By Derek Cole, co-founder, and Sean De Burgh, partner, of Cole Huber LLP
The California Supreme Court recently released its long-awaited opinion in the Pico Neighborhood Association v. City of Santa Monica case. The Court’s opinion reverses a 2021 Court of Appeal decision that upheld Santa Monica’s at-large voting system under the California Voting Rights Act (“CVRA,” Elec. Code § 14025 et seq.). In doing so, the Court shed some light on what has been an indisputably ambiguous area of the law for some time.
The last decade has seen public agencies face increased scrutiny applied to their voting systems. In many cases, agencies have received letters from out-of-town attorneys claiming the at-large elections for their governing boards violates the CVRA. With the threat of a lawsuit looming, public agencies have been forced to quickly consider whether their voting system potentially violates the CVRA.
Some agencies, with very little evidence to suggest that their voting systems even violate the CVRA, made the transition to by-district elections to avoid the possibility of costly litigation. This approach was made even more appealing when the Legislature enacted legislation that provided a “safe harbor” from exorbitant attorney fees for agencies that voluntary converted to by-district elections.[1] Other public agencies, like the City of Santa Monica, dug in their heels, challenging the allegation their voting system violates the CVRA.
The CVRA prohibits any political subdivision from using any at-large method of election that “impairs the ability of a protected class to elect candidates of its choice or influence the outcome of an election, as a result of the dilution or the abridgement of the rights of voters are members of the protected class….”[2]
In Pico Neighborhood Association v. City of Santa Monica, the trial court concluded that the City’s at-large method of electing city council members diluted Latino voters’ ability to elect their preferred candidates and influence the outcome of elections. The trial court ordered the City to transition to by-district elections.
The Court of Appeal reversed the trial court’s judgment, holding that there had been no dilution of Latino voters’ ability to elect their preferred candidates. On appeal, the Plaintiffs argued that a showing of racially polarized voting was sufficient and that a separate showing of dilution was not required. The Court of Appeal determined that both dilution and racially polarized voting must be proven. The Court’s analysis emphasized that Latino voters were too few and too geographically dispersed to be able to create a majority, regardless of how the potential districts were carved up. The Court of Appeal ultimately held that the minority group must constitute a majority (or near majority) in a hypothetical election district to establish a CVRA violation, which mirrors requirements under the Federal Voting Rights Act (“FVRA”).
The California Supreme Court agreed with the Court of Appeal that CVRA plaintiffs must establish both the racially polarized voting and vote dilution prongs, but rejected the requirement that the minority group must be able to create a minority-majority district. As to the voter dilution prong, the Supreme Court prescribed an alternative test that considers whether “under some lawful alternative electoral system,” the subject minority group would have “the potential, on its own or with the help of crossover voters, to elect its preferred candidate.” The court further explained that courts presented with alleged CVRA violations “should undertake a searching evaluation of the totality of the facts and circumstances,” including the agency’s circumstances, election history, and an “intensely local appraisal of the design and impact” of the challenged election system and the impact of potential alternative systems. Notably, this analysis leaves open the idea that remedies other than a by-district election system (e.g., ranked choice voting, cumulative voting, and limited voting) can be CVRA compliant.
Supreme Court Ruling in Summary
· Two-Prongs Required: CVRA plaintiffs must establish both the racially polarized voting and vote dilution prongs.
· No Minority-Majority District Required: CVRA plaintiffs need not establish the ability to create a minority-majority district.
· Vote Dilution Test: Whether “under some lawful alternative electoral system,” the subject minority group would have “the potential, on its own or with the help of crossover voters, to elect its preferred candidate.”
· Totality of the Facts and Circumstances: Courts “should undertake a searching evaluation of the totality of the facts and circumstances,” including the agency’s circumstances, election history, and an “intensely local appraisal of the design and impact” of the challenged election system and the impact of potential alternative systems.
Overall, the Supreme Court’s “totality of the facts and circumstances” test for voter dilution still leaves significant ambiguity in this area of the law. The decision undoubtedly constitutes a mild setback for public agencies, as the Supreme Court’s test constitutes a somewhat lower threshold for Plaintiffs to meet than the Court of Appeal had set forth. Moreover, confirming the need for Plaintiffs to prove voter dilution in addition to racially polarized voting means the analysis required to adequately evaluate CVRA claims will be an even more fact intensive and expensive endeavor than it has been in the past. This, in turn, may make it harder for agencies to assess their potential legal liability—i.e., how they would fare in court—because of the open-ended nature of the dilution analysis. Agencies may thus have a greater incentive to voluntarily convert to by-district elections or another CVRA-compliant election system rather than defend their at-large systems in court.
Communication is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues and attorneys should perform an independent evaluation of the issues raised in these communications.
[1] See Elec. Code, § 14026, § 10010.