Pico Neighborhood Assn. v. City of Santa Monica

Filed 8/5/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PICO NEIGHBORHOOD B295935
ASSOCIATION et al., (Los Angeles County
Super. Ct. No. BC616804)
Plaintiffs and Respondents,
ORDER MODIFYING THE
v. OPINION AND DENYING
THE PETITION FOR
CITY OF SANTA MONICA, REHEARING
[NO CHANGE IN
Defendant and Appellant.
JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on July 9,
2020 is modified as follows:
On page 32, the first paragraph is deleted and replaced
with the following:
First, Pico argued the Act contains no dilution element at
all. In its 95-page brief, Pico devoted only one sentence to
this argument. An amicus brief also argued this point. At
oral argument, however, Pico “for purposes of this
argument” abandoned this argument, and for good reason.
There is no change in the judgment.
The petition for rehearing is denied.
____________________________________________________________
BIGELOW, P. J. GRIMES, J. WILEY, J.
2
Filed 7/9/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PICO NEIGHBORHOOD B295935
ASSOCIATION et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BC616804)
v.
CITY OF SANTA MONICA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Yvette M. Palazuelos, Judge. Reversed.
Lane Dilg, City Attorney, George Cardona, Special Counsel;
Gibson, Dunn & Crutcher, Theodore J. Boutrous Jr., Marcellus A.
McRae, Kahn A. Scolnick, Tiaunia N. Henry and Daniel R. Adler
for Defendant and Appellant.
Cole Huber and Derek P. Cole for League of California
Cities and California Special Districts Association as Amici
Curiae on behalf of Defendant and Appellant.
Strumwasser & Woocher, Bryce A. Gee and Caroline C.
Chiappetti for The Santa Monica Transparency Project as Amicus
Curiae on behalf of Defendant and Appellant.
Shenkman & Hughes, Kevin I. Shenkman, Mary R.
Hughes, Andrea A. Alarcon; Law Office of Robert Rubin, Robert
Rubin; Goldstein, Borgen, Dardarian & Ho, Morris J. Baller,
Laura L. Ho, Anne P. Bellows, Ginger L. Grimes; Parris Law
Firm, R. Rex Parris, Ellery S. Gordon; Law Offices of Milton C.
Grimes and Milton Grimes; Schonbrun Seplow Harris &
Hoffman, Paul Hoffman and John Washington for Plaintiffs and
Respondents.
Panish Shea & Boyle and Brian Panish for Richard
Polanco, Sergio Farias, Juan Carrillo, Richard Loa and Austin
Bishop as Amici Curiae on behalf of Plaintiffs and Respondents.
Hogan Lovells US, Ira M. Feinberg, Zach Martinez, Patrick
C. Hynds and Joseph M. Charlet for FairVote as Amicus Curiae
on behalf of Plaintiffs and Respondents.
____________________
A neighborhood organization and a resident sued the City
of Santa Monica, which uses at-large voting to elect its City
Council. The plaintiffs claimed this system discriminated against
Latinos, which is the term all parties use. After a bench trial, the
trial court agreed and ordered the City to switch to district-based
voting. We reverse and enter judgment for the City because the
City violated neither the California Voting Rights Act nor the
Constitution.
I
We describe the setting.
A
At the time of trial, about 90,000 people lived in the City of
Santa Monica, which is the defendant and appellant in this case
and which we call the City. Latinos then comprised about 16
2
percent of the City’s total population and 13.64 percent of the
City’s citizen-voting-age population.
The plaintiffs and respondents are Pico Neighborhood
Association and Maria Loya.
Pico Neighborhood Association is an organization dedicated
to improving conditions and advancing the interests of the Santa
Monica neighborhood near Pico Boulevard. Residents formed the
association in 1979 to help neighbors participate fully in the
democratic process and to ensure a safe and secure community.
Members advocate for neighborhood interests before the Santa
Monica City Council.
Maria Loya is a Pico neighborhood resident and a Pico
Neighborhood Association board member. Loya ran for the Santa
Monica City Council in 2004 and lost. Loya’s husband, Oscar de
la Torre, is a leader of the Pico Neighborhood Association. Oscar
de la Torre won Santa Monica-Malibu Unified School District
Board races in 2002, 2006, 2010, 2014, and apparently in 2018 as
well. He ran for the Santa Monica City Council in 2016 and lost.
We refer to the respondents collectively as Pico unless
otherwise specified.
B
This case concerns two alternative election methods: at-
large versus district voting. At-large voting is city-wide. District
voting is also called ward voting: “district” and “ward” are
synonyms. District voting would divide the City into the number
of districts (or wards) corresponding to the number of council
members.
The City now uses at-large voting to elect its seven-member
City Council. The City holds elections every two years. National
presidential elections are every four years. In those years, four
3
council seats are up for election: each voter can cast four votes.
In between national presidential contests are elections for
Governor. For elections held those years, voters each get three
votes for the three council seats at stake. Depending on whether
there are three or four seats open, the top three or four
candidates receiving the most votes win. Santa Monica also uses
at-large voting for its School, Rent Control, and College Board
elections, but this suit targets only City Council elections.
District voting differs from at-large voting. In district
voting, each voter casts one vote and votes to select only one
candidate to represent that district.
C
Over the years the City has debated and used both at-large
and district voting. We review this history, which has six stages.
We pay particular attention to 1946 and 1992: the years in
controversy, which are stages three and five. But first we begin
at the beginning, in 1906.
1
A 1906 charter divided the City into seven districts, called
wards. Voters in each ward voted for one council member to
represent the ward.
2
In 1914, the City switched from wards to at-large elections.
Voters in this new system elected three commissioners at large.
Each commissioner occupied a different and specialized post:
public safety, public works, and finance. The City held separate
elections for each post. Voters could cast only one vote for one
candidate in each election.
4
3
In 1946, the City changed its at-large voting into the
system it uses today. The events of 1946 are crucial in this
lawsuit and bear careful attention.
How can we tell what happened in 1946? What are the
sources of evidence? Apart from the proposed charter and
documents with voting results, the trial court considered only one
direct source of evidence about events in 1946. This direct source
was 1946 Santa Monica newspaper excerpts. In other words, no
trial witnesses testified about what they saw or heard in 1946.
The 1946 newspaper excerpts reveal the following.
In a nutshell, the City in 1946 embarked upon charter
reform. A deliberative body called the Board of Freeholders
debated and crafted a proposed new charter. Supporters and
opponents campaigned about it, and then voters overwhelmingly
approved it.
We present the events of 1946 in more detail.
Voters elected a 15-member Board of Freeholders charged
with proposing a new city charter. The Freeholders issued their
charter proposal on August 15, 1946. They proposed the City
continue at-large elections but expand the number of council
members from three to seven. They proposed eliminating the
three specialized posts in favor of seven equal city council
members, each with a general and comprehensive portfolio.
Voters would elect three or four council members, depending on
the year, and correspondingly would cast up to three or four
votes.
The new charter proposal would also create the staff office
of city manager. For this reason, news articles in 1946
5
sometimes called the Freeholders’ proposal a “council-manager”
form of government.
The record gives us limited demographic information about
the City in 1946. A table lists the total 1946 population as
67,473, with “White or Anglo” as 64,415. The other categories are
“Black,” “Asian,” and “Latino,” but there is no breakdown within
these columns until later years. Today, there is no majority
racial or ethnic group in California; statewide, every group is a
minority. (Sanchez v. City of Modesto (2006) 145 Cal. App. 4th
660, 666 (Sanchez).) The recent situation has been different in
Santa Monica; in 2010, the white or anglo population was about
70 percent of the City’s total. The situation was also different in
Santa Monica in 1946, when the white or anglo population
constituted about 95.5 percent. We refer to 1946 Santa Monicans
in the 4.5 percent group as minorities.
All minority leaders in our record supported the proposed
change in 1946. None opposed it. This fact is of dominating
significance in this lawsuit about race discrimination, and so we
elaborate.
Jean Leslie Cornett was Secretary to the Board of
Freeholders and signed an advertisement supporting the charter.
Cornett met with members of the National Association for the
Advancement of Colored People (NAACP) and explained that the
Freeholders’ charter proposal would increase the opportunity for
minority group representation by two and a half because it
expanded the City Council from three to seven members.
Freeholder Vivian Wilken was a member of the NAACP
and an organizer in the Santa Monica Interracial Progress
Committee, which worked toward “[r]espect for human dignity
through common appreciation of the worth of each individual
6
regardless of racial origin.” Wilken also signed on to an
advertisement supporting the charter.
