1 Xavier Mota
From: Josefina Santiago <[email protected]>
Sent: Wednesday, November 8, 2023 10:17 PM
To: Gleam Davis; Phil Brock; Christine Parra; Lana Negrete; Jesse Zwick; Caroline Torosis; Oscar de la Torre; councilmtgitems
Cc: David White; Douglas Sloan
Subject: Closed session CVRA item on Nov 13 agenda - don't settle, continue to defend against lawsuit
EXTERNAL
Dear Mayor Davis, City Councilmember and City Staff
As a Latina who was born and raised in the Pico Neighborhood from a working class family, and as someone who supports voting rights, I believe that the California Voting Rights Act (CVRA) lawsuit against the City of Santa Monica is misguided, and that the City should continue to defend itself in court.
The recent Californian Supreme Court ruling in this case exposed the weakness in many of the core premises of the plaintiff’s argument. I know this, because the plaintiff’s incorrectly and misleadingly cite my unsuccessful 2002 candidacy for Santa Monica City Council as an example that Latin@ candidates can’t get elected.
The plaintiffs have long maintained that to prove a voting rights violation and compel an electoral system change, one only needs to show the existence of “racially polarized voting” — a difference between which candidates a protected class of voters prefer — in this case Santa Monica Latinos — compared to the rest of the electorate. On this basis, the plaintiff’s have selectively and problematically argued that the single time Latino Santa Monica Councilmember Tony Vazquez was defeated proves their case, but the three times he was elected should be ignored.
But the State Supreme Court ruled that in addition to racially polarized voting, that the plaintiffs must demonstrate "vote dilution” — where the electoral system being challenged so weakens the protected class's influence that it is discriminatory.
According to the Court, the way they would do that is by showing that another legally allowable system proposed by the plaintiffs would have a better chance of electing the protected class’s preferred candidates. And the way to do that, according to the Court, is to conduct “a searching evaluation” and “an intensely local appraisal” of the totality of the facts and circumstances of the local political situation.
What would such a searching evaluation of local Santa Monica politics reveal? When I ran for City Council in 2002, I didn’t fail to be elected in 2002 because I am Latina. Every time a candidate of color isn’t elected doesn’t mean it was their race or ethnicity and therefore there is a voting rights act violation. Sometimes it is just the politics of that political race - and that is exactly what the State Supreme Court says is relevant to judge if the electoral system is discriminatory.
In my case, had I received the Santa Monicans for Renters Rights (SMRR) convention endorsement — an endorsement I narrowly lost, I would have likely been elected that year. But ironically, I didn’t get the endorsement because one of the plaintiff’s threw his support (and the support of the many first-time SMRR members he recruited for the convention) to another, non-Latino candidate, apparently in exchange for that candidate’s support for endorsement of his School Board candidacy at the same convention. You can bet the plaintiff’s didn’t include that information in their court briefs. Yet they want to cite my race in support of their case? With their lawsuit, the plaintiffs seek to compel Santa Monica’s to abandon its at-large voting system — where all residents (including all Santa Monica Latinos) get to vote on all seats. In its place, they want to install a system of seven, single-seat winner-take-all districts. Based upon the California Supreme Court’s latest ruling, for the plaintiffs to win their case in court, they also have to demonstrate that such a system would give more influence to Latinos in 2 Santa Monica than the current system, specifically via drawing district lines to concentrate as many Latinos as possible inside of a single district.
But because Latinos are spread out over Santa Monica, the highest Latino concentration that could be drawn would be a Pico Neighborhood-based district of only 30% Latinos. At the same time, 2/3 of Santa Monica Latinos would be left outside the district. Spread over six other districts, these ‘other’ Latinos would face overwhelmingly white electorates and see their own influence significantly diluted in each, compared to their collective numbers citywide.
They’d also lose their vote on six of the seven seats that they have today, which occur in a more diverse electorate.
