Voters in Malibu who favor the current, at-large voting system may be breathing a sigh of relief—a tentative Appeals Court opinion issued June 30 favors Santa Monica in a Voting Rights Act lawsuit that would have forced it to establish voting districts and pay $22.3 million in legal fees.
The same type of lawsuit has also been threatened against Malibu by attorney Milton Grimes. That suit prompted city council’s decision last January to retain a demographer, schedule public hearings on the boundaries of five proposed voting districts and place the issue on the November 2020 ballot. The legal precedent just set by the Santa Monica case, which overturns the superior court’s order, may render that unnecessary.
The California Voting Rights Act (CVRA) of 2001 implies that at-large election schemes like Malibu’s, where all five city council representatives can come from any part of the city, lessens the chance of minorities getting elected because it dilutes the impact of their votes.
But according to the appeals court opinion, in order for Santa Monica to be guilty, its voters back in 1946 (when the city was incorporated) would have had to select at-large voting with the goal of preventing minorities getting elected.
In addition, the three-judge panel wrote that “groups don’t just vote for people from their own group,” and that “the reason for Latinos’ lack of electoral success in Santa Monica would appear to be that there are too few Latinos to muster a majority, no matter how the city might slice itself into districts or wards.” (Latino residents make up 14 percent of the voters there).
“At-large voting would not seem to be to blame,” the court wrote. “Small numbers would.”
The judges pointed out that even carving out a district that was 30 percent Latino still wouldn’t come close to giving the group a majority in that district. The judges said the plaintiffs failed to prove that Santa Monica’s at-large election system diluted the voting power of Latino residents.
Justice John Shepard Wiley noted that “while the plaintiff denounced racially polarized voting, their arguments relied on such voting if a Latino hoped to be elected in a 30 percent Latino district.”
The court is expected to issue a final decision by July 10.
According to an LA Times article, only 59 of California’s 482 cities have by-district elections—but according to the League of California Cities, no city that holds at-large elections has ever prevailed in a CVRA lawsuit. That is, until now.
Although the threat of litigation against the City of Malibu was lodged by Grimes, local attorney Kevin Shenkman (together with his wife and legal partner, Mary Hughes) has made a name for himself lodging—and winning—CVRA suits against California cities.
Palmdale lost after spending $7 million to defend itself. It was losses like this and a track record of no city ever winning that caused most cities to just give in as soon as they received a demand letter.
Other cities contacted and/or sued by Shenkman include Hemet, Wildomar, Hesperia, Upland, Costa Mesa, Oceanside, Carlsbad, Vista, Fremont, Anaheim, San Juan Capistrano, West Covina, Rancho Cucamonga, Huntington Beach, Camarillo, Carson, Fullerton, Orange, Martinez, Elk Grove, Vallejo, Chico, Santa Clarita, Hemet, Wildomar and Moorpark.
Malibu received its demand letter last Oct. 28, alleging that Malibu’s at-large voting system violated the CVRA and calling for the city to adopt district-based elections.
“Voting within the City of Malibu is racially polarized, resulting in minority vote dilution, and, therefore, the city’s at-large elections violate the California Voting Rights Act of 2001,” Grimes wrote—despite the fact Latinos only make up 8.7 percent of the population (according to recent government estimates), and despite the fact that residents of different races are scattered all over the city—not concentrated in one spot.
Because Malibu’s racial minority population is so low, even lower than Santa Monica’s, the recent tentative court ruling should be all the legal precedent that Malibu needs to avoid moving to a by-district system that has been widely panned by council members and residents, with just a few vocal supporters.