Seven members of the Committee for Interracial Progress
endorsed the charter amendment in newspaper advertisements.
Among them was Reverend W.P. Carter, the preeminent African-
American civil rights leader in Santa Monica in the 1940s, 1950s,
and 1960s. Reverend Carter was a past president of the NAACP
in Santa Monica.
Blanche Carter, Reverend Carter’s wife and the first
African-American Santa Monica school board member, signed an
advertisement supporting the charter. So did other African-
American, Latino, and Jewish community leaders.
No member of the Committee for Interracial Progress
opposed the charter. No minority leaders, groups, or residents
opposed the charter.
By a vote of 15,132 to 6,512, voters approved the charter on
November 5, 1946.
4
In 1975, voters rejected Proposition 3, which, among other
items, proposed the City switch back to district voting.
5
The year 1992 was another focus of attention in this case.
We review 1992 events in detail.
As with 1946, the direct evidence about 1992 came strictly
from historical records. There were only two direct sources of
evidence: a written commission report and a videotaped City
Council meeting where the report was discussed.
One fact witness was present at the 1992 meeting. This
witness was former City Councilmember Antonio Vazquez.
Vazquez was on the City Council in 1992 and was one of the
7
seven council members who voted on the decision the trial court
condemned. Vazquez testified at trial by deposition. But as far
as the record shows, Pico never asked Vazquez whether the City’s
decisionmaking in 1992 was for the purpose of discriminating
against Latinos.
So the lone eyewitness did not weigh in on the crucial equal
protection issue because Pico refrained from asking him about it.
As a result, only two items of evidence directly show what
happened in 1992. These two direct sources are the report and
the videotape. First we give an overview of what they reveal.
Then we delve into detail.
The overview is the City did not change its electoral system
in 1992. A special study commission concluded the status quo
should change but could not achieve consensus on what the
change should be, and so recommended inaction and further
research. The City Council debated the matter at length and
could not agree on anything except more study. In short, 1992
was a year of dissatisfaction, study, debate, and no change.
Now we plunge into more detail. We begin with the work of
the Charter Review Commission, and then describe the City
Council meeting where the Council discussed this Commission’s
report.
a
We describe the special study commission and its work.
The City Council appointed the 15-member Charter Review
Commission to analyze a set of questions about the city charter,
including alternatives to the at-large system the City adopted in
1946.
The Commission issued its report in June 1992. The report
is more than 90 pages and it covered more than a dozen topics,
8
including term limits, selection of the city attorney, competitive
bidding, official bonds, council meeting protocols, and so forth.
The first and largest topic in the report was the pertinent
one here: the at-large election method for the City Council. The
Commission comprehensively explored five voting options: at-
large voting, district voting, mixed voting systems, and two types
of proportional representation: single transferable votes and
cumulative voting.
The Commission emphasized its dominating goal of racial
justice. “The central issue, in the Commission’s view, is not one
of having Council members who are ethnic, but of empowering
ethnic communities to choose Council members, and on this
criterion, the at-large system is felt to be inadequate.” The
Commission sought to “distribute empowerment more broadly in
Santa Monica, particularly to ethnic groups . . . .” The
Commission also wrote district voting was not “clearly the most
empowering option to insure minority influence in Santa
Monica’s political life.” It decried “the consequence of
disempowering ethnic minorities.” The Commission underlined
the virtue of bringing “Latinos much closer to placing their choice
on City Council.”
The Commission recounted its efforts to obtain enlightened
perspectives on the issues. It met with Richard Fajardo, a former
attorney with the Mexican American Legal Defense and
Educational Fund (MALDEF), as well as with members of the
NAACP and Citizens United to Reform Elections (CURE), which
was Santa Monica’s election reform advocacy group. Three
Commissioners were members of CURE.
The Commission consulted scholarship about electoral
systems. “A substantial part of this material [focused] on ethnic
9
representation questions.” A historian who later served as Pico’s
expert wrote a report to the Commission stating his view that the
City adopted its at-large system with racially discriminatory
intent in 1946.
The Commission was dissatisfied with the at-large status
quo but could not agree on what to do about it. After reviewing
the options, the Commission advised the City Council to delay
action and to gather more information.
A bare Commission majority favored some type of
proportional voting but recognized these systems were unusual,
complex, and largely untested. Apparently the City would have
to write software from scratch. As alternatives to proportional
voting, the Commission recommended that—if the City Council
decided not to propose a proportional method to the voters—both
a district system and a hybrid district/at-large system should be
“seriously considered.”
Five of the 15 Commissioners favored district voting as
their first choice.
Most Commissioners reported “that we were making our
decision with less information than we would have liked to have
had before us . . . .” The Commission “strongly” suggested further
study, “utilizing experts in this area as needed.”
b
The City Council met to consider the Commission’s report
on July 7, 1992. This public meeting began at 7:40 p.m. and
ended at 2:00 a.m. Our record contains a video of the entire
meeting.
The Council consisted of Mayor Ken Genser, Mayor Pro
Tempore Judy Abdo, and members Robert T. Holbrook, Herbert
Katz, Kelly Olsen, Antonio Vazquez, and Dennis Zane.
10
Commission chair Nancy Greenstein presented the report.
Other Charter Review Commissioners and members of the public
commented about different election systems and then responded
to the City Council’s questions, which were many and searching.
Greenstein noted the election method question was the
most difficult for the Commission. She said the majority of
Commissioners recommended the City move away from the at-
large system, but Commissioners were unsure about district
voting as a replacement system. While a majority recommended
the proportional method, this method admittedly was complex
and had drawbacks. The Commissioners did not have enough
time to study it. Only five of the 15 Commissioners favored
district voting. Ultimately, the Commission was “not giving [the
Council] a definitive yes on any system,” but was recommending
either staff or a small committee continue to study the
proportional method and to provide more information about the
proper technique for counting votes.
Commissioner Chris Harding was in the Commission’s
minority and supported districting. Harding urged the City
Council to “do a thorough investigation and gather further
information and certainly open this up for more public
discussion.” He did not “expect [Council] to make a decision
tonight about this” and encouraged the Council to consider the
lack of diversity among past mayors and council members.
George Hickey, another Commissioner, urged the Council
to call on members of the public in its deliberations, especially
those who served on the Commission.
Some speakers favored districts. They argued the City had
never elected a council member from the Pico neighborhood,
which had the highest African-American and Latino population
11
concentration. They wanted neighborhood-specific
representatives.
Other speakers opposed a district system out of a desire to
have all City Council members represent all residents.
Council members actively questioned speakers and
discussed the issues.
For instance, Councilmember Holbrook asked Commission
chair Greenstein if the Commission explored whether a hybrid
district/at-large system would provide any additional advantage
for underrepresented people to win elections.
Greenstein responded the Commissioners were not
particularly interested in the hybrid system. Some thought the
hybrid system would corrupt the district system and others
preferred the proportional system. Some also thought the hybrid
system still would dilute minority representation by making an
intentionally-formed minority district larger. Councilmember
Zane responded the hybrid system would only do so if the City
did not expand the number of districts.
Councilmember Katz was concerned a district system
would lead to “total provincialism” and believed each council
member should represent the city as a whole.
Katz asked several speakers how they felt about a hybrid
system’s ability to balance the needs of individual neighborhoods
with those of the City while intentionally forming districts to
empower minorities. Katz emphasized the City would have to
pick the districts, because having an all-white district would not
help minorities. Katz gave an example of having neighborhoods
like Pico become districts while keeping other seats at-large, and
asked whether such a system would increase minority
12
representation and still keep the Council focused on overall City
politics.
Richard Fajardo answered Katz. Fajardo was a former
MALDEF attorney who had worked on voting rights cases and
had advised the Commission. Fajardo told Katz it would depend
on whether the at-large representatives could still dilute the
power of the district representatives. Fajardo said the hybrid
system had been used as a compromise in a number of voting
rights cases.
Councilmember Holbrook expressed concerns about how
districting would work if minority communities were spread out
in their geographically small city, making it difficult to carve out
districts.
Councilmember Vazquez favored districts, but noted the
report raised a troubling prospect: a district system could pit
minorities against each other.
