Pico Neighborhood Association v. City of Santa Monica

A neighborhood organization and a resident sued the City

of Santa Monica, which uses at-large voting to elect its City

Council. The plaintiffs claimed this system discriminated against

Latinos, which is the term all parties use. After a bench trial, the

trial court agreed and ordered the City to switch to district-based

voting. We reverse and enter judgment for the City because the

City violated neither the California Voting Rights Act nor the

Constitution.

I

We describe the setting.

A

At the time of trial, about 90,000 people lived in the City of

Santa Monica, which is the defendant and appellant in this case

and which we call the City. Latinos then comprised about 16

3

percent of the City’s total population and 13.64 percent of the

City’s citizen-voting-age population.

The plaintiffs and respondents are Pico Neighborhood

Association and Maria Loya.

Pico Neighborhood Association is an organization dedicated

to improving conditions and advancing the interests of the Santa

Monica neighborhood near Pico Boulevard. Residents formed the

association in 1979 to help neighbors participate fully in the

democratic process and to ensure a safe and secure community.

Members advocate for neighborhood interests before the Santa

Monica City Council.

Maria Loya is a Pico neighborhood resident and a Pico

Neighborhood Association board member. Loya ran for the Santa

Monica City Council in 2004 and lost. Loya’s husband, Oscar de

la Torre, is a leader of the Pico Neighborhood Association. Oscar

de la Torre won Santa Monica-Malibu Unified School District

Board races in 2002, 2006, 2010, 2014, and apparently in 2018 as

well. He ran for the Santa Monica City Council in 2016 and lost.

We refer to the respondents collectively as Pico unless

otherwise specified.

B

This case concerns two alternative election methods: atlarge versus district voting. At-large voting is city-wide. District

voting is also called ward voting: “district” and “ward” are

synonyms. District voting would divide the City into the number

of districts (or wards) corresponding to the number of council

members.

The City now uses at-large voting to elect its seven-member

City Council. The City holds elections every two years. National

presidential elections are every four years. In those years, four

4

council seats are up for election: each voter can cast four votes.

In between national presidential contests are elections for

Governor. For elections held those years, voters each get three

votes for the three council seats at stake. Depending on whether

there are three or four seats open, the top three or four

candidates receiving the most votes win. Santa Monica also uses

at-large voting for its School, Rent Control, and College Board

elections, but this suit targets only City Council elections.

District voting differs from at-large voting. In district

voting, each voter casts one vote and votes to select only one

candidate to represent that district.

C

Over the years the City has debated and used both at-large

and district voting. We review this history, which has six stages.

We pay particular attention to 1946 and 1992: the years in

controversy, which are stages three and five. But first we begin

at the beginning, in 1906.

1

A 1906 charter divided the City into seven districts, called

wards. Voters in each ward voted for one council member to

represent the ward.

2

In 1914, the City switched from wards to at-large elections.

Voters in this new system elected three commissioners at large.

Each commissioner occupied a different and specialized post:

public safety, public works, and finance. The City held separate

elections for each post. Voters could cast only one vote for one

candidate in each election.

5

3

In 1946, the City changed its at-large voting into the

system it uses today. The events of 1946 are crucial in this

lawsuit and bear careful attention.

How can we tell what happened in 1946? What are the

sources of evidence? Apart from the proposed charter and

documents with voting results, the trial court considered only one

direct source of evidence about events in 1946. This direct source

was 1946 Santa Monica newspaper excerpts. In other words, no

trial witnesses testified about what they saw or heard in 1946.

The 1946 newspaper excerpts reveal the following.

In a nutshell, the City in 1946 embarked upon charter

reform. A deliberative body called the Board of Freeholders

debated and crafted a proposed new charter. Supporters and

opponents campaigned about it, and then voters overwhelmingly

approved it.

We present the events of 1946 in more detail.

Voters elected a 15-member Board of Freeholders charged

with proposing a new city charter. The Freeholders issued their

charter proposal on August 15, 1946. They proposed the City

continue at-large elections but expand the number of council

members from three to seven. They proposed eliminating the

three specialized posts in favor of seven equal city council

members, each with a general and comprehensive portfolio.

Voters would elect three or four council members, depending on

the year, and correspondingly would cast up to three or four

votes.

The new charter proposal would also create the staff office

of city manager. For this reason, news articles in 1946

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sometimes called the Freeholders’ proposal a “council-manager”

form of government.