But it is in regards to the plaintiff’s proposed Pico Neighborhood-based district that exposes another core fallacy of their argument is exposed. The plaintiffs argued in court that even a 30% Latino district would be viable because that 30% would feature a unified Latino vote. Obviously that is not the case - made clear when the plaintiffs didn’t support my City Council run in 2002 and again when they openly opposed Latina Ana Jara’s appointment to the City Council to fill a mid-term vacancy in 2019.
The reality is that not all Latinos vote alike. Latinos are unique human beings for which being Latino is part, but not all of their identity. Being Latino may determine some, but not all of their political preferences.
Even where there is commonality on issues among Latino voters, there could still be significant vote-splitting among Latino support if multiple Latino candidates all seeking a single district seat, something which could be very likely in a Pico Neighborhood-based district. And depending upon the issues and candidates involved in a given election, Latinos may prefer non-Latino candidates in many races.
It would require ignoring all of this to accept the plaintiff’s core premise of a united and monolithic Latino-community vote in their proposed 30% district - something that would require making wildly unsubstantiatable assumptions about voter behavior.
The reality is that the CVRA was not designed for a city like Santa Monica. In Santa Monica, most Latino-preferred candidates that run viable campaigns already win under its at-large system; and currently at least three of seven Santa Monica City Council Members are Latino/a - 43% of the Council, far more than the 13.8% of Santa Monica voters who are Latino.
Based upon the California Supreme Court’s recent ruling, Santa Monica is likely to prevail. This would be a good thing and something the City Council should pursue - and not just to prevent Santa Monica from paying millions of dollars to the plaintiff’s attorneys and having a radically different voting system imposed upon it without a public vote.
The CVRA is a very important law, but it needs to be updated by the California State Legislature to account for the limitations of the single-seat, winner-take-all approach to promoting voting rights — including possibly expanding the law to offer proportional ranked-choice voting as an additional option to improve minority representation . Santa Monica prevailing in the court would give impetus to the Legislature to update the CVRA. Settling the case with the plaintiffs would do the opposite - it would take away the incentive for the legislature to act to update what is now an over twenty year-old law.
So not only does the City Council have the responsibility to continue to defend itself against a poorly-conceived lawsuit, but it has the unique opportunity to spur needed action on the state level to improve voting rights in our state. That’s why the Council should decline any settlement with the plaintiffs and continue to defend itself in court.
Sincerely,
Josefina Santiago
From: Chris Harding
To: Gleam Davis; Phil Brock; Oscar de la Torre; Lana Negrete; Christine Parra; Jesse Zwick; Caroline Torosis Cc: Douglas Sloan; David White; Susan Cola; Joe Pertel ([email protected]); councilmtgitems Subject: CVRA Case (Pico Neighborhood Association et al. v. City of Santa Monica) Date: Thursday, November 9, 2023 2:23:09 PM
Attachments: Letter to City Council.pdf
Santa Monica CVRA Case - Latino and Latino-Preferred Candidate Success Summary 2023.11.05.pdf
EXTERNAL
Dear Councilmembers,
Please see the attached letter with respect to the CVRA lawsuit.
Sincerely,
Chris Harding
Christopher M. Harding | Attorney at Law
1250 Sixth Street, Suite 200 | Santa Monica, CA 90401
O: (310) 451-2968 | F: (310) 392-3537 | [email protected] 1 CHRISTOPHER M. HARDING
1250 SIXTH STREET, SUITE 200
SANTA MONICA, CALIFORNIA 90401
E‐MAIL
[email protected]
November 9, 2023
Santa Monica City Council
1685 Main Street, Room 209
Santa Monica, CA 90401
Re: CVRA Case (Pico Neighborhood Association et al. v. City of Santa Monica) Dear Councilmembers:
As you know, Joe Pertel and I represent four non-profit organizations in the CVRA case. We filed an Amicus Curiae Brief in the California Supreme Court in 2021 and we plan to file an Amicus Curiae Brief in the Court of Appeal.
