The California Supreme Court reversed a 2021 Court of Appeal decision which upheld Santa Monica’s at-large voting system under the CVRA. On the one hand, the Supreme Court agreed with the Court of Appeal and Santa Monica that “racially polarized voting” and vote “dilution” are two separate elements in a CVRA case. The Court also provided clarification on how a plaintiff can demonstrate vote dilution. But, on the other hand, the Supreme Court disagreed with the Court of Appeal’s decision that a plaintiff must show that voting districts would give a minority group a majority (or near-majority) of a hypothetical single-member district, as plaintiffs must show under the federal Act. The case was remanded to the Court of Appeal for rehearing under this new test.
Until now, California courts have provided inconsistent guidance on whether CVRA plaintiffs must show: (1) only “racially polarized voting” in local elections; or (2) “racially polarized voting” plus “vote dilution.” Some courts collapse these elements into “racially polarized voting” while others don’t. It matters whether “racially polarized voting” and “vote dilution” are one or two elements because California voters generally vote along racial lines, so showing only racially polarized voting is relatively easy. This created uncertainty for defendant local agencies. The CVRA statute insulates defendant agencies from significant CVRA liability for defense costs and plaintiffs’ attorney’s fees, but only if they convert to by-district elections. Given this ambiguity in the law and the high stakes for defendants, many agencies have transitioned to by-district elections.
In Pico Neighborhood Association v. City of Santa Monica, the plaintiffs brought a CVRA challenge to the City’s at-large voting system - where all residents in the City’s jurisdiction vote for every member of the Council. In 2019, after a lengthy trial, the trial court ruled in favor of the plaintiffs and ordered the City to switch to a by-district voting system - where the City Council is composed of members elected from City electoral districts.
The Court of Appeal reversed the trial court’s ruling. The plaintiffs argued on appeal that they need not separately demonstrate dilution where they have already made a sufficient showing of racially polarized voting. The Court of Appeal found that dilution is a separate required element of a CVRA challenge. The Court further determined that plaintiffs had not proven dilution because they had failed to show that drawing districts would create a minority-majority district (this is the federal test). The Court found instead, that a by-district election system would only increase Latino voter influence to 30% in one hypothetical district, as opposed to the 14% for at-large elections. The Court concluded that to show dilution, the minority group must constitute a majority or near majority in a hypothetical election district and that 30% Latino influence was insufficient.
Supreme Court Reversal
While the Supreme Court agreed with the Court of Appeal that racially polarized voting and vote dilution are two distinct elements to be proven in CVRA cases, it declined to adopt the Court of Appeal’s test (i.e., the federal test) for vote dilution. Instead, the Court prescribed a new burden for plaintiffs, i.e., that vote dilution is established when, under some lawful alternative election system, the minority group would have the potential, on its own or with the help of crossover voters, to elect its preferred candidate. This can be shown through a “searching evaluation of the totality of the facts and circumstances,” including the local agency’s circumstances, election history and an “intensely local appraisal of the design and impact” of the current challenged election system and potential alternative systems.
Interestingly, the Court specifically noted that a by-district election system is not the only legitimate remedy to vote dilution under the CVRA. It found that other alternatives may exist that do not require drawing election districts, such as ranked choice voting, cumulative voting, and limited voting. Therefore, if a plaintiff can prove vote dilution, a court might still approve an alternative voting system that gives the minority group the potential to elect its preferred candidate, regardless of whether that minority constitutes a majority in any voting district. As noted above, this will be a fact-intensive local inquiry. And, even though the Supreme Court recognized these other voting systems as legitimate CVRA remedies, the CVRA only provides safe harbor protection for agencies that convert to by-district systems.
Because the Court of Appeal did not assess whether “dilution” occurred under this standard in Santa Monica, the Supreme Court remanded the decision to the Court of Appeal to apply it. We will keep you abreast of developments as they arise.
Key takeaways for the decision:
- Naturally, this is a major setback for Santa Monica as it deprives the City of an outright CVRA victory. The case is going back to the Court of Appeal, likely for further briefing and increased costs.
- The Supreme Court has confirmed that dilution is a separate and required element - something plaintiffs effectively wanted written out of the statute by the court. Now, a plaintiff must demonstrate the potential for a minority voter group to “influence the election,” but not that by-district elections would create a minority-majority district. This adds clarity for those agencies considering a fight to defend their at-large election systems.
- The Supreme Court clarified that by-district remedies are not the only remedies available under the CVRA. Alternatives like ranked choice voting, limited voting, and cumulative voting can provide public agencies with flexibility in addressing CVRA challenges. However, those other remedies don’t insulate agencies from paying CVRA plaintiffs’ attorney’s fees.
- Unfortunately, CVRA cases are likely to be even more expensive. The statistical fight over racially polarized voting was already a fact-intensive, and therefore expensive, endeavor. Demonstrating dilution adds another fact-intensive, and expensive, question to every case.