The record gives us limited demographic information about

the City in 1946. A table lists the total 1946 population as

67,473, with “White or Anglo” as 64,415. The other categories are

“Black,” “Asian,” and “Latino,” but there is no breakdown within

these columns until later years. Today, there is no majority

racial or ethnic group in California; statewide, every group is a

minority. (Sanchez v. City of Modesto (2006) 145 Cal.App.4th

660, 666 (Sanchez).) The recent situation has been different in

Santa Monica; in 2010, the white or anglo population was about

70 percent of the City’s total. The situation was also different in

Santa Monica in 1946, when the white or anglo population

constituted about 95.5 percent. We refer to 1946 Santa Monicans

in the 4.5 percent group as minorities.

All minority leaders in our record supported the proposed

change in 1946. None opposed it. This fact is of dominating

significance in this lawsuit about race discrimination, and so we

elaborate.

Jean Leslie Cornett was Secretary to the Board of

Freeholders and signed an advertisement supporting the charter.

Cornett met with members of the National Association for the

Advancement of Colored People (NAACP) and explained that the

Freeholders’ charter proposal would increase the opportunity for

minority group representation by two and a half because it

expanded the City Council from three to seven members.

Freeholder Vivian Wilken was a member of the NAACP

and an organizer in the Santa Monica Interracial Progress

Committee, which worked toward “[r]espect for human dignity

through common appreciation of the worth of each individual

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regardless of racial origin.” Wilken also signed on to an

advertisement supporting the charter.

Seven members of the Committee for Interracial Progress

endorsed the charter amendment in newspaper advertisements.

Among them was Reverend W.P. Carter, the preeminent AfricanAmerican civil rights leader in Santa Monica in the 1940s, 1950s,

and 1960s. Reverend Carter was a past president of the NAACP

in Santa Monica.

Blanche Carter, Reverend Carter’s wife and the first

African-American Santa Monica school board member, signed an

advertisement supporting the charter. So did other AfricanAmerican, Latino, and Jewish community leaders.

No member of the Committee for Interracial Progress

opposed the charter. No minority leaders, groups, or residents

opposed the charter.

By a vote of 15,132 to 6,512, voters approved the charter on

November 5, 1946.

4

In 1975, voters rejected Proposition 3, which, among other

items, proposed the City switch back to district voting.

5

The year 1992 was another focus of attention in this case.

We review 1992 events in detail.

As with 1946, the direct evidence about 1992 came strictly

from historical records. There were only two direct sources of

evidence: a written commission report and a videotaped City

Council meeting where the report was discussed.

One fact witness was present at the 1992 meeting. This

witness was former City Councilmember Antonio Vazquez.

Vazquez was on the City Council in 1992 and was one of the

8

seven council members who voted on the decision the trial court

condemned. Vazquez testified at trial by deposition. But as far

as the record shows, Pico never asked Vazquez whether the City’s

decisionmaking in 1992 was for the purpose of discriminating

against Latinos.

So the lone eyewitness did not weigh in on the crucial equal

protection issue because Pico refrained from asking him about it.

As a result, only two items of evidence directly show what

happened in 1992. These two direct sources are the report and

the videotape. First we give an overview of what they reveal.

Then we delve into detail.

The overview is the City did not change its electoral system

in 1992. A special study commission concluded the status quo

should change but could not achieve consensus on what the

change should be, and so recommended inaction and further

research. The City Council debated the matter at length and

could not agree on anything except more study. In short, 1992

was a year of dissatisfaction, study, debate, and no change.

Now we plunge into more detail. We begin with the work of

the Charter Review Commission, and then describe the City

Council meeting where the Council discussed this Commission’s

report.

a

We describe the special study commission and its work.

The City Council appointed the 15-member Charter Review

Commission to analyze a set of questions about the city charter,

including alternatives to the at-large system the City adopted in

1946.

The Commission issued its report in June 1992. The report

is more than 90 pages and it covered more than a dozen topics,

9

including term limits, selection of the city attorney, competitive

bidding, official bonds, council meeting protocols, and so forth.

The first and largest topic in the report was the pertinent

one here: the at-large election method for the City Council. The

Commission comprehensively explored five voting options: atlarge voting, district voting, mixed voting systems, and two types

of proportional representation: single transferable votes and

cumulative voting.

The Commission emphasized its dominating goal of racial

justice. “The central issue, in the Commission’s view, is not one

of having Council members who are ethnic, but of empowering

ethnic communities to choose Council members, and on this

criterion, the at-large system is felt to be inadequate.” The

Commission sought to “distribute empowerment more broadly in

Santa Monica, particularly to ethnic groups . . . .” The

Commission also wrote district voting was not “clearly the most

empowering option to insure minority influence in Santa

Monica’s political life.” It decried “the consequence of

disempowering ethnic minorities.” The Commission underlined

the virtue of bringing “Latinos much closer to placing their choice

on City Council.”

