By David M. Greenwald
On Thursday, in a much-anticipated court decision that could have broad reaching implications for places like Davis, the court rejected arguments from both sides.
On the one hand, it rejected plaintiff arguments that racially polarized voting in an at-large system was enough to show a violation of the California Voting Rights Act.
On the other hand, it also rejected arguments from Santa Monica and by extension the Court of Appeal, that required proof it would be possible to draw a minority-majority or near majority district.
The court writes that “the Court of Appeal misconstrued the CVRA. ‘To prevail on a CVRA claim,’ a plaintiff who has established the existence of racially polarized voting in an at-large system need not prove that the protected class would constitute a majority — or, as the City proposes, a near majority — of a hypothetical single-member district.”
Instead, the court ruled that “to establish dilution of a protected class’s ability to elect its preferred candidate under the CVRA, a plaintiff must demonstrate ‘the potential to elect representatives’ under some lawful alternative electoral method.”
The court continues, “One way to demonstrate the class’s potential to elect its preferred candidates would be to show, as the VRA requires, that the class could be ‘sufficiently large and geographically compact to constitute a majority in a single-member district.’”
The court later added, “To establish the dilution element, a plaintiff in a CVRA action must identify ‘a reasonable alternative voting practice” to the existing at-large electoral system that will “serve as the benchmark ‘undiluted’ voting practice.’”
It continued, “The key inquiry in establishing dilution of a protected class’s ability to elect its preferred candidate under the CVRA, therefore, is what percentage of the vote would be required to win — an inquiry that is not short-circuited merely because the protected class may fall short of an absolute majority.”
Courts should likewise keep in mind that the inquiry at the liability stage “is simply ‘to prove that a solution is possible, and not necessarily to present the final solution to the problem.’”
The court noted, “We agree with the Court of Appeal that a plaintiff cannot prove dilution of its ability to elect its preferred candidate under the CVRA by showing that its voting share would increase 15-fold, from 0.1 percent to 1.5 percent, in a hypothetical district.”
In that circumstance, as the Court of Appeal explained, “[t]here are simply too few voters . . . to be numerically effective in an environment of race-based voting.”
But the court added, “But it does not follow that a majority (or near-majority) requirement should be judicially engrafted onto the CVRA.”
On the other hand, “The dilution element also ensures the protected class is not made worse off. 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.”
Meanwhile the court has remanded “the matter to the Court of Appeal to decide in the first instance whether, under the correct legal standard, plaintiffs have established that at-large elections dilute their ability to elect their preferred candidate; whether plaintiffs have demonstrated the existence of racially polarized voting; and any of the other unresolved issues in the City’s appeal.”
As UC Davis Law Professor Chris Elmendorf points out in a tweet, “Despite all the talk in the opinion about remedies, including ‘alternative’ remedies like at-large elections w/proportional voting rules, a city that wants to avoid CVRA liability just has (to) adopt district elect(ions).”
He added, “It doesn’t matter whether the districted elections make minority voters better off or worse off, b/c you can’t challenge SMD elections under the CVRA.”
Elmendorf also added, “Here’s hoping the release of this long-awaited opinion motivates the Legislature to revisit the CVRA’s immunity for districted elections. ”