election system dilutes Latino/a voting power.  The City agreed that if a remedy was warranted, it should be a move to districts.  The City, however, objected to the seven-district map proposed by plaintiffs, arguing instead that the court should not impose a map drawn by the plaintiffs’ expert with input from only a small group of community members.  Rather, any district map adopted should be drawn with a full public hearing process, as called for by the California Elections Code.  The City also argued that no district-based election should be ordered until after the City has the opportunity to review the court’s final decision and determine whether it will appeal.  On December 4, 2018, plaintiffs filed a reply brief regarding remedies, contending that the City’s position would result in inappropriate delay in holding district-based elections.  On December 7, 2018, the court held a hearing at which it heard argument from both sides and then took the remedies issue under submission.  The court did not provide an anticipated time for its decision. 

Has the seven-district map proposed by plaintiffs been the subject of broad public input?

The seven-district map designed by plaintiffs’ expert and presented by the plaintiffs at trial has never been the subject of public hearings as required by the California Elections Code when a change is made from at-large to district-based elections.  The City believes that Santa Monica’s voters should have the opportunity to provide public comment on any district map.  As evidenced by the relevant Elections Code requirements, which call for a series of at least four public hearings, any districting plan should be designed through an inclusive, democratic process, subject to judicial review and approval.

If the trial court rules for the plaintiffs, does the City intend to appeal?

If the trial court makes a final ruling in favor of the Plaintiffs, the City will consider its options, including appeal, and determine the best course of action to support the community.  The City has long anticipated that an appeal would be filed by either party in this case, given the many legal issues raised that have never been decided by the courts of appeal.  A final decision on appeal, however, will not be made until the court issues its final decision and the City has the opportunity to review that final decision.     

Does this case pose issues of law that the California Courts of Appeal have not yet resolved?

The case involves key questions of law that have never been resolved by the California Courts of Appeals.  With respect to the CVRA, issues that have never been resolved by the Courts of Appeal include: 

  • What are the elements the plaintiffs have to show to prove a violation of the CVRA? 
  • For purposes of the CVRA, who counts as a Latino-preferred candidate? 
    • Plaintiffs argue that only Latino candidates (or, more specifically, candidates with Latino surnames) can be considered Latino-preferred, while the City contends that the court should also consider non-Latino candidates who are cohesively preferred by Latino voters. 
    • Plaintiffs argue that Latinos can prefer only one candidate per election, even though voters cast up to four votes in each election, while the City contends that Latino voters can and do cohesively vote for multiple candidates in multi-seat elections.
  • Is an election “racially polarized” for purposes of the CVRA where Latino and white levels of support for candidates differ, but the Latino-preferred candidate wins?  Plaintiffs argue that these elections help prove a CVRA violation, even when the Latino-preferred candidate wins. 
  • Should at-large elections for the SMMUSD, SMC, and Rent Control Boards be considered? The City demonstrated that Latino-surnamed, Latino-preferred candidates won over 80% of the time among Santa Monica voters in at-large elections for the SMMUSD, SMC, and Rent Control Boards that Plaintiffs claim involve “racially polarized” voting.  Plaintiffs argue this is irrelevant, despite multiple court decisions saying such “exogenous” elections should be considered.

What do plaintiffs need to show to prove a violation of the California Constitution’s Equal Protection Clause?

Plaintiffs argue that the City intentionally discriminated against Latino/a voters by adopting and maintaining its at-large system. But Santa Monica has had at-large elections since 1915, and the move to the current system of seven council members elected at large in 1946 actually increased minority voting power, both by expanding the size of the council and removing designated posts.  Plaintiffs have not shown that any alternative method of election would have enhanced minority voting power at any time since 1946.  Latino/a voters in Santa Monica have been and remain too dispersed throughout the City for a district-based system to enhance their voting strength.

Plaintiffs theory of “intentional discrimination” in 1992 effectively reduces to speculation that a single councilmember in 1992 opposed a switch to districts not because he harbored racial animus, but because he wanted to maintain SMRR’s ability to “dump” affordable housing in the Pico Neighborhood. This is contrary to the evidence. As evidenced by the video recording of the 1992 proceedings, no councilmember said any such thing, and SMRR was co-chaired at the time by the leader of the commission that recommended a change in election systems.  Additionally, affordable housing is spread throughout the City and has been welcomed by many community members in the Pico Neighborhood.  Unfounded speculation about a single councilmember’s intentions cannot be the basis for overturning an entire City’s election system.

Would pursuing an appeal be a reasonable course of action?

In cases such as this, pursuing an appeal is a reasonable course of action.   First, courts of appeal are best suited to resolve contested questions of law.  Second, the City has already laid its factual record through two years of litigation and a six-week trial.  An appeal requires only written briefs and a 30-minute argument -- a small fraction of the work and expense of lengthy trial court proceedings.  Third, not filing an appeal would be in the interest of the plaintiffs’ attorneys.  By not filing an appeal, the City would potentially be agreeing to pay all of the plaintiffs’ attorneys’ fees, without allowing the court of appeal to weigh in on the multiple contested legal issues in the case.  Finally, by not filing an appeal, the City would be abandoning the at-large system voters have chosen as the preferred election method, without a vote of the people.

Could the court’s tentative decision delay the seating of the three City Council members elected in November 2018?

The City would oppose any attempt to delay the seating of the three City Council members elected in November 2018 under the City’s current at-large election system.  On November 26, 2018, plaintiffs filed an application seeking to have the court order the City not to certify the results of the November 2018 City Council election.  The City opposed this application, arguing that there was no basis for disregarding the voters’ most recent choice of three Council members and instead retaining the old Council, when both the new and old Council members had been elected under the same at-large system.  On November 27, 2018, the court agreed, and denied plaintiffs’ application.  On November 30, 2018, the County certified the election results, and the three newly-elected City Council members are scheduled to be sworn in at the City Council meeting on December 11, 2018.

Why did the judge issue sanctions against the plaintiffs and their attorneys in this case?

The court ordered $21,612.50 in sanctions against plaintiffs and their attorneys after testimony at trial showed that plaintiffs and their attorneys engaged in a misuse of the discovery process and provided “no coherent explanation for their decision to not search for emails in response to [the City’s] discovery requests.”  Despite acknowledging the existence of various email accounts, a plaintiff, in accordance with advice from the plaintiffs’ attorneys, “for reasons unexplained did not search any such accounts at all in response to discovery requests.” 

Is SMMUSD involved in this case?

When the complaint was originally filed in April 2016, Advocates for Malibu Public Schools (AMPS) was one of the plaintiffs.  AMPS later withdrew from the suit following a determination that the lawsuit would delay consideration of separating the SMMUSD.  At-large elections for SMMUSD seats have not been at issue in this case.  Indeed, the school district has long had even higher Latino representation than the Santa Monica City Council.  Two out of seven current SMMUSD Board members are Latino/a, and 8 out of 9 Latino/a candidates won in school board elections that the plaintiffs argued at trial were “racially polarized.” 

Where can I find more information?

Community members who wish to stay apprised can find relevant pleadings online at:  https://www.santamonica.gov/Election-Litigation-PNA-V-Santa-MonicaThe FAQs and webpage will be updated as the trial proceeds.

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