The Commission recounted its efforts to obtain enlightened

perspectives on the issues. It met with Richard Fajardo, a former

attorney with the Mexican American Legal Defense and

Educational Fund (MALDEF), as well as with members of the

NAACP and Citizens United to Reform Elections (CURE), which

was Santa Monica’s election reform advocacy group. Three

Commissioners were members of CURE.

The Commission consulted scholarship about electoral

systems. “A substantial part of this material [focused] on ethnic

10

representation questions.” A historian who later served as Pico’s

expert wrote a report to the Commission stating his view that the

City adopted its at-large system with racially discriminatory

intent in 1946.

The Commission was dissatisfied with the at-large status

quo but could not agree on what to do about it. After reviewing

the options, the Commission advised the City Council to delay

action and to gather more information.

A bare Commission majority favored some type of

proportional voting but recognized these systems were unusual,

complex, and largely untested. Apparently the City would have

to write software from scratch. As alternatives to proportional

voting, the Commission recommended that—if the City Council

decided not to propose a proportional method to the voters—both

a district system and a hybrid district/at-large system should be

“seriously considered.”

Five of the 15 Commissioners favored district voting as

their first choice.

Most Commissioners reported “that we were making our

decision with less information than we would have liked to have

had before us . . . .” The Commission “strongly” suggested further

study, “utilizing experts in this area as needed.”

b

The City Council met to consider the Commission’s report

on July 7, 1992. This public meeting began at 7:40 p.m. and

ended at 2:00 a.m. Our record contains a video of the entire

meeting.

The Council consisted of Mayor Ken Genser, Mayor Pro

Tempore Judy Abdo, and members Robert T. Holbrook, Herbert

Katz, Kelly Olsen, Antonio Vazquez, and Dennis Zane.

11

Commission chair Nancy Greenstein presented the report.

Other Charter Review Commissioners and members of the public

commented about different election systems and then responded

to the City Council’s questions, which were many and searching.

Greenstein noted the election method question was the

most difficult for the Commission. She said the majority of

Commissioners recommended the City move away from the atlarge system, but Commissioners were unsure about district

voting as a replacement system. While a majority recommended

the proportional method, this method admittedly was complex

and had drawbacks. The Commissioners did not have enough

time to study it. Only five of the 15 Commissioners favored

district voting. Ultimately, the Commission was “not giving [the

Council] a definitive yes on any system,” but was recommending

either staff or a small committee continue to study the

proportional method and to provide more information about the

proper technique for counting votes.

Commissioner Chris Harding was in the Commission’s

minority and supported districting. Harding urged the City

Council to “do a thorough investigation and gather further

information and certainly open this up for more public

discussion.” He did not “expect [Council] to make a decision

tonight about this” and encouraged the Council to consider the

lack of diversity among past mayors and council members.

George Hickey, another Commissioner, urged the Council

to call on members of the public in its deliberations, especially

those who served on the Commission.

Some speakers favored districts. They argued the City had

never elected a council member from the Pico neighborhood,

which had the highest African-American and Latino population

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concentration. They wanted neighborhood-specific

representatives.

Other speakers opposed a district system out of a desire to

have all City Council members represent all residents.

Council members actively questioned speakers and

discussed the issues.

For instance, Councilmember Holbrook asked Commission

chair Greenstein if the Commission explored whether a hybrid

district/at-large system would provide any additional advantage

for underrepresented people to win elections.

Greenstein responded the Commissioners were not

particularly interested in the hybrid system. Some thought the

hybrid system would corrupt the district system and others

preferred the proportional system. Some also thought the hybrid

system still would dilute minority representation by making an

intentionally-formed minority district larger. Councilmember

Zane responded the hybrid system would only do so if the City

did not expand the number of districts.

Councilmember Katz was concerned a district system

would lead to “total provincialism” and believed each council

member should represent the city as a whole.

Katz asked several speakers how they felt about a hybrid

system’s ability to balance the needs of individual neighborhoods

with those of the City while intentionally forming districts to

empower minorities. Katz emphasized the City would have to

pick the districts, because having an all-white district would not

help minorities. Katz gave an example of having neighborhoods

like Pico become districts while keeping other seats at-large, and

asked whether such a system would increase minority

13

representation and still keep the Council focused on overall City

politics.

Richard Fajardo answered Katz. Fajardo was a former

MALDEF attorney who had worked on voting rights cases and

had advised the Commission. Fajardo told Katz it would depend

on whether the at-large representatives could still dilute the

power of the district representatives. Fajardo said the hybrid

system had been used as a compromise in a number of voting

rights cases.

Councilmember Holbrook expressed concerns about how

districting would work if minority communities were spread out

in their geographically small city, making it difficult to carve out

districts.

