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City Likely Faces Uphill Battle in Voting Rights Case, Experts Say

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By Jorge Casuso

Editor's note: The last three paragraphs of this article were added at 4 p.m. Wednesday to clarify the contempt of court process.

February 19, 2019 -- The City of Santa Monica likely faces an uphill battle if the Council votes on Thursday to appeal last week's Superior Court decision in the voting rights case filed by Latino plaintiffs, election experts told the Lookout.

In her final ruling last Wednesday, Superior Court Judge Yvette M. Palazuelos ordered the City to hold a district-based election by July 2 for all seven council seats.

She also prohibited council members not elected under districts from serving after August 15 ("Judge Orders Special District Elections for Council in Final Ruling," February 15, 2019).

The experts interviewed by the Lookout, including one who provided information on background, agree that the City's odds of winning on appeal are not favorable.

The City declined to comment, noting the City Council will take up the issue at a special meeting Thursday ("Council Could Decide Thursday on Appeal in Voting Rights Lawsuit," February 19, 2019).

While voting rights challenges under the 1965 Federal Voting Rights Act (FVRA) traditionally failed in California, the 2001 California Voting Rights Act (CVRA) favors plaintiffs, experts say.

"The CVRA explicitly removed key standards that plaintiffs must prove under federal law -- making it easier for private parties to challenge at-large elections," Thomas A. Rice, an attorney for Best Best & Krieger, wrote in a blog.

Fredric Woocher, a partner in the Los Angeles law firm Strumwasser & Woocher and an expert in election law, agrees.

"The trend has been so much in favor of districts," Woocher said, that the City's attorneys "have their work cut out for them."

The City's case is complicated by Judge Palazuelos' finding that in addition to violating the CVRA, Santa Monica deliberately discriminated against minority voters by refusing to implement district elections in 1946 and 1992.

An appeals court is not expected to address that issue, said Kevin Shenkman, the plaintiffs' lead attorney, who won a similar case against the City of Palmdale.

"Intentional discrimination is about weighing the evidence," Shenkman said. "Appeals courts are not supposed to weigh what inferences to draw from the evidence."

Woocher agrees the finding makes it harder for the City to fight the case.

"The fact that the court made a factual decision of intentional discrimination obviates any legal issues the City may have been using," he said.

"When you have a finding like this, the courts would have an obligation to correct that," Woocher said.

The correction mandated in Palazuelos' final ruling was to order a special election using the plaintiffs' district map.

(While the plaintiffs and the City "agreed that the most appropriate remedy would be a district—based remedy," the judge wrote, the City did not submit a map.)

The mandatory order to hold a special election would be stayed if the City appeals, the experts agree.

"If the trial court orders something, they don't have to comply with it until they've had an opportunity to appeal," Woocher said.

But in her ruling Wednesday, Palazuelos also gave the City a deadline -- candidates not elected through district-based elections "are prohibited from serving" after August 15.

As a result, the appeals court will likely try to expedite the case, the experts agree.

"It would probably be decided in short order given the timeline," Woocher said.

Still, based on the CVRA case against the City of Palmdale, it is unlikely that a ruling would be issued before the deadline, Shenkman said.

An expedited hearing would still mean "months and months" of documents being filed and responded to, he said.

In the Palmdale case, the City filed its appeal on September 30, 2013 and a ruling wasn't issued until late May, 2014, Shenkman said.

"Instead of (the) twelve to eighteen months" it usually takes to issue a ruling, he said, "you're talking about six, seven or eight months."

After a series of unsuccessful appeals, Palmdale agreed to settle the lawsuit in May 2015.

The settlement allowed the sitting council members to remain until district-based elections were held in November 2016.

The City also paid $4.5 million plus interest to lawyers for the three minority plaintiffs.

Unless an appeals court issues a ruling in favor of the City before the August 15 deadline, any actions taken by the City Council after that date would be invalid, Shenkman said.

And what if the sitting Council members convene after August 15? Shenkman was asked.

"They would be held in contempt of court and incarcerated," he said. "As soon as the Council members take the dais, they would be served with contempt papers."

Legal experts agree the City would likely ask an appellate court for clarification or request a stay on the ruling prohibiting Councilmembers to serve after August 15.

In the Palmdale case, the plaintiffs' attorneys initiated contempt proceedings that were granted by the lower courts, Shenkman said.

The appellate court stayed the contempt proceedings but not the initial judgment, he said.

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