We are aware that plaintiffs and their counsel are again pressuring the City Council for settlement of this case. Apparently, plaintiffs and their attorneys are demanding that the City concede the case’s merits and pay substantial attorneys’ fees (millions of taxpayer dollars) to plaintiffs’ attorneys. We understand that the City Council will, again, be discussing this case in closed session next week.
As we have argued previously, any such settlement would be both unlawful and unwise. This letter elaborates on why such a settlement would be unlawful.
Our legal argument is simple and compelling:
The Santa Monica City Charter, in section 600, establishes at-large elections for City Council.
Article XI, section 3 of the California Constitution provides that amendments to a City Charter require voter approval.
Plaintiffs and the City Council cannot evade this requirement of the California Constitution through settlement. We are confident that, if such an attempt were made, the Court of Appeal would refuse to enter judgment as contemplated in such a settlement agreement because it would be unlawful and contrary to public policy.
In this regard, we suggest you ask your attorneys to review two cases: (1) City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747; and (2) Rheinhart v. Nissan North America Inc. (2023) 92 Cal.App.5th 1016.
2 City of Santa Barbara v. Superior Court: In this case, the California Supreme Court held that a settlement agreement purporting to release a defendant from liability for certain future acts was void as a matter of public policy and would not be enforced by the courts. The Supreme Court stated:
“Applying that general rule here, we hold that an agreement purporting to release liability for future gross negligence committed against a developmentally disabled child who
participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable.” (41 Cal.4th at p. 777)
Rheinhart v. Nissan North America Inc.: Here, the Court of Appeal voided a pre-litigation settlement agreement addressing claimed violations of a state consumer protection law (the Song-Beverly Consumer Warranty Act) as contrary to public policy.
In the CVRA case, the plaintiffs’ contemplated settlement agreement would be unlawful and contrary to public policy because it would circumvent the democratic rights of Santa Monica voters under the California Constitution to decide whether to convert from at-large City Council elections, as mandated by the City Charter, to district elections. Our clients are prepared to challenge any such attempted settlement and we are confident of prevailing if such a challenge becomes necessary.
In this regard, we do not believe a majority of the City Council has the legal authority to “consent” to a CVRA violation -- the apparent basis for the proposed settlement -- when the law (as clarified by the California Supreme Court) and indisputable evidence of Santa Monica election results clearly indicate otherwise. Under the Supreme Court’s recent opinion, plaintiffs must prove both racially-polarized voting and vote dilution to prove a CVRA violation; in this case, plaintiffs cannot prove either.
As for racially-polarized voting (which requires a showing that Latino-preferred candidates usually lose), Santa Monica City Council election results prove that Latinopreferred candidates usually win and outperform candidates who are not Latinopreferred. (See the attachment summarizing election results for the Santa Monica City Council as well as the SMMUSD Board of Education from 2002-present.) As for vote dilution, plaintiffs cannot possibly satisfy the Supreme Court’s newly-articulated standard that plaintiffs must prove district elections would improve the performance of Latino-preferred candidates. Given the history of Santa Monica City Council election results, and the current makeup of the City Council, such proof is not even plausible.
We urge each of you to honor your oath of office (including your obligation to support and defend the California Constitution) and refuse to concede the CVRA case to plaintiffs, a case you are on the verge of winning. In staying the course, you will be defending the democratic rights of the Santa Monica voters to decide how to elect the City Council. In addition, you will be protecting Santa Monica taxpayers from needlessly paying millions of dollars to plaintiffs’ counsel.
3 In closing, we urge you to weigh the irreparable damage you would cause to the City’s reputation and integrity if you were to cooperate in a settlement agreement where Councilmember de la Torre is allowed to vote (especially if he were to cast the deciding vote). Contrary to what Mr. de la Torre claimed in your October 10th meeting, no court has ruled that Mr. de la Torre lacks a conflict of interest in this case. (See my letter to you dated October 12th.) Given that Councilmember de la Torre is married to plaintiff Maria Loya, that he was for many years a plaintiff himself (as President of the Pico Neighborhood Association), and that he has a close professional and personal relationship with plaintiffs’ lead counsel, Kevin Shenkman, the public would rightly be cynical about any councilmember who votes for such a settlement in concert with Councilmember de la Torre. Indeed, such City Council action would be corrupt. None of you should be complicit in such corruption.