Councilmember Vazquez favored districts, but noted the

report raised a troubling prospect: a district system could pit

minorities against each other.

Councilmember Zane spoke as an advocate of affordable

housing. Zane asked Fajardo about the effect of district voting on

the prospects for affordable housing projects. Zane worried every

representative in a district voting system would take a Not-InMy-Backyard (NIMBY) view of low-cost housing projects,

meaning every representative would oppose these projects and

thus doom them. We quote Zane’s lengthy question verbatim for

reasons that later will be apparent. We italicize the one sentence

that emerged as an issue.

“This is a question about districts that goes less to the sort

of legal representational issues, more to some kind of policy

concerns that I want to hear if you have had any experience or

reflection on. The concern I have about districts sort of somewhat

mirroring the parochial kinds of concerns that Mr. Katz alluded

14

to has to do with, issues like affordable housing and issues that

are not simply the representational issues of the poor, for

example, and historically discriminated-against minorities but

are the sort of substantive needs. One of the experiences of

people I have been acquainted with, who have made a transition

from at-large systems to district systems, is that it becomes very

difficult to get affordable housing projects passed. And the

reason is, each council member has, for one thing, become

something of a case manager of services rather than a policy

maker. Two, each council member feels more vulnerable to any

neighborhood protest, and affordable housing frequently, if not

always, brings some level of neighborhood protest. In some of the

communities I am aware of, they simply don’t get affordable

housing projects approved any more. Because every council

member is afraid of them. And so, you gain the representation

but you lose the housing. Now, do you have experience with

that?”

Fajardo agreed “that has been an issue and it has been a

problem” because “even within the Latino community” a debate

between homeowners and renters would have to continue. But

Fajardo’s concern was the inability of minority communities to

elect their preferred candidates to boards and commissions.

Zane replied “I just want us to make sure we, you know,

don’t try to solve our representational issues at the expense of

our, the needs of the poor or things like affordable housing. We

need a system we can choose both.”

Zane returned to his affordable-housing theme about 45

minutes later, in response to Doug Willis’s public comments.

Willis, who was African-American and one of the 15 members of

the Charter Revision Commission, said he belonged to CURE and

15

represented the Santa Monica-Venice chapter of the NAACP.

Willis said he lived in the Pico neighborhood and supported

district voting.

Zane responded to Willis. Zane acknowledged district

voting has some advantages, but asked Willis if he, in turn,

would acknowledge some of the disadvantages of district voting.

Zane repeated his concern about whether district voting would

end affordable housing projects by making district

representatives frightened of the neighborhood protests that

usually accompanied such proposals.

Willis replied the Pico area had the most affordable

housing in the City.

Zane said “I’m not trying to identify a particular district.”

Rather, Zane contrasted Santa Monica’s willingness to

approve affordable housing projects with communities that

“proclaim similar progressive philosophies about housing” but

cannot get affordable housing approved. Zane said the way these

other places explained it was that the district council members

are “freaked out” by every neighborhood uprising on any issue—

not just affordable housing, but also “social service centers” and

the like. “A small district makes those protesters look very

powerful.” Zane asked Willis, “how do we combat that” if we

adopt district voting?

Willis understood Zane’s point but said “I don’t tend to

agree” and said no more, thus ending their exchange.

After hours of further discussion, the council members

voted four to three not to put a district election system on the

1992 ballot. They did agree, unanimously, to gather more

information about the hybrid system and the single-member

district system.

16

The record evidence was that, thereafter, the City’s staff

did provide the City Council with further information about

hybrid voting, at-large voting, and district voting.

In this way, Santa Monica did not change from at-large

voting in 1992.

6

In 2002, voters rejected ballot measure HH, which included

a proposal to switch back to district elections.

7

Because of its history since 1946, Santa Monica now has an

at-large City Council composed of seven council members. At the

time of trial, two of these council members self-identified as

Latinos: Antonio Vazquez (later replaced by Ana Maria Jara)

and Gleam Davis. Another council member named Terry O’Day

lived in the Pico neighborhood. During trial, then, the percentage

of self-identified Latinos on the City Council was about 29

percent, which is about twice the percentage of voting-age

Latinos in Santa Monica.

D

Now we turn to this lawsuit. Its pertinent procedural

history began with Pico’s operative complaint of February 23,

2017, alleging the City’s at-large election system violated the

California Voting Rights Act and the California Constitution.

Pico alleged those who adopted and maintained the at-large

system did so intentionally to dilute Latino voting power and to

deny Latinos effective political participation in City Council

elections. Pico also alleged the at-large system prevented Latino

residents from electing candidates of their choice or influencing

election outcomes.

