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Santa Monica's Election System Does Not Violate Latino's Voting Rights, Appeals Court Rules

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By Jorge Casuso

July 9, 2020 -- A State Appeals Court on Thursday ruled that Santa Monica's at-large election system does not violate the California Voting Rights Act (CVRA), a decision the Latino plaintiffs plan to appeal.

The ruling by the the 2nd District Court of Appeal overturns a trial court decision that found Santa Monica's system discriminates against Latinos and ordered the City to hold district elections.

In its ruling Thursday, the three judge panel wrote that it would "decline (the plaintiffs') invitation to take the unprecedented and unwise path it urges."

"In sum, the City did not act with a racially discriminatory purpose in 1946 or in 1992," the Court wrote referring to the City's decisions to reject district elections.

"The City did not violate the California Voting Rights Act or the California Constitution," Justice John Shepard Wiley Jr. wrote in the unanimous decision.

"We do not reach the remedies issue because there was no wrong to remedy," he wrote.

Attorney Kevin Shenkman -- who represents the Pico Neighborhood Association (PNA) and Latina activist Maria Loya in the suit -- told The Lookout that he plans to appeal the decision to the California Supreme Court.

"The appellate decision is disappointing, particularly because of the damage that decision will inflict upon the voting rights of millions of minorities in California, if that decision stands," Shenkman said in a statement.

"The decision is wrong in some very obvious ways," he said. "It is our responsibility to make things right, not just as attorneys, but also as Californians."

Ted Boutrous, the outside counsel representing the City, praised the court for rejecting the plaintiff's "false narrative that the City had intentionally discriminated against minority voters."

“The opinion correctly finds that Santa Monica’s at-large election system has not diluted Latino voting power and so complies with the California Voting Rights Act,” Boutrous said.

The Court's 50-page ruling reiterates the findings issued in a tentative opinion on June 30 ("Appeals Court Issues Tentative Opinion in Favor of City in Voting Rights Suit," June 30, 2020).

In both opinions, 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 in both opinions.

"There was no dilution because the result with one voting system is the same as the result with the other: no representation."

The Court said the plaintiffs failed to address the equal protection analysis presented in the tentative opinion during the subsequent oral arguments.

"At oral argument, Pico forcefully and at considerable length presented its response to our tentative opinion, but did not contest our equal protection analysis in any respect," Wiley wrote.

Shenkman said the court's decision "completely ignores the section (of the CVRA) that says you don't have to have a majority minority district."

The statute, the legislative history and two appellate court decisions have made it clear that "you don't need to have a majority minority district," Shenkman said.

Shenkman pointed to the plaintiffs' argument that Loya would have won a Council seat in the Pico neighborhood in 1992 if there had been district elections.

"The court either ignores things that are inconsistent with its decision or pretends that it doesn't even exist," Shenkman said.

"You don't have to go to hypothetical, you have reality," he said.

The City notes that the Court held there was no equal protection violation because plaintiffs “did not prove the City adopted or maintained its system for the purpose of discriminating against minorities.”

"Santa Monica’s election system, which was adopted and has been twice validated by Santa Monica voters, has repeatedly elected candidates preferred by Latino voters," City officials said in a statement.

The Court's decision in the more than four-year-old case, confirms the City's belief that Latinos benefit from an at--large system, they said.

"The facts show that moving to districts would not enhance and indeed would diminish the voting power of Latinos and other communities of color throughout the city," officials said.

Mayor Kevin McKeown said the Court "has preserved the right of every Santa Monican to vote for all seven City Council seats, not just one”

"This long-awaited decision validates that we are all part of a single community, committed to inclusiveness and city-wide participation in decisions on our shared future," McKeown said.

The plaintiffs, who have ten days to appeal the ruling after the decision become final, which typically takes about one month, disagree.

"The Appellate Court's ruling is wrong and threatens voting rights for people of color throughout the State of California," Loya said.

"Justice has not been served yet in this case."

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