The most recent evidence of Council de la Torre’s conflict of interest is NOMA’s November 2nd meeting, where Councilmember de la Torre was agendized to discuss the CVRA case (and other topics) and attorney Shenkman appeared in his place. This is the latest example of the de la Torre/Shenkman “tag-team” joint effort in the CVRA case. And it highlights the wisdom of Judge Fruin’s denial of Councilmember de la Torre’s summary judgment motion in his lawsuit against the City. In denying de la Torre’s motion, Judge Fruin stated:
“Plaintiffs filed their motion for summary judgment two months before the City filed its motion. Plaintiffs’ motion is lacking in sufficient evidentiary support to grant summary judgment. Plaintiffs support their motion only with
declarations from De La Torre and Shenkman (not counting the Trivino-Perez declaration to provide the Court with a copy of its own prior ruling). The Shenkman declaration does not address what plaintiffs knew would be a main issue for the City, e.g its contention that Shenkman is a de facto attorney for De La Torre. The De La Torre declaration does not address the elephant in the room: should he participate in the City’s decisions as to the claims of the CVRA
attorneys for $22 million in attorneys’ fees (inflated by the use of 2.3 multiplier)?” (Judge Fruin’s Ruling at p.18.) Judge Fruin, when making this statement, was aware that Councilmember de la Torre has asserted that his post-2020 election communications with attorney Shenkman are protected by the attorney-client privilege (thus admitting an ongoing attorney-client relationship with attorney Shenkman). In de la Torre’s January 20, 2022 deposition, de la Torre refused to answer questions about his post-2020 election conversations with attorney Shenkman on the basis of attorney-client privilege. 4 The entire City Council should heed Judge Fruin’s warning and refuse to be a participant in a corrupt settlement of the CVRA case, as is being attempted by Councilmember de la Torre and attorney Shenkman.
Sincerely,
Christopher M. Harding
cc: Douglas Sloan
David White
Susan Cola
CEPS Executive and Legal Committees
The League of Women Voters of Santa Monica
Alliance of Santa Monica Latino and Black Voters
Joseph Pertel
Santa Monica CVRA Case: Latino and Latino-Preferred Candidate Success Below is a summary of the elections evidence in the Santa Monica CVRA case with respect to the Latino and Latinopreferred candidate success for the Santa Monica City Council and Santa Monica-Malibu Unified School Board of Education since the CVRA was adopted in 2002.
A. Latino Candidate Success.
1. Santa Monica City Council Latino Candidate Success.
14.8% of City Council candidates were Latino/Latino-surnamed (21 of 142), slightly higher than the percentage of Latino voters at the time of trial (13.6%). 22.5% of winning City Council candidates were Latino/Latino-surnamed (9 of 40), substantially greater than the percentage of Latino voters at the time of trial (13.6%) Latino/Latino-surnamed candidates won 42.9% of their City Council election campaigns (9 of 21). In contrast, non-Latino/non-Latino-surnamed candidates won 25.6% of their election campaigns (31 of 121).
2. SMMUSD Board of Education Latino Candidate Success.
25.8% of School Board candidates were Latino/Latino-surnamed (17 of 66), compared to only 9.1% Latino voters in SMMUSD.
35.9% of winning School Board candidates were Latino/Latino-surnamed (14 of 39), compared to only 9.1% Latino voters in SMMUSD.
Latino/Latino surnamed School Board candidates won 82.4% of their School Board election campaigns (14 of 17).
In contrast, non-Latino/non-Latino-surnamed School Board candidates won only 51% of the School Board election campaigns (25 of 49).
B. Latino-Preferred Candidate Success.
1. Santa Monica City Council Latino-Preferred Candidate Success.
For Santa Monica City Council elections for which there is Latino-preferred data (2002-2016):
There has been at least one Latino/Latino-surnamed candidate in every election except for one: 2010 (the four-year seats).
