By Jorge Casuso

June 30, 2020 -- A California Appeals Court on Tuesday issued a tentative opinion finding that Santa Monica's at-large election system does not intentionally discriminate against Latino voters.

If the opinion is finalized, it would reverse a February 2019 Superior court ruling that ordered Santa Monica to adopt District elections.

That decision would be a blow to political activists who have been counting on district elections in November to upend a City Council traditionally made up of re-elected incumbents.

"A showing of a racially disproportionate impact alone is insufficient," said the preliminary opinion obtained by The Lookout. "Discriminatory purpose requires more than knowledge of consequences.

"It implies the decision maker selected or reaffirmed a particular course of action not in spite of adverse impact on a group, but because of that impact."

The plaintiffs, the Pico Neighborhood Association (PNA) and Latina activist Maria Loya, failed to show that was the intent of Santa Monica voters when they adopted at-large elections in 1946, the 2nd District Court of Appeal said.

The three-judge panel also tentatively found that the plaintiffs "failed to show the at-large system was the reason Latinos have had trouble getting elected to the City Council.

"If one assumes groups vote only for candidates from their own group -- as is Pico’s premise for this suit and the Act’s application -- then the reason for Latinos’ lack of electoral success in Santa Monica would appear to be that there are too few Latinos to muster a majority, no matter how the City might slice itself into districts or wards.

"At-large voting would not seem to be to blame," the Court wrote. "Small numbers would."

In its tentative opinion, the judges focused on the plaintiffs' failure to prove that Santa Monica's at-large election system "diluted" the voting power of Latinos, who make up 14 percent of the local electorate.

Carving out a District with 30 percent Latino voters, as mandated by Superior Court Judge Yvette M. Palazuelos, would make little difference, the court said ("Judge Orders Special District Elections for Council in Final Ruling," February 15, 2019).

"Assuming 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," the court wrote.

"It would seem there was no dilution because the result with one voting system is the same as the result with the other: no representation."

During oral arguments, Justice John Shepard Wiley Jr. homed in on the issue of dilution, repeatedly questioning plaintiff attorney Kevin Shenkman on where to draw the line.

Was going from "14 to 30 percent enough?" he asked. "How about going from 14 to 14.1 percent?

"You have to define a line," Wiley said. "What is the line?"

Shenkman said setting a specific number wasn't what was important, arguing there was evidenceplaintiff Maria Loya would have won a Council seat in 2004 under district elections.

"In a seven-member system, Maria Loya would have won," Shenkman said. "There can be no doubt that the at-large system diluted the Latino vote."

It is misleading to focus on a percentage threshold without looking at the "practical reality of the political situation on the ground," Shenkman said.

Wiley also noted that while the plaintiff's denounced racially polarized voting, their arguments relied on such voting if a Latino hoped to be elected in a 30 percent Latino District.

"You embrace it when it helps and abandon it when it hurts," Wiley said.

The court also questioned the plaintiffs' reliance on "three types of historical artifacts" -- 1946 newspaper excerpts and voting records, the 1992 Charter Review Commission report and the July 7, 1992 City Council meeting video.

"No eyewitnesses (apart from Antonio Vazquez, whom Pico never questioned about discriminatory intent) testified to the crucial events in this case," the Court wrote, referring to the first Latino elected to the City Council in 1990.

Having experts testify about "these written and video artifacts," the court wrote, "seems irrelevant."

“'Expert' opinion about how a court should interpret a 1992 video, for instance, seems simply to be partisan advocacy in the guise of evidence," the court said.

"This type of 'expert' testimony would seem to boil down to argument, not evidence."

If the Court put Shenkman on the defensive, it seemed to agree with the arguments presented by Theodore J. Boutrous Jr., of Gibson Dunn & Crutcher LLP, the high-powered law firm hired by the City.

The plaintiff's case, Boutrous told the judges, "doesn't even come close to the standards of proving intentional discrimination."

The Court is expected to issue a final decision by July 10.