17

Seven expert witnesses and nine fact witnesses testified

during a bench trial beginning August 1, 2018, and ending

September 13, 2018. There were 24 days of testimony. Trial

days usually started between 9:30 and 10:30 a.m. and ended

between 3:00 and 4:00 p.m., with a 90-minute lunch break,

meaning that a “trial day” ranged between three and five hours.

The trial court handled other cases for the balance of each day.

The trial devoted more time to experts than to fact

witnesses. Pico’s main expert, a historian, testified on 10 of the

24 days, for six full days and four partial days. Another Pico

expert and two City experts each testified on three days, with one

of them testifying for three full days.

Fact witnesses testified more briefly. Only one witness was

present at the 1992 meeting and could testify about what he

witnessed. That was former Councilmember Antonio Vazquez

but, as noted above, Pico avoided asking Vazquez whether the

City Council’s 1992 vote had been for the purpose of

discriminating against Latinos. Nor did Pico seek to present

testimony from Richard Fajardo, Doug Willis, or anyone else

present when Zane spoke words that decades later Pico would

contend were racist. So no eyewitnesses testified from personal

knowledge gained in 1992 about the purpose of the City’s actions

that year.

Rather the factual testimony was about other topics.

Plaintiff Loya testified for two partial days, as did her husband

Oscar de la Torre. Each of the other fact witnesses testified for

one or two days.

On November 8, 2018, the trial court issued a tentative

order stating the court was ruling in Pico’s favor on both causes

of action. This order did not provide legal reasoning, but rather

18

set a remedies hearing and a briefing schedule. In response to

the City’s request for a statement of decision, the court ordered

Pico to prepare one.

On December 12, 2018, the court prohibited the City from

holding any at-large City Council elections and ordered future

elections to be district-based elections, according to an attached

map.

Pico asked the trial court to clarify this order because,

among other reasons, the court’s map defined only one district

rather than the seven necessary for the City’s seven-member

council to be elected through district voting. At a hearing, the

trial court stated: “I am thinking maybe it makes sense to go

with the seven districts [drawn by Pico’s expert]; order the special

elections; run with your appeal; and we will see where we end

up.”

The court ordered Pico to include seven districts in its

proposed statement of decision and proposed judgment, and

again stated, “We will let it run and see where it goes in the court

of appeal.”

On January 3, 2019, Pico filed its proposed statement of

decision and proposed judgment. The City filed objections,

including some 200 objections to the proposed statement of

decision. The court sustained eight objections and overruled the

rest. The trial court’s statement of decision and judgment thus

basically mirrored Pico’s proposals. This ruling, issued on

February 13, 2019, was Pico had proved the City violated the

California Voting Rights Act as well as the equal protection

clause of the California Constitution.

Using data provided by a historian, the trial court found “a

consistent pattern of racially-polarized voting” in the City’s at-

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large elections. The historian analyzed seven City Council

elections between 1994 and 2016 involving at least one Spanishsurnamed candidate, and estimated support from Latino voters

and support from non-Hispanic white voters. The historian

presented analyses showing a statistically significant difference

in how non-Hispanic white voters and Latino voters voted in six

of the seven elections. In all but one of those six elections, Latino

voters cohesively supported the Spanish-surnamed candidates.

According to the historian, “in all but one of those six elections, a

Latino candidate received the most Latino votes, often by a large

margin. And in all but one of those six elections, the Latino

candidate most favored by Latino voters lost, making the racially

polarized voting legally significant.”

The trial court rejected the City’s argument the candidate’s

race was irrelevant under the California Voting Rights Act. The

court ruled it would consider only Spanish-surnamed candidates

to be Latino candidates. Although City Councilmember Gleam

Davis testified she “considers herself Latina because her

biological father was of Hispanic descent,” the court did not count

Davis as Latina, because not enough people knew about Davis’s

ethnicity.

The trial court found several qualitative factors supported

its finding of legally significant racially polarized voting,

including the City’s history of discrimination against Latinos.

At trial, the City argued the law required Pico to show vote

dilution—not simply racially polarized voting—to prove the atlarge system violated the California Voting Rights Act. The trial

court acknowledged the City’s argument that dilution was a

separate liability element and held that, assuming dilution was a

separate element, the evidence still showed the system diluted

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Latino votes. The court noted “it is impossible to predict with

certainty the results of future elections” but found the evidence

showed “some alternative method of election would enhance

Latino voting power.”

The trial court also found the at-large system violated the

California Constitution’s equal protection clause because the City

adopted the system with discriminatory intent in 1946, and

maintained it with discriminatory intent in 1992. For both years,

the trial court analyzed five factors from Arlington Heights v.