Latino-preferred candidates have won 19 of their 24 elections, or 79.17%. If the single City Council election for which there were no Latino candidates (2010-full-term seats) is excluded, then Latinopreferred candidates have won 17 of their 22 elections or 77.3%. In contrast, non-Latino-preferred candidates have won only 8 of their 70 elections (11.4%).
2. SMMUSD Board of Education Latino-Preferred Candidate Success.
For SMMUSD Board of Education elections for which Latino-preferred data is available (2002-2014):
There have been one or more Latino/Latino-surnamed candidates in every election, with no exceptions.
Latino-preferred candidates have won 21 of their 24 elections, or 87.5%. In contrast, non-Latino-preferred candidates have won only 4 of their 18 elections (22.2%). 1 Xavier Mota
From: Frank J Gruber <[email protected]>
Sent: Saturday, November 11, 2023 11:53 AM
To: councilmtgitems
Subject: Item 3.A, Nov. 13 special meeting - Settlement of CVRA case
EXTERNAL
Dear City Council Members,
I am writing about the closed session agenda item on the agenda of the Nov. 13 special meeting to discuss settling the CVRA case. My plea is that you not “snatch defeat away from the jaws of victory” by agreeing to district elections.
The California Supreme Court ruled that dilution under the CVRA cannot be proven unless plaintiffs can not only show racially‐polarized voting, but also identify a “reasonable alternative voting practice.” The court did not accept the trial court’s decision to impose districts as such an alternative, and ruled that plaintiffs have the burden to identify a proposed lawful alternative system that creates the potential to elect candidates and improve a protected class’s overall political power. In dismissing the reasonableness and effectiveness of district elections in jurisdictions like Santa Monica where the protected class cannot be collected in a majority‐ minority district, the court emphasized systems like cumulative or ranked choice voting. While because to my mind racially‐polarized voting cannot be proven in Santa Monica I oppose any settlement before further proceedings in the Court of Appeal, it is clear that in Santa Monica district elections would erode the political power of the Latino community rather than enhance it.
With respect to districts, the Supreme Court specifically held that if the proposed remedy is to convert an at‐large electoral system to districts, the plaintiffs “must show not merely that the protected class would have a real electoral opportunity in one or more hypothetical districts, but also that the incremental gain in the class’s ability to elect its candidate of choice in such districts would not be offset by a loss of the class’s potential to elect its candidates of choice elsewhere in the locality.” (Emphasis added.) This is particularly relevant in a jurisdiction like Santa Monica where the population of the protected class is a small portion of the whole and is not entirely concentrated geographically. If you try to concentrate that population in one district—in Santa Monica, one of seven—the protected class will lose power in the other districts given that the six council members from other districts will have many fewer constituents who are of the protected class.
The court ruled that to determine potential remedies, courts had to undertake a fact‐specific and “intensely local” evaluation of (i) whether a violation of the CVRA potentially occurred, and if so, (ii) whether a remedy can be tailored so that the remedy does not make the protected class “worse off.” The court emphasized that in communities where majority‐minority districts were 2 not possible, the determination of impacts on protected class political power (“dilution”) had to be done in the context of coalition politics and “crossover voters.” If districts are imposed in Santa Monica, most Latino voters will be outside the “Latino district” (which itself would not have a majority of Latinos). They would lose political power because they would now get to vote for only one city council member each four years, rather than seven over the course of four years. Council members from outside the district would have few Latino voters in their districts to pay attention to. There would be little reason for majority‐interests to form coalitions with Latinos.
Over many decades we have seen in Santa Monica the effectiveness of coalitions, as interest groups both formal and informal have formed alliances in favor of particular issues. These coalitions and their crossover voters bespeak a lack of racially polarized voting, because coalitions prioritize issues. Alliances with non‐Latino voters have enhanced the power of the Latino community. These alliances were effective because Latinos, like all Santa Monicans, get to vote for all seven council members. This means that candidates, and ultimately council members, wherever they live need to pay attention to the needs of the Latino community.
