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City Files Opening Brief in Voting Rights Appeal

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By Jorge Casuso

October 18, 2019 -- An opening appellate brief filed Friday by the City argues that upholding the trial court's decision in the voting rights case would dilute, instead of enhance, Latino voting strength.

By ordering the City to hold district elections, the lower court contradicted the purpose of the California Voting Rights Act (CVRA) and invalidated the at-large election system chosen by Santa Monica voters in 1946, the City argued.

"The trial court improperly rubber-stamped the plaintiffs’ misguided and unsupported view of the law," said Ted Boutrous of Gibson Dunn, the law firm representing the City.

The court also "ignored the history of Santa Monica’s election system and the success of minority-preferred candidates in that system, deprived the electorate of any public process for the districts drawn, and violated the federal and California Constitutions," Boutrous said.

The City's brief argues that in finding Santa Monica's election system discriminates against Latino voters, Superior Court Judge Yvette M. Palazuelos applied "legally incorrect standards in determining the existence of racially polarized voting," City officials said.

"In identifying Latino voters’ preferred candidates, the court focused on the ethnicity of candidates, rather than the preferences of Latino voters," City officials said.

"It also ignored that Latino-preferred candidates usually win."

The brief also argues that Palazuelos "misapplied the legal standard for determining whether Latino votes have been diluted" and depended on "the impermissible stereotype that Latino voters prefer only Latino-surnamed candidates."

Such a finding would "require the imposition of a race-conscious 'remedy' without improving Latino voters’ chances of electing candidates of their choice," officials said.

It also "would usurp the City’s state constitutional right of self-governance by ordering it to abandon its chosen election system without legal cause."

The City's brief distills the arguments made in a statement filed with the lower court in January opposing its ruling.

That filing totaled approximately 62,000-words, the length of such classic novels as "The Scarlet Letter," "Brave New World" and "The Martian Chronicles" ("City Submits Book-Length Response in Voting Rights Lawsuit," January 22, 2019).

Last month, the City edited down its arguments in its appellate brief to a draft totaling 24,000 words before submitting its brief Friday, which the three-judge panel limited to 17,000 words ("Appeals Court Orders City to Cut Brief in Voting Rights Case," September 30, 2019).

Kevin Shenkman, the lead attorney for the plaintiffs, said the City's opening brief "looks like the same bulls--t."

"It's like a revisionist history of Santa Monica," Shenkman said. "That's just not what came out in trial. The City is saying, 'We're a liberal City. How can we be violating voting rights.'"

The plaintiffs have 40 days to respond to the City's brief, but Shenkman said he may request an extension.

He noted that the City's brief came eight months after the City Council unanimously voted in February to appeal the lower court's ruling ("Santa Monica Council Votes to Appeal Voting Rights Ruling," February 21, 2019).

"You'd think that in eight months they could to better than this," he said.

After the City files a response to the plaintiffs' brief, each side will have 30 minutes to present oral arguments in the case.

Under an expedited schedule requested by the City, the Appeals Court will make its final ruling by July 10 ("Appeals Court Grants City's Request to Expedite Voting Rights Case," May 7, 2019).

That gives the City time to prepare for the scheduled November 2020 Council election, officials said.

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