In the first California Voting Rights Act (“CVRA”) lawsuit to reach the California Supreme Court, the Court refused to narrow the scope of its application. (Pico Neighborhood Association v. City of Santa Monica (2023), Case no. S263972.) Examined in this case were the circumstances under which at-large elections violate the CVRA and the factual showing that a plaintiff must make in order to successfully challenge at-large election systems. The Court opined that a CVRA violation may be established where a challenger shows proof (1) that racially polarized voting exists; and (2) that under an alternative voting system (i.e., “by-trustee area elections”) a protected class would have the potential to elect a candidate of its choice on its own or with the help of crossover voters. The Court rejected the earlier opinion of the Court of Appeal which would have significantly narrowed the scope of the CVRA.
Beyond rejecting a narrowing of the CVRA, the opinion provides some clarification for districts that choose to defend against a CVRA challenge. Notwithstanding the clarification, given the substantial cost associated with defending against a CRVA challenge and the option to transition to by-trustee area elections to avoid a challenge, most districts may still opt to make the change rather than litigating.
Since the enactment of the CVRA in 2002, local agencies throughout the State have been converting their governing board elections away from at-large elections, often under the threat of CVRA litigation. As initial efforts to defend at-large elections from legal challenge were unsuccessful, and as the cost of litigation and the potential liability for challengers’ attorneys’ fees increases, many agencies, including hundreds of districts, have opted to change to by-trustee area elections. By-trustee area elections are elections in which voters in geographic subdivisions of the district each vote for one member of the governing board.
In Pico Neighborhood Association, Latino residents of the City of Santa Monica (“Plaintiffs”) filed a CVRA challenge against the City. At that time, Latinos comprised approximately 16% of the City’s population. The Plaintiffs alleged that the use of at-large elections for city council elections prevented Latinos from electing candidates of their choice or influencing election outcomes; they thus alleged that the system violated the CVRA. After the trial court agreed with Plaintiffs, the City appealed.
The Court of Appeal reversed the trial court, finding that because there were an insufficient number of Latino voters in the City to constitute a majority in any particular voting area, Plaintiffs had “failed to show the at-large system was the reason Latinos allegedly have had trouble getting elected to the City Council. At-large voting is not to blame. Small numbers are.” (See DWK’s update on the Court of Appeal’s opinion here.) The Supreme Court subsequently took review of the case.
The Supreme Court reversed the Court of Appeal’s decision which may otherwise have significantly limited the scope of the CVRA. In doing so it rejected the standard for a CVRA violation proposed by the Plaintiffs and the City, instead adopting a fact-based standard falling between the two.
The Court explained that in order to establish a violation of the CVRA, a challenger must show the existence of racially polarized voting (i.e., that protected class voters vote as a politically cohesive unit, while the majority votes sufficiently as a bloc to defeat the protected class’s preferred candidate), as well as vote dilution. “Dilution” may be established by proof that under an alternative election system the protected class would have the potential, on its own or with the help of crossover voters, to elect its preferred candidate. The Court further explained this analysis should include a “searching evaluation of the totality of the facts and circumstances including the characteristics of the specific locality, its electoral history, and an intensely local appraisal of the design and impact of the contested electoral mechanisms.” The Court remanded the case to the Court of Appeal for application of this standard.
This case will have a significant impact on local agencies seeking to defend against CVRA challenges. First, by overturning the Court of Appeal, the Supreme Court rejected arguments that would have narrowed the scope of the CVRA. Second, the opinion provides guidance on the burden of proof a challenger will need to meet and the type of factual matters which may decide the case. Given the fact-based analysis, this standard will likely increase the already substantial financial cost associated with defending against such cases.
To date, almost all districts faced with a potential CVRA challenge have made the switch to by-trustee area elections to avoid litigation and the associated cost. Many other districts have proactively made the switch to avoid a threat of litigation. While the opinion may provide clarification of the applicable standard, defending against a CVRA challenge will remain a costly endeavor, one unlikely to appeal to many districts.
As 2024 elections are just over a year away, districts that continue to use at-large elections to elect board members should review whether a transition to by-trustee area elections is warranted. As the Supreme Court opinion makes clear, application of the CVRA is a fact-specific analysis, and districts should consult with their counsel regarding application of the CVRA. If a district decides to make the transition, it should continue to work with its counsel to follow the statutorily outlined process to move to by-trustee area elections.
DWK can assist your district in making and implementing a decision to move to trustee-area election systems. If you have any questions regarding the application of the CVRA to your district or the transition process, please do not hesitate to contact a DWK attorney in the BETA or Litigation practice groups.