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City of Santa Monica the “One Hold Out” in Voting Rights Litigation, Lawyer says

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Harding, Larmore
Kutcher & Kozal, LLP

By Niki Cervantes
Staff Writer

May 18, 2017 -- One by one, they fold, either willingly or nudged by a judge.

But in the wake of dozens of California Voting Rights Act lawsuits filed against the state’s municipalities, only the City of Santa Monica -- a proud bastion of liberalism -- is still fighting litigation meant to usher in more minority representation on the City Council, says a lawyer prominent in the wave of change.

“Santa Monica is the one holdout,” said Kevin Shenkman, the Malibu attorney who filed the Voting Rights lawsuit against Santa Monica on behalf of Hispanic groups and others in April of 2016.

He has filed, or threatened to file, Voting Rights lawsuits against cities from Fremont, in the southeast section of the San Francisco Bay Area, south to municipalities in San Bernardino County and in the San Diego area.

In response, those cities have changed, or are in the process of changing, to by-district voting.

Rancho Cucamonga -- which Shenkman said was the second most-resistant city to district voting he has encountered -- put the issue to a vote in the November elections. The measure for by-district voting won by a healthy margin.

The Santa Monica lawsuit alleges that a City report commissioned in 1992 concluded that Santa Monica's leaders in 1946 adopted at-large elections intentionally “to keep minority residents living in the southern portion of the City from achieving representation” ("Santa Monica Facing Lawsuit Over At-Large Council Elections," April 13, 2016)

“The current at-large election system is illegal and has led to a lack of representation in local government, which in turn has led to neglect of our community,” one of the plaintiffs, Maria Loya, said when the lawsuit was filed.

A Latina activist who ran unsuccessfully for the council, Loya is joined in the lawsuit by the Pico Neighborhood Association (PNA), which represents Santa Monica's largest minority area.

“They want to hold onto their jobs,” Shenkman said of the council’s seven members.

The City declined to comment on the ongoing litigation.

Santa Monica’s trial date is scheduled for October 30.

Two longstanding Santa Monica council members -- Pam O’Connor, who was first elected in 1994, and Kevin McKeown, who was first elected in 1998 -- face re-election next November, as does Sue Himmelrich, who is seeking a second term.

Oscar de la Torre, a Pico neighborhood activist who ran for City Council last November, said he is not surprised Council members would fight to keep their seats.

"Power is power, whether conservative of liberal, they will try to keep their power," said de la Torre, who heads the Pico Youth and Family Center that caters to at-risk youth. "These people die in office. They don't want to leave."

De la Torre, a Santa Monica-Malibu School Board member, noted that two of the current council members were initially appointed to fill seats vacated by Ken Genser, who served 21 years on the council, and Herb Katz, who served 16 years ("O'Day Picked for Vacant Council Seat," February 24, 2010, and "Davis Picked to Fill Katz’s Seat," February 25, 2009).

The Voting Rights movement hopes to boost the chances of electing new members -- especially minorities -- by carving out districts in cities that hold at-large elections, where more money is required to reach voters.

California’s biggest cities -- Los Angeles, San Francisco and San Diego –- and some larger cities, like Pasadena, use by-district voting for council races.

It is the method Shenkman and others are trying to force into place by taking at-large municipalities to court.

For cities, a loss means a judge has the final say on how they are apportioned into voting districts.

Santa Monica's at-large system has been the target of complaints about discrimination dating back to its inclusion in the 1946 City Charter.

A number of attempts to switch to district voting have rumbled through the city ever since, including a voter initiative in 2002 that was soundly defeated, though none prompted the switch.

Then came the 2012 lawsuit in Palmdale, which rippled throughout California municipalities, although mostly concentrated to the south.

Filed by Shenkman, the suit charged that Palmdale’s at-large voting violated the California Voting Rights Act of 2001 by diluting the potential impact of minority communities, therefore serving as barrier to fair minority representation.

The law, built upon the earlier federal Voting Rights Act, allows residents to sue local governments if their election systems dilute the strength of minority voters.

The suits, if successful, force a change to elections in newly drawn districts, including some that have a majority or plurality of eligible minority voters.

It also allows those filing the suits to be monetarily compensated for their costs.

At first, Palmdale officials resisted the lawsuit.

The following year, a Los Angeles County Superior Court judge ruled the city's at-large voting system was illegal and ordered officials to establish a new system of district elections.

Palmdale appealed. But in May of 2015, the City announced it was switching to by-district council elections and aligning them with the general November elections.

Shenkman said he sent 25 letters to cities warning of violations of the Voting Rights Act, and the possible threat of litigation. All the cities have significant Hispanic populations and were using at-large election systems.

All but one, Santa Monica, complied and adopted district voting to avert litigation, he said.

Palmdale paid the Voting Rights plaintiffs about $4.6 million.

Shenkman estimates the City of Santa Monica will owe at least $2 million, including remuneration to the outside law firm he said is providing counsel, Gibson, Dunn & Crutcher.

The cost of litigation is “usually a big motivator” for cities, he said. Such was the case following the court-ordered multi-million payment to the Palmdale plaintiffs.

“I’m amazed at what Santa Monica is willing to use taxpayer dollars on,” Shenkman said. “Think of what that money could have been spent on, all the services.

"It’s waste of tax dollars for (fighting) something we know is going to happen.”