Councilmember Zane spoke as an advocate of affordable
housing. Zane asked Fajardo about the effect of district voting on
the prospects for affordable housing projects. Zane worried every
representative in a district voting system would take a Not-In-
My-Backyard (NIMBY) view of low-cost housing projects,
meaning every representative would oppose these projects and
thus doom them. We quote Zane’s lengthy question verbatim for
reasons that later will be apparent. We italicize the one sentence
that emerged as an issue.
“This is a question about districts that goes less to the sort
of legal representational issues, more to some kind of policy
concerns that I want to hear if you have had any experience or
reflection on. The concern I have about districts sort of somewhat
mirroring the parochial kinds of concerns that Mr. Katz alluded
13
to has to do with, issues like affordable housing and issues that
are not simply the representational issues of the poor, for
example, and historically discriminated-against minorities but
are the sort of substantive needs. One of the experiences of
people I have been acquainted with, who have made a transition
from at-large systems to district systems, is that it becomes very
difficult to get affordable housing projects passed. And the
reason is, each council member has, for one thing, become
something of a case manager of services rather than a policy
maker. Two, each council member feels more vulnerable to any
neighborhood protest, and affordable housing frequently, if not
always, brings some level of neighborhood protest. In some of the
communities I am aware of, they simply don’t get affordable
housing projects approved any more. Because every council
member is afraid of them. And so, you gain the representation
but you lose the housing. Now, do you have experience with
that?”
Fajardo agreed “that has been an issue and it has been a
problem” because “even within the Latino community” a debate
between homeowners and renters would have to continue. But
Fajardo’s concern was the inability of minority communities to
elect their preferred candidates to boards and commissions.
Zane replied “I just want us to make sure we, you know,
don’t try to solve our representational issues at the expense of
our, the needs of the poor or things like affordable housing. We
need a system we can choose both.”
Zane returned to his affordable-housing theme about 45
minutes later, in response to Doug Willis’s public comments.
Willis, who was African-American and one of the 15 members of
the Charter Revision Commission, said he belonged to CURE and
14
represented the Santa Monica-Venice chapter of the NAACP.
Willis said he lived in the Pico neighborhood and supported
district voting.
Zane responded to Willis. Zane acknowledged district
voting has some advantages, but asked Willis if he, in turn,
would acknowledge some of the disadvantages of district voting.
Zane repeated his concern about whether district voting would
end affordable housing projects by making district
representatives frightened of the neighborhood protests that
usually accompanied such proposals.
Willis replied the Pico area had the most affordable
housing in the City.
Zane said “I’m not trying to identify a particular district.”
Rather, Zane contrasted Santa Monica’s willingness to
approve affordable housing projects with communities that
“proclaim similar progressive philosophies about housing” but
cannot get affordable housing approved. Zane said the way these
other places explained it was that the district council members
are “freaked out” by every neighborhood uprising on any issue—
not just affordable housing, but also “social service centers” and
the like. “A small district makes those protesters look very
powerful.” Zane asked Willis, “how do we combat that” if we
adopt district voting?
Willis understood Zane’s point but said “I don’t tend to
agree” and said no more, thus ending their exchange.
After hours of further discussion, the council members
voted four to three not to put a district election system on the
1992 ballot. They did agree, unanimously, to gather more
information about the hybrid system and the single-member
district system.
15
The record evidence was that, thereafter, the City’s staff
did provide the City Council with further information about
hybrid voting, at-large voting, and district voting.
In this way, Santa Monica did not change from at-large
voting in 1992.
6
In 2002, voters rejected ballot measure HH, which included
a proposal to switch back to district elections.
7
Because of its history since 1946, Santa Monica now has an
at-large City Council composed of seven council members. At the
time of trial, two of these council members self-identified as
Latinos: Antonio Vazquez (later replaced by Ana Maria Jara)
and Gleam Davis. Another council member named Terry O’Day
lived in the Pico neighborhood. During trial, then, the percentage
of self-identified Latinos on the City Council was about 29
percent, which is about twice the percentage of voting-age
Latinos in Santa Monica.
D
Now we turn to this lawsuit. Its pertinent procedural
history began with Pico’s operative complaint of February 23,
2017, alleging the City’s at-large election system violated the
California Voting Rights Act and the California Constitution.
Pico alleged those who adopted and maintained the at-large
system did so intentionally to dilute Latino voting power and to
deny Latinos effective political participation in City Council
elections. Pico also alleged the at-large system prevented Latino
residents from electing candidates of their choice or influencing
election outcomes.
16
Seven expert witnesses and nine fact witnesses testified
during a bench trial beginning August 1, 2018, and ending
September 13, 2018. There were 24 days of testimony. Trial
days usually started between 9:30 and 10:30 a.m. and ended
between 3:00 and 4:00 p.m., with a 90-minute lunch break,
meaning that a “trial day” ranged between three and five hours.
The trial court handled other cases for the balance of each day.
The trial devoted more time to experts than to fact
witnesses. Pico’s main expert, a historian, testified on 10 of the
24 days, for six full days and four partial days. Another Pico
expert and two City experts each testified on three days, with one
of them testifying for three full days.
Fact witnesses testified more briefly. Only one witness was
present at the 1992 meeting and could testify about what he
witnessed. That was former Councilmember Antonio Vazquez
but, as noted above, Pico avoided asking Vazquez whether the
City Council’s 1992 vote had been for the purpose of
discriminating against Latinos. Nor did Pico seek to present
testimony from Richard Fajardo, Doug Willis, or anyone else
present when Zane spoke words that decades later Pico would
contend were racist. So no eyewitnesses testified from personal
knowledge gained in 1992 about the purpose of the City’s actions
that year.
Rather the factual testimony was about other topics.
Plaintiff Loya testified for two partial days, as did her husband
Oscar de la Torre. Each of the other fact witnesses testified for
one or two days.
On November 8, 2018, the trial court issued a tentative
order stating the court was ruling in Pico’s favor on both causes
of action. This order did not provide legal reasoning, but rather
17
set a remedies hearing and a briefing schedule. In response to
the City’s request for a statement of decision, the court ordered
Pico to prepare one.
On December 12, 2018, the court prohibited the City from
holding any at-large City Council elections and ordered future
elections to be district-based elections, according to an attached
map.
Pico asked the trial court to clarify this order because,
among other reasons, the court’s map defined only one district
rather than the seven necessary for the City’s seven-member
council to be elected through district voting. At a hearing, the
trial court stated: “I am thinking maybe it makes sense to go
with the seven districts [drawn by Pico’s expert]; order the special
elections; run with your appeal; and we will see where we end
up.”
The court ordered Pico to include seven districts in its
proposed statement of decision and proposed judgment, and
again stated, “We will let it run and see where it goes in the court
of appeal.”
On January 3, 2019, Pico filed its proposed statement of
decision and proposed judgment. The City filed objections,
including some 200 objections to the proposed statement of
decision. The court sustained eight objections and overruled the
rest. The trial court’s statement of decision and judgment thus
basically mirrored Pico’s proposals. This ruling, issued on
February 13, 2019, was Pico had proved the City violated the
California Voting Rights Act as well as the equal protection
clause of the California Constitution.
Using data provided by a historian, the trial court found “a
consistent pattern of racially-polarized voting” in the City’s at-
18
large elections. The historian analyzed seven City Council
elections between 1994 and 2016 involving at least one Spanish-
surnamed candidate, and estimated support from Latino voters
and support from non-Hispanic white voters. The historian
presented analyses showing a statistically significant difference
in how non-Hispanic white voters and Latino voters voted in six
of the seven elections. In all but one of those six elections, Latino
voters cohesively supported the Spanish-surnamed candidates.
According to the historian, “in all but one of those six elections, a
Latino candidate received the most Latino votes, often by a large
margin. And in all but one of those six elections, the Latino
candidate most favored by Latino voters lost, making the racially
polarized voting legally significant.”
The trial court rejected the City’s argument the candidate’s
race was irrelevant under the California Voting Rights Act. The
court ruled it would consider only Spanish-surnamed candidates
to be Latino candidates. Although City Councilmember Gleam
Davis testified she “considers herself Latina because her
biological father was of Hispanic descent,” the court did not count
Davis as Latina, because not enough people knew about Davis’s
ethnicity.
The trial court found several qualitative factors supported
its finding of legally significant racially polarized voting,
including the City’s history of discrimination against Latinos.
