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

August 28, 2023

Stew 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.

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Stew, while the article is generally good, you’re wrong about ranked choice being something new and ranking among “limited experiments.” In fact, it was an early 20th century progressive reform and has been extensively and successfully used since that time to produce governing boards that reflect a town’s entire population, not just factions. As for SLO, there are great merits to districts. Today 93405 is governed by four 93401s who have no clue where 93405 is even located. That’s been the case for many years, and is unfair. But ranked choice would be good too and would produce a great community cross section in government. You mention the absurdity of 13% of eligible voting population electing members of our council; with ranked choice each elected candidate would require a plurality rather than such a piddling minority of votes, and that gives it great validity. Also, if we junked the 4 council member plus elected mayor system we have today and went to a 7 council member with rotating mayor system, that too would be a great step forward for democracy and an impediment to today’s power broker control of city government.

I agree with almost all of this comment. It’s arguments for ranked choice are strong. I also support moving to a rotating mayor, although I’d prefer sticking with 5 rather than 7.

While I disagree with districts I am also very supportive of replacing our current at-large system with a better electoral method. While I disagree with many local right-wingers, I recognize their lack of representation (although I think they’re somewhat to blame for not adopting a more moderate platform to earn a majority of voters, this is SLO after all… just my opinion).

So in cities where districts have been forced upon the citizens has there been any change, I would doubt it, this just costs more money and time to set up and deal with, if people are wanting to voice their opinions get off their butts and go to meetings and or organize a group with a speaker to go to council meetings, do you see this happining, again I doubt it, only on a key issue when it has an effect on a neighborhood, then people band together to voice their opinions.

But, where is the District for the Chinese? The Italians? The Japanese? The Portuguese? The Basque? The Chumash? The Salinans? BLM?

Or, you know, we could just leave it alone, since it’s been working just fine for how many decades?

Erica Stewart and the SLO Progressives want complete control over all of the council seats. Any district elections would allow actual representation by residents.

I’ve argued here before – districts don’t make sense in San Luis Obispo.

First, there is no minority population concentrated in the city that could gain representation through a district. If there were I would be in support – point it out on the map, it doesn’t exist.

Second switching to districts would be anything but simple or inexpensive. There would be a flurry of gerrymandering attempts to secure special interests. As happens on the east coast districts would become fiefdoms for incumbents. This process would be needed every 10 years, swapping voters in and out of districts like pieces on a board.

The vision of neat lines dividing the city into logical communities (along the highway, east and west of Broad St. – north and south of South St) is impossible, the populations just aren’t evenly spread and you would end up with snaking, squiggly lines which divide up neighborhoods arbitrarily.

Third, it’s very possible that there would be less competition for council. You see in many SLO county cities unopposed council candidates who benefit from the inability for opponents to source a “local” incumbent, even though the lines which divide the city into districts can be traversed in a few minutes walk. SLO city is uniform compared to large populations which are contained in state or federal election districts.

Last, the critique of alternatives to district and at-large voting (which we agree has deep flaws) are meritless. You can’t compare the history of using districts to elect the U.S. House of Representatives to local municipal elections – all of the methods mentioned have a history of use, and were common at points in our past. They make common sense in facilitating local representative democracy in local situations, certainly more than a one-size-fits-all district scheme. You should not dismiss them as the experiments of experts, but critique them on their own merits.

Maybe I’m wrong, if you think so, rather than just downvoting this comment, consider replying – where have I gone wrong? (And then downvotes me, because people don’t like opposing views here)

There is a significant minority, as well as white, service worker population in the Laguna Lake area. Maybe they could use a representative in City government outside of Erica’s ivory tower cocktail parties.

I was curious about this since I used to live in that area. You’re right! The Laguna area has a wopping 22% Hispanic or Latino population according to 2020 census tract maps. The actual highest population of Latinos is a long South Higuera, 24%. But compared to other parts of the city (Foothill 16%, Downtown 18%, Laurel 20%) I don’t think this is a concentration that should justify district elections. Maybe we read the tea leaves differently, but I don’t think districts would produce a more diverse council here in SLO City, certainly not more than potential alternatives like ranked-choice.

Also even if we switched to a district scheme, the mayor would remain at-large, seeing as Mayor Stewart won more than 70% of the vote last year, I think she is a good representative of the people of SLO.

There could be a neutral committee (League of Women Voters) to draw district lines. Once the council district lines are established, minor changes every 10 years, simple.

What’s wrong with having citizens relate to a specific council member who lives and perhaps works in their neighborhood? Isn’t a sense of neighborhood what we want to promote?

First, any map would need to be sanctioned by the council, removing any sheen of independence. Look at the political contention around the Board of Supervisors, and look at the way the CA independent commission has split SLO County. Maybe it will go smooth, but I wouldn’t count on it.

In a geographic sense I don’t think sub-city districts do more to relate citizens to council members – we are all so close together. If you lived near Meadow Park, dropped off your kids at Laguna Middle, worked at Sierra Vista, and went to Farmers Market downtown, you would be living your life in all 4 likely districts all the time. Districts make more sense at federal and state levels, where the whole community shares the same representative; SLO is one community.

Lastly being “local” doesn’t ensure you agree with the council member. This is obviously true if you’re a conservative in California (SLO is part of zero Republican districts), I imagine many readers here prefer Georgia, and Texas representatives to our California ones. I don’t know where the current council members reside, but it doesn’t matter all too much; if I lived near a progressive like Harmon I don’t think she would be my champion on Council, I’d prefer to support someone who happens to live a mile or two away.