A determination that there is racially polarized voting in Santa Monica would elevate form over substance. If the Court of Appeal finds that racially‐polarized voting does not exist, then it must dismiss the case. Please do not settle the case while it is pending before the Court of Appeal. If the Court of Appeal finds that racially‐polarized voting exists, it may still craft a remedy, such as ranked choice voting, that is less drastic and damaging than districts. The Supreme Court clearly was inviting the Court of Appeal to do that, by spending considerable time on these alternative remedies.
Thanks for your consideration.
Sincerely,
Frank Gruber (resident of Ocean Park)
310 508 2626
1 Xavier Mota
From: Cathy Larson <[email protected]>
Sent: Sunday, November 12, 2023 8:08 PM
To: Caroline Torosis; Christine Parra; Gleam Davis; Jesse Zwick; Lana Negrete; Oscar de la Torre; Phil Brock; councilmtgitems
Cc: David White
Subject: Nov 13 Item 3-A
EXTERNAL
Councilmembers,
I oppose any seƩlement in the CVRA case before further proceedings in the Court of Appeal.
I urge you to conƟnue to support our current at large voƟng.
At large voƟng requires that ALL councilmembers listen to ALL Santa Monica residents.
I feel residents voƟng power and voices would be reduced by changing to district voƟng in Santa Monica.
We live in such a compact City that when issues arise in one corner of our City, it impacts us all. Therefore, we need fourteen ears listening to our voices not just two.
Cathy Larson
Santa Monica Resident
1 Xavier Mota
From: Dan Hall <[email protected]>
Sent: Monday, November 13, 2023 12:49 AM
To: councilmtgitems; Gleam Davis; Lana Negrete; Phil Brock; Christine Parra; Oscar de la Torre; Caroline Torosis; Jesse Zwick
Cc: David White
Subject: November 13 - Item 3A
EXTERNAL
Mayor Davis, Mayor Pro Tempore Negrete, Councilmembers Brock, Parra, de la Torre, Torosis, and Zwick:
I am writing to urge you to stay the course and allow the courts to rule on the case Pico Neighborhood Association and Maria Loya v. City of Santa Monica.
There is no question that for decades the Pico Neighborhood, as a person of color neighborhood, was harmed by previous City administrations. There is no question that for decades the Pico Neighborhood had no residents on Council and that no person of color was elected to Council. These are facts and I am not questioning our City's shameful past when it comes to race relations and the devastating policies that harmed our Black, Latino, and Asian communities in Santa Monica. In decades past, districting would have made sense for our community.
However, I urge you to consider the current state of our City and community and how our Latino population is no longer confined to the Pico Neighborhood. In fact, most Latinos now live outside the traditional boundaries of the Pico Neighborhood. If Santa Monica were to be districted as proposed, a majority of the Latino population would be "cracked" into majority white districts. Samuel Wang, Director of Princeton University's Princeton Gerrymandering Project defines cracking as "spreading out a minority community between districts so they make up a small portion of the electorate and have little political power in each district." The data shows that districting Santa Monica without any at‐large representation will crack 65% of Latino voters into majority white districts, significantly diluting the power of Latinos as a voting bloc.
Consider the 2020 Census data:
2 3
Now consider a version of districts once proposed for Santa Monica, sourced from court documents in 2018 and published online by the Lookout on November 26, 2018:
4 If you superimpose the census tracts onto the proposed districts, tracts 7018.01 and 7018.02 are fully within the shaded "District 1." The proposed district also includes portions of census tracts 7017.01 and 7017.02:
5 Now, to be conservative, I will consider all of 7017.01 and 7017.02 to be included in a proposed "District 1." This would create a district that has 4,728 self‐identifying Latinos or Hispanic individuals, which equates to 35% of Santa Monica's total Latino or Hispanic population (13,539 individuals) per the 2020 Census. 6 With 35% of Santa Monica's Latino population residing in 7017.01, 7017.02, 7018.01, and 7018.02, 65% of Santa Monica's Latino population resides outside of those four census tracts. 7 Now, what does that look like for the 65% of Latino Santa Monicans who live outside the proposed "District 1?" In the map below, you can see that the highest percentage Latinos reach in any of the other proposed districts is 16%. 8 We must ask ourselves: is it worth severely limiting the political power of 65% of Latino voters across the city's seven Council seats to potentially increase the power of 35% of Latino Santa Monicans with one Council seat? Due to this geographic dispersion demonstrated in the Census data, Latinos are more powerful as a voting bloc in an at‐ large district. Without an at‐large district, approximately 8,811 Latino voters will lose political power vis‐a‐vis the approximate 4,728 residing in the Pico Neighborhood.