At trial, the City argued the law required Pico to show vote
dilution—not simply racially polarized voting—to prove the at-
large system violated the California Voting Rights Act. The trial
court acknowledged the City’s argument that dilution was a
separate liability element and held that, assuming dilution was a
separate element, the evidence still showed the system diluted
19
Latino votes. The court noted “it is impossible to predict with
certainty the results of future elections” but found the evidence
showed “some alternative method of election would enhance
Latino voting power.”
The trial court also found the at-large system violated the
California Constitution’s equal protection clause because the City
adopted the system with discriminatory intent in 1946, and
maintained it with discriminatory intent in 1992. For both years,
the trial court analyzed five factors from Arlington Heights v.
Metropolitan Housing Corp. (1977) 429 U.S. 252, 266–268 to
determine whether the City adopted or maintained the at-large
system with discriminatory purpose: the impact, the historical
background, the specific sequence of events leading to the
decision, departures from the normal procedural sequence, and
legislative history.
The trial court acknowledged minority leaders in 1946
favored the Freeholders’ proposal and none publicly opposed it.
The court nonetheless concluded “all understood that at-large
elections would diminish minorities’ influence on elections.” The
court found “the evidence of discriminatory intent outweighs the
contrary evidence.”
Analyzing the same factors, the trial court concluded the
City in 1992 deliberately decided “to maintain the existing at-
large election structure because of, and not merely despite, the
at-large system’s impact on Santa Monica’s minority population.”
The trial court based its finding primarily on the Charter Review
Commission’s report, the July 7, 1992 City Council meeting, and
Councilmember Zane’s statements about affordable housing at
the meeting.
20
Having basically adopted Pico’s statement of decision, the
court likewise adopted the district map drawn by a Pico expert as
the appropriate remedy. The court found it would “likely be
effective, improving Latinos’ ability to elect their preferred
candidate or influence the outcome of such an election.” The trial
court ordered the City to implement district-based elections for
its City Council in accord with the seven-district map presented
at trial.
The City appealed. It also asked the trial court to confirm
the final judgment operated as a mandatory injunction that the
appeal automatically would stay, or in the alternative to stay a
portion of the judgment pending appeal. The trial court denied
both requests.
The City petitioned the Court of Appeal for a writ of
supersedeas, requesting an immediate stay. We granted the
petition.
Based on its trial victory, Pico has asked the trial court to
order the City to pay it about $22 million in attorney fees and
costs. The trial court set a future hearing on this request.
II
This case presents two legal issues. The first is whether
the City violated a statute. The second is whether it
transgressed the California Constitution.
This section concerns the statute. The next section, section
III, tackles the constitutional issue.
To summarize our statutory analysis, the trial court
misinterpreted the statute. Properly interpreted, the statute
imposes a dilution element Pico failed to prove. The City’s
actions complied with the statute.
21
We independently review issues of statutory interpretation.
(Weatherford v. City of San Rafael (2017) 2 Cal. 5th 1241, 1247.)
The next section sketches the background for the statute,
which concerns at-large and district voting. The following
sections describe and apply the statute.
A
As context for our statutory analysis, we sketch the
background against which this statute operates.
People debate whether at-large voting or district (or
“ward”) voting is the superior form of democracy. Opinions vary.
Some of the briefing in this case speaks to this point.
Amicus League of California Cities is an association of 478 cities
in California. Joining it in this brief is the California Special
Districts Association, which consists of over 900 special districts
throughout California. The special districts provide Californians
with services relating to police, fire, roads, harbors, waste,
sewage, mosquitoes, libraries, parks, and similar matters.
This amicus brief presents the perspectives of these 1,000
plus California jurisdictions. This brief is not a source of facts
from which a court could make factual findings. Lawyers wrote
this brief, and like any brief, it is merely legal advocacy on behalf
of those with an interest in the outcome of this case.
The amicus cities and special districts all hold elections.
These entities take different views about at-large voting versus
district voting. They recognize at-large voting can dilute
minority voting power in certain circumstances, and that, when
this occurs, it is bad. They argue, nonetheless, that legitimate
debate remains over the merits of the two methods.
The amicus brief claims some member district and city
officials support at-large elections. The main idea is at-large
22
voting elects representatives devoted to the welfare of the whole.
Supporters say the district alternative leads to ward politics.
“Ward politics” is a term with a possibly pejorative
connotation. (See, e.g., Plunkitt, Plunkitt of Tammany Hall
(Project Gutenberg 2013) ch. 6 & 23 [talks given by George
Washington Plunkitt around 1905].)
Some abuses of ward politics are a matter of record here.
Santa Monica’s Charter Revision Commission noted ward
elections—also called district elections—were the rule in U.S.
cities at the end of the 19th century. Widespread graft and
corruption in city politics then led to reforming upheaval in
municipal governance and swept away ward and district
elections.
The record in this case also shows that, by 1989, at-large
elections had become the norm in California. Among California
cities, for instance, 205 cities then used at-large voting while only
15 cities preferred district voting. In 2014, most local governance
bodies in California were elected on an at-large basis. (Jauregui
v. City of Palmdale (2014) 226 Cal. App. 4th 781, 788 (Jauregui).)
Another aspect of district voting is its requirement of
drawing district lines, which in turn poses the issue of
gerrymandering. (See Reynolds v. Sims (1964) 377 U.S. 533,
578–579.)
Yet, according to amici League and the special districts,
today some among their members take a contrary view and favor
district voting as the more democratic approach.
Officials who favor district voting say they believe their
connections to distinct communities allow them to represent
those communities better by responding more attentively to local
and particular interests.
23
We also note that, for many decades, esteemed civil rights
leaders have observed shifts from ward to at-large elections can
deprive minority voters of fair and effective procedures for
electing candidates of their choice. (E.g., Days & Guinier,
Enforcement of Section 5 of the Voting Rights Act in Minority
Vote Dilution (Davidson edit., 1984) p. 169.)
Amici League and special districts assert their
organizations do not favor one system or the other. Rather they
hold there are legitimate arguments for each system. Reasonable
people can differ on the choice between district and at-large
voting.
B
The Legislature weighed in on the debate about district
voting by passing the California Voting Rights Act, which took
effect in 2003. The Act consists of eight sections of the Elections
Code: sections 14025 to 14032. Henceforth we refer to this
statute as the Act. All further statutory references are to the
Elections Code unless otherwise indicated.
The Act created a private right of action against political
subdivisions of the state of California.
This case requires us to construe the Act. We begin with
its language and structure in our quest to ascertain its purpose.
Our central goal is to effectuate that purpose. We must interpret
the statute’s words in context, keeping in mind the statutory
purpose. We start by considering the ordinary meaning of the
statutory language, the language of related provisions, and the
structure of the statutory scheme. If the language of a statutory
provision remains unclear after this analysis, we may explore
extrinsic sources like legislative history. (Scholes v. Lambirth
Trucking Co. (2020) 8 Cal. 5th 1094, 1102–1103 (Scholes).) We
24
construe the statutory words in context so we can harmonize
individual sections by considering the provision at issue in the
context of the statutory framework as a whole. (Kim v. Reins
Internat. Cal., Inc. (2020) 9 Cal. 5th 73, 83.)
The Act requires plaintiffs to satisfy five elements to make
out a claim:
1. Protected class;
2. Resident;
3. At-large voting;
4. Racially polarized voting; and
5. Dilution.
Protected class. Element one requires plaintiffs to prove
membership in a protected class. (§§ 14032 [stating this
element], 14026, subd. (d) [defining protected class].) A protected
class is a class of voters who are members of a race, color, or
language minority group, as defined in the federal Voting Rights
Act (52 U.S.C. § 10301 et seq.). (§ 14026, subd. (d).)
Resident. Element two requires plaintiffs to prove they
reside in the political subdivision they are suing. (§§ 14032
[stating this element], 14026, subd. (c) [defining political
subdivision].) A political subdivision is a geographic area of
representation created for the provision of government services,
and includes general law cities and charter cities. (§ 14026, subd.
(c).)
At-large voting. Element three requires plaintiffs to prove
the political subdivision used an at-large method of electing
members to the governing body of the political subdivision. (§§
14027 [stating this element], 14026, subd. (a) [defining at-large
method of election].) At-large voting includes any of the following
election methods: (1) one in which voters of the entire
25
jurisdiction elect members to the governing body; (2) one in which
candidates must reside in given areas of the jurisdiction and
voters of the entire jurisdiction elect members to the governing
body; and (3) one that combines at-large elections with district-
based elections. (§ 14026, subd. (a).)