Metropolitan Housing Corp. (1977) 429 U.S. 252, 266–268 to

determine whether the City adopted or maintained the at-large

system with discriminatory purpose: the impact, the historical

background, the specific sequence of events leading to the

decision, departures from the normal procedural sequence, and

legislative history.

The trial court acknowledged minority leaders in 1946

favored the Freeholders’ proposal and none publicly opposed it.

The court nonetheless concluded “all understood that at-large

elections would diminish minorities’ influence on elections.” The

court found “the evidence of discriminatory intent outweighs the

contrary evidence.”

Analyzing the same factors, the trial court concluded the

City in 1992 deliberately decided “to maintain the existing atlarge election structure because of, and not merely despite, the

at-large system’s impact on Santa Monica’s minority population.”

The trial court based its finding primarily on the Charter Review

Commission’s report, the July 7, 1992 City Council meeting, and

Councilmember Zane’s statements about affordable housing at

the meeting.

21

Having basically adopted Pico’s statement of decision, the

court likewise adopted the district map drawn by a Pico expert as

the appropriate remedy. The court found it would “likely be

effective, improving Latinos’ ability to elect their preferred

candidate or influence the outcome of such an election.” The trial

court ordered the City to implement district-based elections for

its City Council in accord with the seven-district map presented

at trial.

The City appealed. It also asked the trial court to confirm

the final judgment operated as a mandatory injunction that the

appeal automatically would stay, or in the alternative to stay a

portion of the judgment pending appeal. The trial court denied

both requests.

The City petitioned the Court of Appeal for a writ of

supersedeas, requesting an immediate stay. We granted the

petition.

Based on its trial victory, Pico has asked the trial court to

order the City to pay it about $22 million in attorney fees and

costs. The trial court set a future hearing on this request.

II

This case presents two legal issues. The first is whether

the City violated a statute. The second is whether it

transgressed the California Constitution.

This section concerns the statute. The next section, section

III, tackles the constitutional issue.

To summarize our statutory analysis, the trial court

misinterpreted the statute. Properly interpreted, the statute

imposes a dilution element Pico failed to prove. The City’s

actions complied with the statute.

22

We independently review issues of statutory interpretation.

(Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1247.)

The next section sketches the background for the statute,

which concerns at-large and district voting. The following

sections describe and apply the statute.

A

As context for our statutory analysis, we sketch the

background against which this statute operates.

People debate whether at-large voting or district (or

“ward”) voting is the superior form of democracy. Opinions vary.

Some of the briefing in this case speaks to this point.

Amicus League of California Cities is an association of 478 cities

in California. Joining it in this brief is the California Special

Districts Association, which consists of over 900 special districts

throughout California. The special districts provide Californians

with services relating to police, fire, roads, harbors, waste,

sewage, mosquitoes, libraries, parks, and similar matters.

This amicus brief presents the perspectives of these 1,000

plus California jurisdictions. This brief is not a source of facts

from which a court could make factual findings. Lawyers wrote

this brief, and like any brief, it is merely legal advocacy on behalf

of those with an interest in the outcome of this case.

The amicus cities and special districts all hold elections.

These entities take different views about at-large voting versus

district voting. They recognize at-large voting can dilute

minority voting power in certain circumstances, and that, when

this occurs, it is bad. They argue, nonetheless, that legitimate

debate remains over the merits of the two methods.

The amicus brief claims some member district and city

officials support at-large elections. The main idea is at-large

23

voting elects representatives devoted to the welfare of the whole.

Supporters say the district alternative leads to ward politics.

“Ward politics” is a term with a possibly pejorative

connotation. (See, e.g., Plunkitt, Plunkitt of Tammany Hall

(Project Gutenberg 2013) ch. 6 & 23 [talks given by George

Washington Plunkitt around 1905].)

Some abuses of ward politics are a matter of record here.

Santa Monica’s Charter Revision Commission noted ward

elections—also called district elections—were the rule in U.S.

cities at the end of the 19th century. Widespread graft and

corruption in city politics then led to reforming upheaval in

municipal governance and swept away ward and district

elections.

The record in this case also shows that, by 1989, at-large

elections had become the norm in California. Among California

cities, for instance, 205 cities then used at-large voting while only

15 cities preferred district voting. In 2014, most local governance

bodies in California were elected on an at-large basis. (Jauregui

v. City of Palmdale (2014) 226 Cal.App.4th 781, 788 (Jauregui).)

Another aspect of district voting is its requirement of

drawing district lines, which in turn poses the issue of

gerrymandering. (See Reynolds v. Sims (1964) 377 U.S. 533,

578–579.)

