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On August 24, 2023, the California Supreme Court issued a unanimous opinion in a California Voting Rights Act (“CVRA”; Elections Code §§ 14025 et seq.) case that has been pending for more than seven years: Pico Neighborhood Association v. City of Santa Monica, California Supreme Court Case No. S263972. While the Supreme Court’s opinion lays out a framework for trial and analysis of CVRA cases, the case is not fully resolved yet, as the Supreme Court remanded the case to the Court of Appeal for further consideration.
After proceeding through the trial court and the Court of Appeal, the key element of this voter districting decision fell upon the evidentiary issue of proving voter dilution amongst protected voter classes (in this case, Latino voters dispersed throughout the City). Ultimately, the case proceeded to the California Supreme Court.
The Supreme Court set forth the elements needed to challenge the ability of protected class voters to elect candidates of their choice, or influence the outcome of elections—and whether such voters are impaired by the existing voting system in a jurisdiction. The Supreme Court did so, in part, by comparing the elements of a CVRA claim to the elements of a similar claim under the Federal Voting Rights Act (“FVRA”; 52 U.S.C. §§ 10301 et seq.). The two laws have certain elements in common, but the CVRA differs from the FVRA in important respects, as further outlined below. Both laws require a plaintiff to show racially polarized voting exists in the jurisdiction. Racially polarized voting exists when bloc voting by the majority usually prevents a protected class from electing its preferred candidates. Like the FVRA, the CVRA requires a plaintiff to establish the existence of racially polarized voting and that the protected class members vote as a politically cohesive unit, all while the majority votes sufficiently and usually serve to defeat the protected class’ preferred candidate.
The CVRA differs from the FVRA, first, in the election procedure to which it applies. While the FVRA casts a wide net for potential impairments to fair elections, the CVRA focuses on a specific election procedure: at-large elections for non-partisan offices. Second, the CVRA addresses impairments to a protected class’ ability to influence the outcome of an election, not just the ability of the protected class to elect candidates of its choice. Third, the CVRA explicitly rejects the FVRA requirement that formation of a majority-minority district must be possible. Fourth, the CVRA expressly lists factors to be considered in the analysis, which overlaps to some degree with certain legislative factors attendant to the FVRA.
The specific issue on which the California Supreme Court granted review was: what constitutes dilution of a protected class’ ability to elect candidates of its choice or to influence the outcome of an election within the meaning of the CVRA? Based on the language of Election Code §§ 14027 and 14028, the plaintiffs in Pico Neighborhood took the position that racially polarized voting, by itself, establishes dilution of the protected class’ voting power. The Supreme Court rejected that argument, relying on the FVRA and legislative history of the CVRA for guidance. Applying this guidance, the Supreme Court concluded that the plaintiff must also show that racially polarized voting actually dilutes the protected class’ voting power. Otherwise, the plaintiff could prevail without showing that the effect of racially polarized voting can be remedied by a change in the voting system, and changing the voting system will have no real effect.
The Supreme Court further held the plaintiff must identify a reasonable alternative to at-large voting that provides, for purposes of analysis, a benchmark for determining whether dilution exists. Alternative election systems the Supreme Court identified that could be used as a benchmark for analysis include not only district elections, but other alternative systems that can be applied to at-large elections, such as:
- Cumulative voting – a voter can cast as many votes as there are candidates to elect, but may cast multiple votes for the same candidate.
- Limited voting – a voter is allowed to cast fewer votes than there are candidates to elect.
- Ranked choice voting – a voter ranks candidates in order of preference; if no candidate receives a majority of first-place votes, then the candidate with the least number of votes is eliminated and ballots are reviewed for the voters’ second choice; that process continues until only two candidates remain and the candidate with the greater number of votes is the winner.
The Supreme Court also held that the Court of Appeal had erred in finding the CVRA had not been violated because a majority-minority, or near majority-minority, district could not be created. In addition to the express rejection of such a requirement in the language of the CVRA, such a requirement is inconsistent with the broader scope of the CVRA, which recognizes claims the protected class is unable to influence election outcomes, as well as claims the protected class cannot elect its preferred candidates. Further, the requirement for a majority-minority district is inconsistent with the availability of other election systems that can address vote dilution.
Determining whether the protected class has the potential to elect its preferred candidate under an alternative election system requires a functional analysis of the political process in the jurisdiction and a searching practical evaluation of past and present reality. The key question in establishing dilution of a protected class’ ability to elect its preferred candidate under the CVRA is what percentage of the vote would be required to win. In predicting how many candidates are likely to run and what percentage may be necessary to win, courts may also consider the experience of other similar jurisdictions that use various alternatives to at-large voting.
Because the CVRA applies exclusively to nonpartisan elections where there may be more than two candidates, the winner may be chosen with far less than a majority of the votes. This may be due to crossover votes, or it may be due to remedies other than the establishment of voting districts. Determining whether circumstances exist in which the protected class’ vote is diluted requires an examination of all of the scenarios (and very detailed factual analyses) affecting the electoral process in the community, including predicting how many candidates are likely to run and what percentage of the vote is needed to win. The experience of other similar jurisdictions that use various electoral systems can be considered by the court in determining whether racially polarized voting in at-large elections results in dilution of the protected class’ vote.
The Supreme Court did not address the CVRA’s provision regarding a protected class’ ability to influence the outcome of elections because the plaintiff did not present the case as one involving the ability to influence the outcome. Because the Court of Appeal had not evaluated the dilution element of the CVRA under this standard, the Supreme Court reversed the judgment and remanded the case to the Court of Appeal for it to reconsider the plaintiff’s CVRA claim. It is not clear from the opinion whether further trial court proceedings may be necessary for the Court of Appeal to undertake that task.
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