Racially polarized voting. Element four requires plaintiffs
to prove racially polarized voting occurred in the political
subdivision’s elections. (§§ 14028 [stating this element], 14026,
subd. (e) [defining racially polarized voting].) Racially polarized
voting is voting in which a protected class’s electoral preferences
are different from those of the rest of the electorate in a legally
significant way. (§ 14026, subd. (e).)
Dilution. Element five requires plaintiffs to prove the
political subdivision’s at-large election method impaired “the
ability of a protected class to elect candidates of its choice or its
ability to influence the outcome of an election, as a result of the
dilution or the abridgment of the rights of voters” who belong to a
protected class. (§ 14027, italics added.)
Section 14030 is a one-way attorney fee provision: the
prevailing plaintiff party is entitled to fees and costs, so long as
the plaintiff is not the state or a political subdivision. There is no
fee provision for prevailing defendants. Prevailing defendants do
not recover costs unless the action was frivolous or the like. (See
generally Rey v. Madera Unified School Dist. (2012) 203
Cal. App. 4th 1223, 1235–1245.)
The Act defines only five of its statutory terms. (§ 14026,
subds. (a)–(e).) The Legislature left a number of statutory terms
undefined, as we explain below.
26
The City does not appear to contest that Pico has satisfied
elements one, two, or three, but it does take issue with the trial
court’s finding of racially polarized voting and dilution.
C
This case turns on element five, which is the dilution
element. We thus do not consider element four.
As we have just recounted, the dilution element required
Pico to prove the City’s at-large method impaired Latinos’ ability
to elect candidates of their choice or to influence the outcome of
an election as a result of the dilution or the abridgment of Latino
voting rights. (§ 14027.)
We focus on the word dilution, as does Pico. In defending
its trial court victory, Pico in its brief to us uses a form of the
word dilution more than 40 times. It uses a form of the word
abridgement only once, and then only in passing. We focus on
the issue Pico has posed.
The Legislature decided not to define the word “dilution.”
We must decipher what the Legislature meant this word to mean.
We approach this interpretative work with the standard tools of
statutory construction. We start by considering the ordinary
meaning of the statutory language. (Scholes, supra, 8 Cal.5th at
p. 1103.)
Dilution is a familiar word with a plain meaning. Dilution
is the act of making something weaker by mixing in something
else. (The Random House Dict. of the English Language (2d ed.
unabridged 1987) p. 554 [“to reduce the strength, force, or
efficiency of by admixture”].)
Pouring a quart of water into a quart of milk, for instance,
dilutes the milk to half strength. Diluting the milk weakens its
nutritional value.
27
This familiar concept applies to electoral results.
Many techniques can manipulate a voting system to dilute
the ability of particular groups to achieve electoral success. Both
district voting and at-large voting can be mechanisms of mischief.
In a district voting system, for instance, one can draw
district lines to divide a group’s supporters among multiple
districts so they fall short of a majority in each district.
That is “cracking.” (Gill v. Whitford (2018) ___ U.S. ___,
___ [138 S. Ct. 1916, 1923–1924] (Gill); cf. Garza v. County of Los
Angeles (9th Cir. 1990) 918 F.2d 763, 769 [county intentionally
fragmented Latino population to dilute that vote].)
Or one can draw district lines to concentrate a group into a
few districts so the group wins there by overwhelming margins
but achieves less overall success than if different line-drawing
spread the group more evenly through a larger number of
districts.
That is “packing.” (Gill, supra, 138 S.Ct. at pp. 1923–1924;
cf. Georgia v. Ashcroft (2003) 539 U.S. 461, 470, 481, 486–488
[explaining packing and unpacking].)
At-large elections are another possible method for diluting
voting power and curbing electoral success, under particular
conditions. At-large voting is not a per se violation of minority
voting rights. (Thornburg v. Gingles (1986) 478 U.S. 30, 48.)
This common system can serve legitimate ends. But under
certain circumstances it is possible to weaken a group’s electoral
success by using at-large voting instead of district voting.
A hypothetical example illustrates the point.
In this hypothetical we speak generally of groups, because
the groups in electoral cases often are political parties rather
than expressly racial or ethnic groups. This statute is drafted
28
specifically in terms of racial, color, and language groups, but the
mechanisms of voting dilution extend beyond these categories.
For our hypothetical, assume everyone votes strictly
according to group membership and, if possible, only for
candidates who are members of their own group. Further
assume one group has voting power of only 10 percent in a given
city but, within that city, the group’s voting power in
neighborhood X is 60 percent. If neighborhood X were a voting
district, the group could elect one of its own members as a district
representative. The 60 percent neighborhood voting power would
guarantee success. But now switch to at-large voting. This
switch defeats the group’s ability to elect anyone from its own
ranks, because 10 percent is not enough to win. Changing from
district to at-large voting under these circumstances would
weaken that group’s electoral success: the change would deny it
the ability it previously had to elect a member of its own group.
This hypothetical example shows, with district voting, the
group could elect one representative belonging to its group. But
with at-large voting, the group could not elect anyone from its
own group. Going from one representative to zero would dilute
this group’s ability to elect candidates from its group. Under
these circumstances, an at-large system has diluted the group’s
voting power in a politically damaging way: the group lost the
power to elect a representative of its choice.
The possibility of dilution does not mean it is generally a
negative outcome when voters in a minority lose an election.
Generally, democracy is majority rule. Under ideal conditions in
a democracy, the majority of voters tends to win and the minority
of voters tends to lose. When candidates or causes lose elections
29
simply because too few voters support them, that is not
democracy failing. That is democracy working.
The dilution element thus must do the work of
distinguishing between the general case, when majority rule is
proper, and the special case, when some mechanism has
improperly diluted minority voting power.
D
The City correctly notes Pico offered no valid proof of
dilution.
As we have observed, the dilution element required Pico to
prove the City’s at-large method impaired Latinos’ ability to elect
candidates of their choice or to influence the outcome of an
election as a result of the dilution of Latino voting rights. (§
14027.)
One cannot speak of the dilution of the value of a vote until
one first defines a standard as to what a vote should be worth.
Justice Frankfurter made this point in his long and bitter dissent
from the landmark decision in Baker v. Carr (1962) 369 U.S. 186,
300 (dis. opn. of Frankfurter, J.). Frankfurter thought his point
was a reason to reject that decision, but the case law in its wake
accepted his wisdom and built it into a standard litigation
practice. (E.g., Reno v. Bossier Parish School Bd. (1997) 520 U.S.
471, 480 [plaintiffs must postulate an alternative voting practice
to serve as the benchmark undiluted voting practice, because the
concept of vote dilution necessitates the existence of an undiluted
practice against which the fact of dilution may be measured].)
Pico agreed it was its burden to postulate a reasonable
alternative voting practice to serve as the undiluted benchmark.
Pico proposed a district system that, for one district within the
City, would have 30 percent Latino voting power, as compared to
30
the 14 percent city-wide voting power Latinos hold in at-large
elections.
Pico’s showing was insufficient. Pico failed to prove the
City’s at-large system diluted the votes of Latinos. Assuming
race-based voting, 30 percent is not enough to win a majority and
to elect someone to the City Council, even in a district system.
There was no dilution because the result with one voting system
is the same as the result with the other: no representation.
Pico thus failed to show the at-large system was the reason
Latinos allegedly have had trouble getting elected to the City
Council. The reason for the asserted 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. At-large voting is not to blame. Small
numbers are.
Perhaps the same holds true for other minorities in Santa
Monica. Pico’s briefing, however, gives us little data about other
groups and their electoral histories in Santa Monica.
In passing, the trial court mentioned “cumulative voting,
limited voting and ranked choice voting” as systems that, as
alternatives to district voting, would also “enhance” Latino voting
power. The court’s treatment of these alternatives was
perfunctory. The court did not define cumulative voting, limited
voting, or ranked choice voting. Nor did it attempt to analyze
how each might satisfy the dilution element. This fleeting
reference, which Pico authored, is insubstantial and cannot
support the judgment.
E
Pico responds with two arguments.
31
1
First, Pico argued the Act contains no dilution element at
all. In its 95-page brief, Pico devoted only one sentence to this
argument. An amicus brief also argued this point. At oral
argument, however, Pico expressly and conclusively abandoned
this argument, and for good reason.
To grasp this argument, recall element four requires
plaintiffs to prove racially polarized voting occurred in elections
held by the political subdivision. (§§ 14028 [stating this element],
14026, subd. (e) [defining racially polarized voting].)