Yet, according to amici League and the special districts,

today some among their members take a contrary view and favor

district voting as the more democratic approach.

Officials who favor district voting say they believe their

connections to distinct communities allow them to represent

those communities better by responding more attentively to local

and particular interests.

24

We also note that, for many decades, esteemed civil rights

leaders have observed shifts from ward to at-large elections can

deprive minority voters of fair and effective procedures for

electing candidates of their choice. (E.g., Days & Guinier,

Enforcement of Section 5 of the Voting Rights Act in Minority

Vote Dilution (Davidson edit., 1984) p. 169.)

Amici League and special districts assert their

organizations do not favor one system or the other. Rather they

hold there are legitimate arguments for each system. Reasonable

people can differ on the choice between district and at-large

voting.

B

The Legislature weighed in on the debate about district

voting by passing the California Voting Rights Act, which took

effect in 2003. The Act consists of eight sections of the Elections

Code: sections 14025 to 14032. Henceforth we refer to this

statute as the Act. All further statutory references are to the

Elections Code unless otherwise indicated.

The Act created a private right of action against political

subdivisions of the state of California.

This case requires us to construe the Act. We begin with

its language and structure in our quest to ascertain its purpose.

Our central goal is to effectuate that purpose. We must interpret

the statute’s words in context, keeping in mind the statutory

purpose. We start by considering the ordinary meaning of the

statutory language, the language of related provisions, and the

structure of the statutory scheme. If the language of a statutory

provision remains unclear after this analysis, we may explore

extrinsic sources like legislative history. (Scholes v. Lambirth

Trucking Co. (2020) 8 Cal.5th 1094, 1102–1103 (Scholes).) We

25

construe the statutory words in context so we can harmonize

individual sections by considering the provision at issue in the

context of the statutory framework as a whole. (Kim v. Reins

Internat. Cal., Inc. (2020) 9 Cal.5th 73, 83.)

The Act requires plaintiffs to satisfy five elements to make

out a claim:

1. Protected class;

2. Resident;

3. At-large voting;

4. Racially polarized voting; and

5. Dilution.

Protected class. Element one requires plaintiffs to prove

membership in a protected class. (§§ 14032 [stating this

element], 14026, subd. (d) [defining protected class].) A protected

class is a class of voters who are members of a race, color, or

language minority group, as defined in the federal Voting Rights

Act (52 U.S.C. § 10301 et seq.). (§ 14026, subd. (d).)

Resident. Element two requires plaintiffs to prove they

reside in the political subdivision they are suing. (§§ 14032

[stating this element], 14026, subd. (c) [defining political

subdivision].) A political subdivision is a geographic area of

representation created for the provision of government services,

and includes general law cities and charter cities. (§ 14026, subd.

(c).)

At-large voting. Element three requires plaintiffs to prove

the political subdivision used an at-large method of electing

members to the governing body of the political subdivision. (§§

14027 [stating this element], 14026, subd. (a) [defining at-large

method of election].) At-large voting includes any of the following

election methods: (1) one in which voters of the entire

26

jurisdiction elect members to the governing body; (2) one in which

candidates must reside in given areas of the jurisdiction and

voters of the entire jurisdiction elect members to the governing

body; and (3) one that combines at-large elections with districtbased elections. (§ 14026, subd. (a).)

Racially polarized voting. Element four requires plaintiffs

to prove racially polarized voting occurred in the political

subdivision’s elections. (§§ 14028 [stating this element], 14026,

subd. (e) [defining racially polarized voting].) Racially polarized

voting is voting in which a protected class’s electoral preferences

are different from those of the rest of the electorate in a legally

significant way. (§ 14026, subd. (e).)

Dilution. Element five requires plaintiffs to prove the

political subdivision’s at-large election method impaired “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 or the abridgment of the rights of voters” who belong to a

protected class. (§ 14027, italics added.)

Section 14030 is a one-way attorney fee provision: 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. (See

generally Rey v. Madera Unified School Dist. (2012) 203

Cal.App.4th 1223, 1235–1245.)

The Act defines only five of its statutory terms. (§ 14026,

subds. (a)–(e).) The Legislature left a number of statutory terms

undefined, as we explain below.

27

The City does not appear to contest that Pico has satisfied

elements one, two, or three, but it does take issue with the trial

court’s finding of racially polarized voting and dilution.

C

This case turns on element five, which is the dilution

element. We thus do not consider element four.

As we have just recounted, the dilution element required

Pico to prove the City’s at-large method impaired Latinos’ ability

to elect candidates of their choice or to influence the outcome of

an election as a result of the dilution or the abridgment of Latino

voting rights. (§ 14027.)