Perhaps the Plaintiff's proposed districts are thrown out by the Court. Consider another example then, using the traditional neighborhood association boundaries instead of the Plaintiffs' proposal:
9 Again, conservatively giving the Pico neighborhood the overlap between the Pico Neighborhood Association (shaded green in the map above) and the Mid‐City Neighbors Association bordered by 20th St., Santa Monica Blvd., Lincoln Blvd., and Colorado Ave., and assuming the entirety of census tract 1709.02 (covering Downtown) is included, the Pico Neighborhood's Latino population remains a modest 4,822 or 1% more of the City's Latinos than the previous example with the proposed districts.
Once again, the majority of Latino voters in Santa Monica are cracked into majority white districts. Note that in this hypothetical scenario, the Pico Neighborhood (+ entirety of Downtown census tract) has an even smaller percentage of self‐identifying Latino or Hispanic individuals per the 2020 Census data. 10 I shared this additional example because we could cut this data a hundred ways; simply put, there is no way to create a majority Latino district. There is no way to district the City, without additional at‐large districts, that doesn't subsume thousands of Latinos into majority white districts, diluting Latino voting power across the city.
I urge Council to let the Court determine whether the approximate 4,800 Latinos living in the Pico Neighborhood (however geographically defined) constitute a large enough plurality and influence in a single district vis‐a‐vis 13,539 Latino voters who can, in our current form, exert influence across all seven at‐large council members.
Stay the course and protect the voting power of 65% of your Latino constituents.
Thank you for your consideration,
11 Dan Hall
Vice President, Political Action
Santa Monica Democratic Club
Sources:
https://www.data.census.gov
https://www.surfsantamonica.com
https://www.cnbc.com/2021/08/13/gerrymandering‐could‐limit‐minority‐voters‐power‐even‐after‐census‐gains.html City of Santa Monica
1 Xavier Mota
From: Brodsky, Michael <[email protected]>
Sent: Monday, November 13, 2023 11:15 AM
To: councilmtgitems
Subject: Item 3.A, Nov. 13 special meeting - Settlement of CVRA case
EXTERNAL
I do _NOT_ support SeƩlement of CVRA case.
Santa Monica is a small city, only 8.5 square miles.
Dividing Santa Monica into even smaller districts that are just a few blocks in size will disenfranchise neighbors from neighbors.
Sincerely,
Michael Brodsky
Santa Monica
1 Xavier Mota
From: Natalya Zernitskaya <[email protected]>
Sent: Monday, November 13, 2023 11:30 AM
To: councilmtgitems
Cc: [email protected]; Caroline Torosis; Jesse Zwick; Christine Parra; Oscar de la Torre; Lana Negrete; Gleam Davis; Phil Brock; David White
Subject: 11/13/2023 City Council Agenda Item 3A
EXTERNAL
November 13, 2023
Re: City Council Special Meeting Agenda Item 3A
Dear Mayor Davis, Mayor Pro Tem Negrete, and City Councilmembers, Thank you for staying the course and letting the CVRA case be heard at the Court of Appeals, and I urge you to please continue down that path as it is the best way to bring a fair resolution to this litigation.
Santa Monica Should Let the Appeals Court Rule on the CVRA Case The Supreme Court’s opinion was highly nuanced in how a plaintiff would be required to prove vote dilution under the CVRA and further asserted that a plaintiff must prove both racially polarized voting and vote dilution in order to prove a violation of the CVRA.