Pico claimed a showing of racially polarized voting under
section 14028 completely satisfies and thus supplants the
dilution element in section 14027. Pico quoted the first sentence
of subdivision (a) of section 14028: “A violation of Section 14027
is established if it is shown that racially polarized voting occurs
in elections for members of the governing body of the political
subdivision or in elections incorporating other electoral choices by
the voters of the political subdivision.”
Pico thus contended the word “dilution” in section 14027
has no content independent of subdivision (a) of section 14028.
Pico’s analysis contravened principles of statutory
interpretation, in two independently fatal ways. Standard
principles of statutory interpretation direct us to the ordinary
meaning of the statutory words, the related provisions, and the
structure of the statutory scheme. (Scholes, supra, 8 Cal.5th at p.
1103.)
Two standard factors—statutory text and the rule against
surplusage—upend Pico’s argument and have forced Pico to
abandon it. We now detail the application in this case of these
two aspects of statutory interpretation.
32
a
The statutory text is paramount and is contrary to Pico’s
argument. Three sections require plaintiffs to satisfy both the
dilution element of section 14027 and section 14028’s
requirement of racially polarized voting. The three sections
containing this decisive language are sections 14032, 14029, and
14030.
Section 14032 of the Act grants a private right of action to
any voter in a protected class who resides in a political
subdivision where a violation of sections 14027 and 14028 is
alleged.
Section 14029 also is compelling, as plaintiffs gain
remedies only by establishing a violation of both 14027 and
14028.
Section 14030 follows the same pattern for attorney fees
and costs.
In sum, the legislature required litigants to prove both
dilution and racially polarized voting to establish a claim, to have
a remedy, and to recover fees.
These statutory passages require sections 14027 and 14028
to have independent content. Pico’s argument ran aground on
this requirement.
b
A second and independently fatal problem with Pico’s
argument was the rule against surplusage. If the Legislature
had intended the result Pico urges, it would not have included
the word “dilution” in the Act. But it did, and that too defeated
Pico’s argument.
Pico argued the statutory word “dilution” was mere
surplusage. But surplusage in legislation is unusual and
33
disfavored. The venerable assumption is drafters avoid
surplusage and therefore so should judges who interpret the
drafting. (E.g., People v. Leiva (2013) 56 Cal. 4th 498, 506 [avoid
a construction that makes some words surplusage]; Market Co. v.
Hoffman (1879) 101 U.S. 112, 115–116 [this rule was old in
1879].)
The word “dilution,” moreover, is not just any old word.
The word “dilution” has been a core part of the voting rights
vocabulary at least since the 1964 decision in Reynolds v. Sims,
supra, 377 U.S. at pages 555 and footnote 29, 557, 563, 567, 568.
Dissenting Justice Harlan wrote the entire decision in that
landmark voting rights case boiled down to the concept of
dilution. (See id. at p. 590 (dis. opn. of Harlan, J.).)
It would have been incongruous for the Legislature to make
a key word nugatory. Pico cited no precedent for this illogical
form of statutory interpretation.
Pico’s proposed interpretation of the Act thus was incorrect.
(Cf. Sanchez, supra, 145 Cal.App.4th at p. 666 [Act was designed
to combat a kind of vote dilution].)
In sum, it is incorrect to read the Act to say a mere showing
of racially polarized voting necessitates a finding a city has
misapplied at-large voting. Under the Act, racially polarized
voting is a necessary but not sufficient element. Dilution also is
an independent and necessary element. As we have explained,
Pico did not prove dilution.
2
Pico’s second response is its “influence” argument. Pico
argues the change from 14 percent to 30 percent is legally
significant because it increases the electoral “influence” of
34
Latinos. The Legislature added the word “influence” to section
14027 of the Act but did not define it.
Pico proposes a definition of this word that would give a
winning cause of action to any group, no matter how small, that
can draw a district map that would improve its voting power by
any amount, no matter how miniscule. The trial court followed
this approach by asking whether “some alternative method of
election would enhance Latino voting power.” According to this
standard, any unrealized increase in a group’s percentage would
satisfy the dilution element.
This standard is untenable because it would create absurd
results.
A hypothetical illustrates this fatal problem.
Assume three facts: there are 3,000,000 voters in a city;
3,000 belong to a small racial group G; and all voters are racially
polarized in the sense voters will vote only for candidates of their
own race.
In an at-large election, group G would constitute 0.1
percent of the electorate. Suppose we now switch from at-large
voting to voting in 15 districts, each with 200,000 voters, and we
draw the lines to maximize the voting power of group G. Now
one district incorporates all 3,000 voters of group G. Thus group
G would increase its voting power from 0.1 percent strength at
large to 1.5 percent in that district. A change from 0.1 to 1.5
percent is a 15-fold increase, which seems sizeable in relative
terms. This change would improve G’s “influence” as Pico would
define the term. But a group with a vanishingly small numerical
presence—be it .01 percent or 1.5 percent—can have no practical
numerical influence in any voting system. There are simply too
35
few voters in group G to be numerically effective in an
environment of race-based voting.
To define “influence” as Pico proposes would merely ensure
plaintiffs always win.
Pico cites the case of Georgia v. Ashcroft, supra, 539 U.S. at
pages 470–471, 482–483. Georgia v. Ashcroft is inapposite in
many ways. It interpreted section 5 of the federal Voting Rights
Act, not section 2. These sections combat different evils and,
accordingly, impose different duties. (Id. at pp. 477–478.)
Section 5 deals with “retrogression,” id. at p. 477, which is not a
subject of the California Voting Rights Act. And Georgia v.
Ashcroft merely held a trial court failed to consider all relevant
factors when examining whether a redistricting plan would
diminish minority voters’ effective exercise of the electoral
franchise. (Id. at p. 485.) It did not hold groups will influence
elections at the 30 percent level but not at the 14 percent level.
The holding in Georgia v. Ashcroft does not assist Pico. (See
Bartlett v. Strickland (2009) 556 U.S. 1, 19–20 (plur. opn. of
Kennedy, J.) [a party asserting § 2 liability must show the
minority population in the potential election district is greater
than 50 percent].)
Pico seeks to rescue its influence argument by suggesting
non-Latinos might “cross over” and vote for Latino candidates,
buoying Latino power and clearing the 50 percent threshold to
electoral success. This suggestion arbitrarily embraces racially
polarized voting when it helps and abandons it when it hurts. It
creates a manipulable standard boiling down to plaintiff always
wins.
The City agrees some “influence” claims in theory could be
valid if evidence showed a near-majority of minority voters in a
36
hypothetical district would often be sufficient for the minority
group to elect its preferred candidates. But the City correctly
notes we need not decide that question today, for this case
presents no such district.
At oral argument, Pico said plaintiff Maria Loya would
have won using the seven-district map the trial court adopted.
The trial court, however, made no such finding. Nor did Pico’s
briefing to us argue this point, which Pico thereby forfeited.
Parties cannot fairly raise a new theory for the first time in oral
argument, for that tactic deprives the other side of notice and an
opportunity to be heard. It likewise deprives the court of a
thoughtful adversarial discussion of the issue. (E.g., Jones v.
Jacobson (2011) 195 Cal. App. 4th 1, 5, fn. 12, 19 [parties forfeit
issues and arguments raised for the first time at oral argument].)
Dilution requires a showing, not of a merely marginal
percentage increase in a proposed district, but evidence the
change is likely to make a difference in what counts in a
democracy: electoral results.
In sum, Pico failed to prove dilution. The City did not
violate the statute. In light of this conclusion, we do not reach
the issues of whether there was racially polarized voting or
whether the trial court’s interpretation of the Act would make the
Act unconstitutional as applied to this case.
We turn to the constitutional question.
III
The constitutional question concerns equal protection. The
trial court found the City’s voting system violated equal
protection because, in 1946 and again in 1992, the City acted
with the purpose of suppressing Latino political power. The
court, however, applied an erroneous legal standard to reach
37
these faulty conclusions. A proper analysis shows Pico did not
prove the City adopted or maintained its system for the purpose
of discriminating against minorities.
A
Federal and state equal protection standards are not
always the same, but they are for this analysis. (See Jauregui,
supra, 226 Cal.App.4th at p. 800 [California decisions involving
voting issues closely follow federal constitutional analyses].) The
trial court took this approach and no party disputes it.
