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Court Tries to Pin Down Voting Rights Standards

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By Jorge Casuso

June 27, 2023 -- During oral arguments Tuesday in the voting rights case against the City, the California Supreme Court focused on how to interpret a law that sets no numerical threshold and fails to define key words.

Filed by Latino plaintiffs seven years ago, the lawsuit seeks to change how Santa Monica voters choose Councilmembers by showing that the current at-large election system polarizes Latino voters.

By switching to districts, the plaintiffs argue, the City can meaningfully increase their "influence" and ability to elect a preferred candidate.

But how does a court determine whether there are enough Latino voters in a District to accomplish that goal?

That is the question the seven Supreme Court justices raised after an Appeals Court found that 30 percent Latino voters in a district mandated by a Superior Court judge would make little difference.

The question is difficult to answer because the 2002 California Voting Rights Act (CVRA) that enhanced the power of minority voters through district elections does not define "influence" or, like the federal law, prescribe a percentage threshold.

How do you determine if "a particular threshold is sufficient to make a meaningful difference in terms of influence," Justice Leondra R. Kruger asked the plaintiff's lead attorney Kevin Shenkman.

"If it's not a numerical threshold," she asked, "what question are the litigants and courts looking to?"

Other justices pursued the same line of questioning. "What does ability to influence mean?" Justice Kelli Evans asked Shenkman. "Does it have any independent definition?"

Justice Joshua P. Groban called the term "amorphous."

Shenkman responded that the CVRA "deals with it in an indirect, elegant way" by not prescribing a threshold or precise definition.

This, he said, allows minorities in the State's widely differing jurisdictions to argue their specific cases before a trial court.

To determine if districts are needed, the court must weigh past election results, compare the results in similar districts in other jurisdictions and consider the role money and political organizations play.

"The trial court is the one to judge the facts and the trial court here did," he said. "You get to know cases when you have a six week trial."

In Santa Monica's case, Superior Court Judge Yvette M. Palazuelos found the City's at-large election system discriminates against Latinos and ordered district elections, a ruling appealed by the City.

"It's been suggested that's just too difficult for trial courts to handle," Shenkman said. "I don't think that's the case."

During the City's oral argument, lead attorney Theodore J. Boutrous, Jr. argued that the court should not focus on "an amorphous standard that ignores the reality of Latino success" in Santa Monica Council races.

"We have a lot of political theory, we have a lot of experimentation, but that's not a compelling justification. . . for the City to junk its electoral system," Boutrous said.

The Court should look at actual results, he argued, noting ing that four of the seven current Councilmembers are Latino, including Mayor Gleam Davis whose birth father was Mexican.

The court, he said, "should not adopt a standard that inflicts harm.

"It would be the districts that would dilute" the power of Latino voters, who currently help elect three and four candidates every two years, instead of only one, Boutrous said.

The Justices, however, returned to the question of interpreting the State's voting rights law, which does not require minority voters to make up the majority in a district.

Boutrous responded that Latino voters -- who would represent 30 percent in Pico district mandated by the Superior Court judge -- do not even make up a near majority.

"It can't just be the thought, the hope, the speculation that things will get better for a particular group," Boutrous said, "especially where they are succeeding."

The court must file its written opinion within 90 days of oral arguments, which becomes final 30 days after filing, unless there is a rehearing or the court modifies its decision.

In most cases, the Court decides far in advance of the deadline, according to legal experts. This virtually guarantees the case will be decided by the end of summer.

The Supreme Court ruling, however, may not mark an end to the case, which could be remanded to the Appeals Court.

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