City of Santa Monica Enters Second Year of Fight Against Voting Rights Lawsuit

By Niki Cervantes
Staff Writer

April 19, 2018 -- Legal costs are rising, although it is not clear how much the City of Santa Monica has spent on the Voting Rights lawsuit filed by local Latino activists that is entering its second year.

Santa Monica officials say they have not tallied the specific cost of fighting the California Voting Rights Act (CVRA) lawsuit filed in April 2016 by activists in the Pico Neighborhood, Santa Monica's poorest and most racially diverse area ("Santa Monica Facing Lawsuit Over At-Large Council Elections," April 13, 2016).

In 2017, total fees to the outside firm handling the suit -- Gibson, Dunn and Crutcher -- were nearly $5 million, although the price tag included other legal matters, said Finance Director Gigi Decavalles-Hughes.

The plaintiffs' attorney, Kevin Shenkman, said he estimates the suit so far has cost the City about $4 million.

“In that neighborhood I’d say,” he said.

No other California municipality (or other public entity) has yet to win a Voting Rights lawsuit outright, and many have not been willing to fight at all.

The “risks and costs associated with protracted CVRA litigation -- particularly in light of results in all other cities that have fought to retain at-large voting -- cannot be ignored.”

That was the message Torrance City Attorney Patrick Q. Sullivan delivered to the City Council shortly before it joined dozens of other public entities in voting to bail instead of engaging in a legal fight.

For a variety of reasons, “all these cities," he said, "ended up converting to district elections.”

On Monday, Torrance’s council began the process of switching, holding a public hearing on carving out districts.“The public interest may be ultimately better served,” Sullivan concluded.

Sullivan said his office found CVRA lawsuits so far cost California cities at least $15 million in fees for the plaintiffs’ attorneys alone.

Had Torrance mounted a defense, Sullivan said, the cost would have been at least $1 million, as opposed to the $70,000 cost of switching to district voting.

After a bitter and protracted battle against a CVRA suit by Shenkman, the City of Palmdale ended up with a $4.5 million court judgment against it.

Santa Monica City was on behalf of the Pico Neighborhood Association and Maria Loya, an activist who had previously run for City Council.

Shenkman has argued that the once-typical ”at large” voting system – in which candidates run citywide -- violates the law by diluting the Hispanic vote.

Breaking voters into smaller voting districts, he said, gives Hispanics an equal chance, financially and otherwise, at reaching enough voters to win election.

Santa Monica has argued in part that it has had enough Hispanic council members to fairly represent the City's growing Hispanic population.

Council Member Tony Vazquez is the best-known such representative, although the City has argued that Council Member Gleam Davis identifies herself as Hispanic.

Davis says she is adopted, and that her adoptive mother had always told Davis her father biological father was Mexican ("Santa Monica Has Two Latino Council Members, City Officials Contend," July 10, 2017).

Shenkman notes that the CVRA outlaws at-large elections that impair the ability of a “protected class” to elect candidates or influence an election.

According to Shenkman’s suit, racially polarized voting occurred in four instances over the past seventy years: when Tony Vazquez lost in 1994, Josefina Aranda in 2002, Maria Loya in 2004, and Oscar de la Torre in 2016.

The City tried to have the suit tossed last year, failed, appealed and failed before the California Supreme Court ("California Supreme Court Denies Santa Monica Request to Toss Voting Rights Lawsuit," October 23, 2017)

It tried again in March. A hearing in Superior Court is scheduled for June ("Santa Monica Asks Judge to Toss Voting Rights Lawsuit," March 30, 2018).

In its argument, the City says the at-large election system had not diluted the voting strength of Santa Monica's Latinos population.

It points to the long tenure of Vazquez, as well as local School Board Member Oscar de La Torre as successes of the at-large voting system.

But in his analysis, Torrance’s Sullivan said the CVRA, enacted in 2002, was weighed far heavier in favor of plaintiffs than the law from which it stems, the federal Voting Rights Act of 1965.

Instead of four preconditions for federal cases, the only “element” which need be established by CVRA plaintiffs is “that racially polarized voting occurs in a jurisdiction with at-large elections,” Sullivan said.

It is greatly “tilted” toward plaintiffs and was, in fact, enacted with that “specific intent in mind,” Sullivan said.

In addition, Santa Monica’s City Council is now faced with more depositions by Shenkman ("Santa Monica Voting Rights Plaintiffs Poised to Scrutinize Tainted Council Campaign Contributions," March 30, 2018).

Last month, the retired judge overseeing depositions, acting on appeal by the City, said Shenkman will be allowed another round of depositions of Council Members Davis and Terry O’Day.

He also ordered the deposition of a school board member ensnarled in a separate conflict-of-interest controversy involving her husband, Council Member Tony Vazquez.

The council members and Mayor Ted Winterer received campaign contributions later found by a state watchdog to have been disguised by the Huntley Hotel.

The Fair Political Practices Commission (FPPC) fined the Huntley but did not delve deeper into whether any of the candidates knew the contributions were tainted ("Huntley Hotel in Santa Monica Facing $310,000 Fine for Concealing Contributions," August 8, 2017).

The District Attorney’s Office has said only that it is aware of the FPPC’s findings and the City Council opted not to open its own probe ("City Review of Santa Monica Election Law Addresses General Issues," March 22, 2018).