The City correctly argues the trial court applied the wrong
legal rule. We independently review this question of law. (Air
Couriers Internat. v. Employment Development Dept. (2007) 150
Cal. App. 4th 923, 932.) This analysis does not require us to
resolve disputed facts.
In this case there were no eyewitnesses who testified in a
pertinent way to the crucial events. Rather, direct evidence
about the key events came from three types of historical artifacts:
(1) 1946 newspaper excerpts, voting records, and the proposed
charter; (2) the 1992 Charter Review Commission report, and (3)
the July 7, 1992 City Council meeting video. These historical
artifacts are the core of record for the equal protection analysis.
They were not created for purposes of litigation.
We independently review trial court findings based on
historical artifacts like videotapes. (See Scott v. Harris (2007)
550 U.S. 372, 379–380 (Scott) [appellate judges interpret “what
we see on the video” for themselves; the appellate court gives no
deference to the trial court’s findings]; id. at p. 384 [as a matter of
law, appellate judges conclude video shows car driver posed a
threat to pedestrians; no deference]; In re Rosenkrantz (2002) 29
Cal. 4th 616, 677 [“Because the trial court’s findings were based
38
solely upon documentary evidence, we independently review the
record.”].)
Historical artifacts differ from the live witness testimony in
a case Pico cites: Nestle v. City of Santa Monica (1972) 6 Cal. 3d
920, 924–928. We are in the same position as the trial court was
to evaluate materials like the 1946 newspaper clippings, the 1992
commission report, and the 1992 video. We do not defer to a trial
court’s reaction to historical artifacts like these, any more than
we would defer to a trial court’s “findings” that A Room of One’s
Own concerns Napoleon in Russia or that Citizen Kane shows
Druids built Stonehenge. News articles, videos, and other texts
that were not created for litigation are different from witnesses in
a courtroom testifying and being cross-examined under oath, and
are not fit topics for trial court factfinding to which appellate
courts will defer.
Deference to factual findings stems from the fact finder’s
observation of the demeanor of live witnesses and their manner
of testifying. (In re Avena (1996) 12 Cal. 4th 694, 710.) That
deference is inappropriate when evidence does not involve the
credibility of live testimony. (In re Resendiz (2001) 25 Cal. 4th
230, 249; see also People v. Ogunmowo (2018) 23 Cal. App. 5th 67,
79 [no deference is given to trial court’s conclusion about written
documents, because trial and appellate courts were in the same
position in interpreting that evidence].)
Experts in this case testified about these written and video
artifacts, but that does not change our analysis. Appellate courts
are not required to defer to expert opinion regarding the ultimate
issue in a case. (Vergara v. State of California (2016) 246
Cal. App. 4th 619, 650.) “Expert” opinion about how a court
should interpret, for instance, this 1992 video is simply highly
39
partisan advocacy in the guise of evidence; this type of “expert
testimony” boils down to argument, not evidence. Courts have
been familiar with this problem for some time. (Cf. Winans v.
N.Y. & Erie Railroad Co. (1858) 62 U.S. (21 How.) 88, 101 [courts
cannot receive professors to prove to the court the proper or legal
construction of instruments of writing; experience shows that
opposite opinions of persons professing to be experts may be
obtained in any amount].)
B
The central purpose of equal protection is to prevent
officials from discriminating on the basis of race. (Washington v.
Davis (1976) 426 U.S. 229, 239.) An inquiry into the purpose of
the challenged conduct is essential. A showing of a racially
disproportionate impact alone is insufficient. (Rogers v. Lodge
(1982) 458 U.S. 613, 617–618.) To prevail on its equal protection
violation claim, Pico had to prove the City adopted or maintained
its at-large system with the purpose of discriminating against
minorities. (Washington v. Davis, supra, at pp. 239–244.) The
parties agree on this.
Discriminatory purpose requires more than knowledge of
consequences. (Personnel Administrator of Mass. v. Feeney (1979)
442 U.S. 256, 279 (Feeney).) It implies the decision maker
selected or reaffirmed a particular course of action not in spite of
adverse impact on a group, but because of that impact. (Ibid.)
The facts of Feeney illustrate the difference between the
mental states of purpose and knowledge: between acting with
the goal of achieving an end, which is purpose, and merely acting
with awareness a side effect will result, which is knowledge.
In Feeney, a Massachusetts statute gave veterans
preference over others for state jobs. The goal was not to harm
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women, but that was the effect, because only two percent of
veterans then were women. The statute created winners and
losers, and, overwhelmingly, women lost. Legislators knew that
would happen. They knew nearly all veterans at that time were
men. But the law did not deny women equal protection, even
though its authors knew it would disproportionately harm
women, because harming women was not their purpose. (Feeney,
supra, 442 U.S. at pp. 270, 274–281.)
This equal protection principle holds true as a general
matter. (Rogers v. Lodge, supra, 458 U.S. at pp. 617–618.)
Legislators’ awareness of a racially disparate impact is not
enough to prove their intent to discriminate by race. (City of
Mobile v. Bolden (1980) 446 U.S. 55, 66–67, 71 & fn. 17,
superseded by statute on other grounds.)
This careful distinction between purpose and knowledge is
familiar in the law. The Model Penal Code precisely defined
purpose and knowledge. (See Model Pen. Code, § 2.02, subd.
(2)(a) & (b).) Its definitions perfectly fit the distinction Feeney
drew.
People act purposely to achieve gender or race
discrimination when it is their conscious object to engage in
conduct of that nature or to cause such a result. People act
knowingly when they are aware it is practically certain their
conduct will cause a disparate impact along gender or racial
lines. (See Model Pen. Code, § 2.02, subd. (2)(a) & (b).)
The logic of this constitutional distinction is apparent.
Redistricting legislatures presumably are aware of racial
demographics, just as we presume they are aware of age,
economic status, and other demographic factors. But this
awareness, this knowledge, does not prove a purpose of race
41
discrimination. (Shaw v. Reno (1993) 509 U.S. 630, 646.)
Plaintiffs must show the government adopted or maintained the
election system for the purpose of racial discrimination. A
knowledge of a disparate impact is not enough. (City of Mobile v.
Bolden, supra, 446 U.S. 55 at pp. 66–67, 71 & fn. 17.)
The trial court departed from these equal protection
standards. Its departure invalidates its conclusions. The trial
court erroneously concluded the City acted with discriminatory
intent in 1946, when the City adopted its at-large system, and in
1992, when the City left this at-large system unchanged. But
there was no evidence the City had the purpose of engaging in
racial discrimination on either occasion. For this reason, the
City’s actions did not violate equal protection.
We examine events in 1946 and then 1992.
1
In 1946, 100 percent of the leaders of the minority
community who expressed a public opinion supported the City’s
action. None opposed it. The people who knew best and cared
most detected no City purpose of race discrimination against
them. As a matter of law, this unanimous evidence is a litmus
test dictating a finding in the City’s favor. The City in 1946 did
not act with a purpose of race discrimination.
Contemporaneous and unanimous support from minority
community leaders shows the 1946 charter was not a hostile
effort to oppress minorities. No one has a more sensitive eye or a
stronger vested interest than leaders of minority communities. If
they speak publicly with one supporting voice, as they did about
the election in 1946, minority leaders are bellwethers for voters
who care most keenly about the quality of life for minorities.
42
Pico’s claim is unprecedented. It asks us to rule a city and
its electorate engaged in hostile discrimination against minorities
when that city and its electorate did what minority leaders asked.
Pico cites no case with that illogical holding.
Pico does not explain how it, today, has greater insight into
the racial realities of 1946 than the unified leaders of the
minority communities who, in 1946, lived in Santa Monica. Pico
does not argue all these leaders were somehow tricked, out of
touch, muzzled, or corrupted. Pico simply suggests their views do
not matter. This is error.
Pico incorrectly contends “both proponents and opponents
of at-large elections understood such elections would prevent
minority representation.” To the contrary, the evidence shows
there was uniform minority support for the City’s 1946 charter
change. The only newspaper critiques of the proposed charter
were advertisements run by an anonymous group calling itself
the Anti-Charter Committee.
The work of the anonymous Anti-Charter Committee does
not show a general understanding the Charter would harm
minority groups. It is not evidence minority communities were
divided in their support of the 1946 charter.
