Court paves the way for SLO City Council to create single seat districts

August 28, 2023

OPINION by STEWART JENKINS

On Aug. 24, California Supreme Court Associate Justice Kelli Evans issued the unanimous decision of the Court in Pico Neighborhood Association vs. City of Santa Monica which is a landmark ruling that may spell the end of at-large elections in cities, like San Luis Obispo.

The Pico Neighborhood Association, represented by Lawyer Kevin Shenkman, convinced the court that the 14% of Latinos in Santa Monica deserved to have a fair chance to elect one of that city’s seven council members.

Back on Feb. 17, San Luis Obispo received a demand by Kevin Shenkman threatening litigation unless the city reforms its election process to provide for single council member districts to give SLO’s 19% Latino community that fair shot to elect one of SLO’s four council members, asserting that Latinos have been underrepresented. The city attorney’s position has consistently been that any minority would need to be concentrated to form a majority-minority district to compel formation of council districts.

Delay is the city’s game, putting off till Aug. 14 considering Shenkman’s demand in a special meeting.

As important as is assuring that minority voters have representation to shape city policy, representative districts for each council seat provide benefits to all, well beyond that important aspect of democracy. I appeared and urged council members to place an amendment to the city charter to create four single member districts on the ballot regardless of whether the California Voting Rights Act would compel them to do so.

Why? Because it provides each side of town with an advocate. With each council member representing one-quarter of SLO (about 12,000 residents), each would be closer to the neighborhoods she or he would represent, and better know what the needs were of their voters.

But, after their closed session, SLO’s city council chose to continue to fight forming representative districts elections that would give each part of their town an advocate.

At-large elections for non-partisan local governments all over California have historically discriminated against minority populations. In San Luis Obispo, a “dominant” interest group with just 25% or 30% of a town’s voting power can prevail in every city council election. Historically, five to eight candidates compete for two seats (with no primary) in November, and the two candidates of the dominant interest group receive a plurality.

With five candidates, each winner needs to receive no more than 21% of the total vote to walk into office; with eight candidates, only 13% of the vote can win. This leaves the actual majority with no voice or influence on city policies, public parks, ordinances, development, fire fighters, ambulance crews, police protection, public transit, roads, bike lanes and spending.

Now the California Voting Rights Act requires local non-partisan elections be conducted by an alternative method other than “at-large” elections (usually by imposition of district elections). Focused on ending election impotency of minority race, color and language groups in a local government, the act forbids an at-large election “that impairs 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 … of the rights of voters who are members of a protected class ….” Elections Code Section 14027.

Santa Monica had a city council of seven, all elected at-large. The Pico Neighborhood striving to have its own council district, had a population that was 30% Latino. For over 72 years the court found only one Latino had ever been elected to the council.

The trial court ruled the Pico Neighborhood’s 30% Latino populations would have the ability to influence the outcome of an election for City Council if Pico Neighborhood was one of seven single council seat district, and therefore imposed a district map on Santa Monica. Santa Monica appealed. And the Court of Appeal reversed, holding that California Voting Rights Act required that districting could only be imposed if a majority-minority district could be formed. Appellate Justices failed to see the statute’s focus on giving minorities the right to influence the outcome of an election.

The Supreme Court took the Pico Neighborhood Association’s appeal, and all the dominant interest group knives came out. “Friend of the Court” (amicus) briefs supporting at-large voting that has stilled minorities voices were filed by The California League of Cities, The California Special Districts Association, The League of Women Voters of Santa Monica, the Alliance of Latino and Black Voters, the Human Relations Council of Santa Monica Bay Area and Community for Excellent Public Schools and The Santa Monica Transparency Project.

But the establishing minority representation from part of a city was not without friends. “Amicus Curiae” briefs were filed on behalf of the Pico Neighborhood Association. Most prominent was California Attorney General Rob Bonta, along with Santa Monica Councilman Oscar de la Torre, the Asian Americans Advancing Justice-Asian Law Caucus, Asian Americans Advancing Justice, UCLA Voting Rights Project, and FairVote.

The Supreme Court determined that the Act’s focus on giving minority voters a right “to influence the outcome of an election” expanded the way in which at-large voting methods must now be replaced with districts or other alternative voting structures.  That new standard meant:

“[The phrase ‘influence district’ means a district where a racial minority or language minority can influence the outcome of an election even if its preferred candidate cannot be elected].) As the Attorney General (who is appearing in this action as amicus curiae) suggests, a protected class’s ability to influence the outcome of an election could include, for example, forming a coalition with another group to elect a candidate acceptable to each or blocking an unacceptable candidate.” Pico Neighborhood Association v. City of Santa Monica (2023) ___ Cal.5th ___, (page 22 of the opinion, internal quotation marks omitted).

The Supreme Court held that a Latino voting block of 30% in a potential district was sufficient to attract cross-over voting for their candidate from other groups in that district, or enough to prevent election of a candidate who would be an anathema to Latino interests.

But, that is not the end of the story for Santa Monica and the Latinos living in the Pico Neighborhood. Because the Supreme Court held that trial courts could consider other alternatives when outlawing at-large voting schemes, cities like Santa Monica and San Luis Obispo will now fall back to argue over newer, less tested alternatives than single council member geographic districts. Besides district-based elections, the high court said that judges must also consider “cumulative voting schemes,” “limited voting schemes,” and “ranked choice voting” to determine which system would work best to assure that minorities have a fair and equal opportunity to elect their candidates or influence which candidates are elected to govern them.

For 234 years Americans have succeeded in democracy based on electing representatives who live among them in districts. Old, young, Ph.D. and tradesman alike all understand such a straightforward voting system by district. Cumulative voting, limited voting and ranked choice voting have their supporters, and have limited experiments. There are self-appointed “experts” to provide opposing views and reams of statistical data supporting their views about these methods for manipulating voting outcomes.

Instead of the inexpensive task of switching to district election where SLO council members would each represent 12,000 folks from their own part of town, I sadly predict we will be faced with long expensive litigation as a city.

First, the council will assert that no part of has enough Latinos to influence an election. When that fails, the current council will defend claiming cumulative or ranked is preferable, to delay the inevitable loss of predominance by the dominant interest group now holding all the council seats.

Stew Jenkins is a San Luis Obispo Lawyer, repeatedly appointed by the Superior Court as a Special Master. His legal work has resulted in numerous California Election Statutes being declared unconstitutional. He also provides Estate Planning and appears weekly on K-News, FM 98.5, as host of SLO COUNTY PUBLIC POLICY & THE LAW.