The Supreme Court did not rule “on the ultimate question of whether the City’s at-large voting system is consistent with the CVRA” or declare the plaintiffs the victors, but rather took the opportunity to clarify some of the ambiguities of the law. The City did not lose (or win) the case and neither did the Plaintiffs.
It is up to the Santa Monica City Council to ensure that the “totality of the facts and circumstances” of the City’s current at-large voting system are carefully examined by the Court of Appeals as the Supreme Court remanded the case back to the same panel of appellate judges who issued their now-depublished opinion in favor of the City in July 2020.
In defining how vote dilution must be proven, the Supreme Court also noted that protected class voters should not be made “worse off” by a potential remedy:
“To replace at-large with district elections under a dilution theory, a successful plaintiff must show not merely that the protected class would have a real electoral opportunity in one or more hypothetical districts, but also that the incremental gain in the class’s ability to elect its candidate of choice in such districts would not be offset by a loss of the class’s potential to elect its candidates of choice elsewhere in the locality. (...) As both sides in this proceeding agree, unless the plaintiff can demonstrate a net gain in the protected class’s potential to elect candidates under an alternative system, it has not shown the at-large method of election “impairs” the ability of the protected class to elect its preferred candidates. ”
If Santa Monica were forced to switch to by-district elections, Latino voters would certainly be made worse off.
Councilmember de la Torre Should Recuse Himself from Closed Session Items Regarding the CVRA Case
Further, I wish to urge Councilmember de la Torre to recuse himself from item 3A due to an undeniable conflict of interest.
2 Prior to being elected to the City Council in 2020, Councilmember de la Torre served as the chair of the Pico Neighborhood Association, the co-plaintiff in the CVRA lawsuit filed against the city in 2016, and subsequently amended in 2017. The other co-plaintiff in the lawsuit is the Councilmember’s spouse. Pursuant to these facts, on January 26, 2021, the City Council voted to disqualify the then-newly elected Councilmember de la Torre from participating in or attempting to influence discussions or decisions relating to this litigation due to a finding of a common law conflict of interest.
After the Councilmember filed a lawsuit against the city for declaratory relief, injunctive relief, and alleging a violation of the Brown Act in March 2021, there was a settlement between the City and the Councilmember in June 2022. There was no ultimate final ruling by the judge. In fact, the judge in the conflict of interest case denied issuing summary judgment to both the councilmember and the City.
On June 16th, 2022, in the last filing that the judge issued prior to the settlement on June 20th, 2022, he noted that an issue that had not been addressed was “the elephant in the room”- the City’s contention that the plaintiff’s attorney (Mr. Shenkman) “is a de facto attorney for (Councilmember) de la Torre” and it would be a conflict for him to participate in a vote to potentially award tens of millions of dollars in a settlement to his “de facto attorney.”
Staying the Course is the Fiscally Responsible Choice
The most fiscally responsible decision is to stay the course and allow the case to be re-heard at the Court of Appeals. If the Council were to entertain a potential settlement at this time, there could be a potential financial liability of millions if not tens of millions of dollars at a time when our City’s fiscal health is still recovering. Any additional legal costs from continuing the case are marginal compared to the costs that have already been incurred and if the Court of Appeals’ initial ruling is any indication, the City may have a reasonable chance of potentially recovering at least some of the costs that we have incurred.
It is important to note that Section 14030 of the CVRA is a one-way attorney fee provision, which means that 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. However, in the Court of Appeals’ opinion, the panel of three judges unanimously awarded costs to the City.
If we wish to change the method(s) by which we elect our representatives, that decision should be made through an open, public process and ratified by the voters, and not through an opaque settlement decided in closed session behind closed doors. As we are a charter city, our form of government is for the citizens alone to decide with their voices at the ballot box.
Sincerely,
Natalya Zernitskaya
Natalya Zernitskaya (she/her)
[email protected]