In 1946, the identity of Anti-Charter Committee members
became a notorious issue in the City. In its ads attacking the
charter, the Anti-Charter Committee identified itself only as “a
group of business men [sic] and other private citizens.” A
newspaper editorial, however, questioned who belonged to, and
who contributed to, this “well-heeled group.” This editorial
contrasted the open and published “names of nearly 200
prominent Santa Monica citizens who have endorsed the new city
charter” with the secrecy surrounding the identity of the Anti-
43
Charter Committee’s membership and its source of funding. The
editorial asked if the Anti-Charter Committee’s contributors
included people “who sell certain supplies to the city government
under contracts very favorable to them, and who are unwilling to
have their names appear?” “The people of Santa Monica are
entitled to know who they are.”
The Anti-Charter Committee never responded to this
editorial, so far as the record shows.
The Anti-Charter Committee’s ads provide insight into its
perspective. One ad, titled “Who’s Going to Manage the City
Manager?”, states that, “[l]ike Communism, the [charter’s] theory
of a city-manager-operated city is wonderful. Practically it does
not work out. Dictatorship never does.”
A different Anti-Charter Committee ad stressed systems
like the one in the proposed charter “have higher tax rates and
higher indebtedness” than the City’s existing system. “Don’t
write a blank check and give it to a cause that has proved itself a
spendthrift!”
Another Anti-Charter Committee ad stated “[t]he first
claim of minority groups is that they are making a change in the
interest of ‘true democracy’—this is much the same manner as
the communists work from within.”
This same ad continued: “Do you want increased taxes,
rule of the city by a few? If you don’t, then—VOTE NO . . . .”
Another ad, titled “DO YOU WANT THIS DISASTER IN
SANTA MONICA?”, reprinted letters to the editor from a paper
in Montebello, which the ad said had a government like the
proposed Freeholders’ charter. The letters expressed anger at the
high taxes and expenditures in Montebello. After these letters,
the ad concluded:
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“What more could be said to prove our point that this
proposed Charter will plunge Santa Monica into bitter political
strife and chaos; it will mean unbearable taxation, will establish
dictatorial rule that will starve out minority groups and will
throw our entire model Civil Service into the discard.”
Pico puts special emphasis on one Anti-Charter Committee
ad titled “MINORITY GROUPS and the Proposed Charter.” This
ad posited “[t]he lot of a member of a minority, whether it be in a
location of not-so-fine homes, or one of race, creed, or color, is
never too happy under the best of conditions.” The ad predicted
the proposed charter would create a “dictatorship” of council
members who would “mostly originate from North of Montana”
and this “dictatorship type of government” would block access to
government. “Where will the laboring man go? Where will the
Jewish, colored, or Mexican go for aid in his special problems?”
No evidence shows any “laboring man” or the “Jewish,
colored, or Mexican” supported the Anti-Charter Committee or its
advertising or opposed the 1946 charter.
Pico’s reliance on these ads is misplaced. The Anti-Charter
Committee was not an advocate for minorities or for minority
voting rights. Pico claims news clippings show everyone in Santa
Monica in 1946 understood at-large voting disadvantaged
minorities, but the news clippings show the opposite. Nor are
they reason to discard the legal principle that unanimous
minority support for an electoral result shows the election was
not the product of racial prejudice against those minorities.
The same holds for Pico’s other supposed sources of insight
into the 1946 election. All these arguments unacceptably assume
Pico and its experts can know better than minority leaders in
1946 what was good for minorities in 1946.
45
In sum, Pico failed to prove the City acted with the purpose
of discriminating against racial minorities in 1946. (Feeney,
supra, 442 U.S. at pp. 279–281.) To the contrary, minority
leaders who spoke in 1946 unanimously favored the City’s action.
The City did not violate equal protection in 1946.
2
We turn to 1992.
In 1992, the City appointed a 15-member commission that
wrote a high-minded and comprehensive, but perplexing, report.
The report was perplexing because it expressed strong
dissatisfaction with the status quo but offered no consensus
alternative. The report’s final recommendation was to delay
action and gather more information. The City Council met
publicly to mull the report. This public discussion was a model of
civic engagement: substantive, open, participatory, and cordial.
There was never a hint of hostility to minorities. To the contrary,
speaker after speaker sought ways of increasing minority
empowerment. But after discussing the issue for hours the City
Council remained deadlocked about the right alternative to the
status quo and resolved simply to study the issue further.
As a matter of law, this series of actions was not purposive
race discrimination. The trial court erred again by applying the
wrong legal standard. Feeney required proof of a purpose of racial
discrimination. There was none.
“There is, [moreover], an added wrinkle in this case:
existence in the record of a videotape capturing the events in
question. There are no allegations or indications that this
videotape was doctored or altered in any way, nor any contention
that what it depicts differs from what actually happened. The
videotape quite clearly contradicts the version of the story told by
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[Pico].” (Scott, supra, 550 U.S. at p. 378.) Pico’s version of events
is “so utterly discredited” by this video as to dictate judgment for
the City. (Id. at p. 380.) The trial court “should not have relied
on such visible fiction; it should have viewed the facts in the light
depicted by the videotape.” (Id. at pp. 380–381.)
We have studied this 1992 videotape. It contains nothing
showing a purpose of racial discrimination.
Pico incorrectly focuses on a single sentence from one
speaker, and argues this sentence showed the City’s entire
deliberation and vote was for the purpose of hostile race
discrimination. This one sentence was when Councilmember
Zane said “And so, you gain the representation but you lose the
housing.”
This sentence is not evidence the City had a purpose of
hostile discrimination against anyone. This sentence contained
no express, implied, or coded racial reference or hostile purpose of
racial discrimination.
An objective observer watching this video sees Zane ask
about an incentive that district voting creates. This incentive is
for district representatives to be more responsive to district
voices. Zane questions whether this is a good thing. He was
concerned this incentive would imperil a political cause he
favored: affordable housing projects.
Zane supported affordable housing. Affordable housing is
not a policy with a purpose of harming Latinos or minorities. For
instance, Councilmember Antonio Vazquez testified Santa
Monicans for Renters’ Rights endorsed his successful run for the
Santa Monica City Council in 1990, and he thought he probably
would not have won without that endorsement.
47
Zane noted affordable housing projects usually engendered
NIMBY protests from neighbors. Zane asked Richard Farjado
and Charter Review Commissioner Doug Willis whether they
would acknowledge a drawback of district voting in this context.
The drawback, Zane explained, was the proclivity of district
representatives to oppose affordable housing projects because of
their heightened sensitivity to neighborhood protests. “A small
district makes those protesters look very powerful,” said Zane.
Zane made no reference to Latinos or the Pico area. He
suggested he was concerned with a general tendency, not a
particular district: “I’m not trying to identify a particular
district.”
Zane expressed concern district voting would make NIMBY
voting so prevalent as to doom affordable housing projects.
Richard Fajardo, a former MALDEF lawyer with experience in
voting rights cases, agreed “that has been an issue and that has
been a problem” because “even within the Latino community” a
debate between homeowners and renters would have to continue.
In context and beyond question, Zane’s comment was not a
statement of discrimination against Latinos. The entire
exchange, in context, was a substantive and cogent discussion of
the pluses and minuses of district voting. There were no coded
messages of hostility to Latinos or revealing Freudian slips.
Pico claims Zane implied the Pico area was a dumping
ground for undesirable low-income housing projects. This claim
is incorrect. Zane explained he was not discussing particular
districts but rather the tendency of any district representative to
fear the local protest Zane said typically accompanied affordable
housing projects.
48
We decline Pico’s invitation to take the unprecedented and
unwise path it urges.
When a city’s commission supports minority empowerment
but neither it nor the city can achieve consensus about the right
alternative to at-large voting, the municipal decision to gather
more information does not violate equal protection. As a matter
of law, a court need go no further to vindicate this decision
against the allegation of an invidious purpose.
In sum, the City did not act with a racially discriminatory
purpose in 1946 or in 1992. Pico’s equal protection claims fail.
We gave the parties our tentative opinion in this case in
advance of oral argument. This tentative opinion included the
equal protection analysis presented here, including our statement
of the standard of review and our analysis of the 1946 news
clippings and the events of 1992. At oral argument, Pico
forcefully and at considerable length presented its response to
our tentative opinion, but did not contest our equal protection
analysis in any respect.
The City did not violate the California Voting Rights Act or
the California Constitution. We do not reach the remedies issue
because there was no wrong to remedy.
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DISPOSITION
We reverse the judgment. We award costs to, and direct
the trial court to enter judgment for, the City of Santa Monica.
WILEY, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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