Colantuono, Highsmith, Whatley, PC logoSpecial districts, cities and other public agencies now have the answer from the California Supreme Court on the California Voting Rights Act’s demand that many convert from at-large to district-based elections for Council and Board Members. On August 24, 2023 the state Supreme Court issued its opinion in Pico Neighborhood Association v. City of Santa Monica, considering: “What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?” The Court adopted a new legal standard – declaring that a plaintiff seeking to show that an at-large election system violates the CVRA must show there is an alternative voting system that would give the protected class, either on its own or with crossover voters from other groups the potential to elect their preferred candidates. The Court declared that the plaintiff need not prove the protected class can form a majority or near-majority of a hypothetical single district. The result for Santa Monica is uncertain as the Court remanded the case back down to the Court of Appeal to assess Santa Monica’s situation against the new legal standard. As the new legal standard is nebulous and not a bright-line rule more litigation is likely for other agencies on the bubble. Legislative reaction may also follow as many observers were optimistic after oral argument that the Court would adopt a bright line rule helping reduce litigation and clearly guide agencies’ next steps.

In 2002, California was the first state to adopt its own law modeled on the federal Voting Rights Act. The CVRA lowers the evidentiary burden for challenges to allegedly discriminatory voting practices such as at-large voting. Under the CVRA, a plaintiff need only show that “racially polarized” voting exists, e.g., that minority and majority voters vote differently. Unlike the federal law, plaintiffs need not show that a sufficiently numerous and geographically compact minority group exists to form a “majority minority district.” Stated differently, the federal Voting Rights Act asks whether at-large voting systems limit the ability of minority groups to elect their preferred candidates by contrast the California Voting Rights Act asks whether any alternative lawful voting system, districts or something else would give the minority group the potential to elect their preferred candidate or to influence the outcome of the election on its own or helped by crossover voters of other groups. Whether at-large voting systems dilute minority votes is the key question in the Santa Monica case.

Plaintiffs allege Santa Monica’s at-large elections dilute the votes of Latinx residents. The City argues Latinx candidates have succeeded in recent elections and plaintiffs’ victory would force one of three from the Council as two live in the Pico neighborhood (including the husband of a plaintiff ) The City also notes that its voters twice rejected measures proposing district elections.

The justices grappled at oral argument with what a plaintiff must prove to establish vote dilution. Questions focused on how to fashion a workable standard. Justices asked both parties about the difference between a minority group’s “ability to elect” versus its “ability to influence” an election. Plaintiffs argued the “ability to influence” — a majority minority district need not be possible. Santa Monica argued that sufficiently numerous minorities group can influence at-large elections. Given Plaintiffs’ hesitance to adopt a numerical threshold for what is a sufficient minority population to bring a CVRA claim, several justices expressed doubt as to whether plaintiffs’ standard would apply the CVRA more widely than the Legislature.

The City argued Plaintiffs’ standard would compel race-based classifications which can ultimately harm minority groups. The City denied that at-large elections inherently negatively affect minority voters. The City argued that while a group’s ability to influence arises from coalitions with others. Plaintiffs conceded it would be difficult to show a CVRA violation if a district cannot be created without at least 20-25% minority electorate.

The California Supreme Court’s unanimous opinion adopts a new legal standard but does not answer the ultimate question for Santa Monica nor provide a bright-line population percentage rule for other CVRA cases. The Supreme Court ruled that the Court of Appeal used the wrong legal standard, declared a new legal standard and remanded the case back down to the Court of Appeal to reconsider Santa Monica’s situation against the new legal standard.

In its opinion the Supreme Court focused on the distinctions between the federal and California Voting Rights Acts and concluded that the Court of Appeal’s opinion was wrong because it improperly imported the federal Voting Rights Act’s requirement that a hypothetical majority-minority district be possible in the jurisdiction. Instead the Supreme Court held that the California Voting Rights Act has a lower standard plaintiffs must meet – that at-large elections impair the potential of a minority group to elect their preferred candidates or to influence the election outcome, by itself or with crossover votes.

The Supreme Court declared the new CVRA legal standard as a plaintiff seeking to show that an at-large election system violates the CVRA need not prove that the protected class, e.g. a racial or language minority group, can form a majority or near-majority or any particular percentage of a hypothetical single district, and instead must show there is an alternative voting system that would give the protected class, either on its own or with crossover voters from other groups the potential to elect their preferred candidates. Evaluating this test requires a court to conduct “a searching evaluation of the totality of the circumstances” to compare the current at-large system and its results, history and context with lawful alternative voting systems and determine whether an alternative voting system would give the protected class the potential, alone or with crossover voters, to elect their preferred candidate.

Districts, cities and other local governments facing current CVRA challenges to at-large elections should consult their counsel and demographers as they assess whether it can be shown that at-large elections, as compared to districts but also other lawful voting systems such as ranked choice voting, would result in provably better potential outcomes for the minority group. So too, agencies who switched to districts before but are unhappy with the transition and would like to evaluate switching back to at-large elections or changing to another system. The new standard appears tailor made to result in more litigation, as it is not a bright line rule, but still offers hope for agencies seeking to avoid the cost and disruption in switching from at-large elections if those agencies can show that minority groups would not have demonstrably better electoral outcomes under alternative voting systems. This could be because the minority group is diffuse throughout the jurisdiction, or is relatively small or that politics faults on issues other than race or language in that community. The upshot of the Supreme Court’s opinion is that, in requiring courts to conduct “a searching evaluation of the totality of the circumstances” agencies can bring in all kinds of information to show that switching to another election system would not improve potential minority electoral outcomes beyond the standard evidence of outcomes of past elections.

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