We focus on the word dilution, as does Pico. In defending

its trial court victory, Pico in its brief to us uses a form of the

word dilution more than 40 times. It uses a form of the word

abridgement only once, and then only in passing. We focus on

the issue Pico has posed.

The Legislature decided not to define the word “dilution.”

We must decipher what the Legislature meant this word to mean.

We approach this interpretative work with the standard tools of

statutory construction. We start by considering the ordinary

meaning of the statutory language. (Scholes, supra, 8 Cal.5th at

p. 1103.)

Dilution is a familiar word with a plain meaning. Dilution

is the act of making something weaker by mixing in something

else. (The Random House Dict. of the English Language (2d ed.

unabridged 1987) p. 554 [“to reduce the strength, force, or

efficiency of by admixture”].)

Pouring a quart of water into a quart of milk, for instance,

dilutes the milk to half strength. Diluting the milk weakens its

nutritional value.

28

This familiar concept applies to electoral results.

Many techniques can manipulate a voting system to dilute

the ability of particular groups to achieve electoral success. Both

district voting and at-large voting can be mechanisms of mischief.

In a district voting system, for instance, one can draw

district lines to divide a group’s supporters among multiple

districts so they fall short of a majority in each district.

That is “cracking.” (Gill v. Whitford (2018) ___ U.S. ___,

___ [138 S.Ct. 1916, 1923–1924] (Gill); cf. Garza v. County of Los

Angeles (9th Cir. 1990) 918 F.2d 763, 769 [county intentionally

fragmented Latino population to dilute that vote].)

Or one can draw district lines to concentrate a group into a

few districts so the group wins there by overwhelming margins

but achieves less overall success than if different line-drawing

spread the group more evenly through a larger number of

districts.

That is “packing.” (Gill, supra, 138 S.Ct. at pp. 1923–1924;

cf. Georgia v. Ashcroft (2003) 539 U.S. 461, 470, 481, 486–488

[explaining packing and unpacking].)

At-large elections are another possible method for diluting

voting power and curbing electoral success, under particular

conditions. At-large voting is not a per se violation of minority

voting rights. (Thornburg v. Gingles (1986) 478 U.S. 30, 48.)

This common system can serve legitimate ends. But under

certain circumstances it is possible to weaken a group’s electoral

success by using at-large voting instead of district voting.

A hypothetical example illustrates the point.

In this hypothetical we speak generally of groups, because

the groups in electoral cases often are political parties rather

than expressly racial or ethnic groups. This statute is drafted

29

specifically in terms of racial, color, and language groups, but the

mechanisms of voting dilution extend beyond these categories.

For our hypothetical, assume everyone votes strictly

according to group membership and, if possible, only for

candidates who are members of their own group. Further

assume one group has voting power of only 10 percent in a given

city but, within that city, the group’s voting power in

neighborhood X is 60 percent. If neighborhood X were a voting

district, the group could elect one of its own members as a district

representative. The 60 percent neighborhood voting power would

guarantee success. But now switch to at-large voting. This

switch defeats the group’s ability to elect anyone from its own

ranks, because 10 percent is not enough to win. Changing from

district to at-large voting under these circumstances would

weaken that group’s electoral success: the change would deny it

the ability it previously had to elect a member of its own group.

This hypothetical example shows, with district voting, the

group could elect one representative belonging to its group. But

with at-large voting, the group could not elect anyone from its

own group. Going from one representative to zero would dilute

this group’s ability to elect candidates from its group. Under

these circumstances, an at-large system has diluted the group’s

voting power in a politically damaging way: the group lost the

power to elect a representative of its choice.

The possibility of dilution does not mean it is generally a

negative outcome when voters in a minority lose an election.

Generally, democracy is majority rule. Under ideal conditions in

a democracy, the majority of voters tends to win and the minority

of voters tends to lose. When candidates or causes lose elections

30

simply because too few voters support them, that is not

democracy failing. That is democracy working.

The dilution element thus must do the work of

distinguishing between the general case, when majority rule is

proper, and the special case, when some mechanism has

improperly diluted minority voting power.

D

The City correctly notes Pico offered no valid proof of

dilution.

As we have observed, the dilution element required Pico to

prove the City’s at-large method impaired Latinos’ ability to elect

candidates of their choice or to influence the outcome of an

election as a result of the dilution of Latino voting rights. (§

14027.)

One cannot speak of the dilution of the value of a vote until

one first defines a standard as to what a vote should be worth.

Justice Frankfurter made this point in his long and bitter dissent

from the landmark decision in Baker v. Carr (1962) 369 U.S. 186,

300 (dis. opn. of Frankfurter, J.). Frankfurter thought his point

was a reason to reject that decision, but the case law in its wake

accepted his wisdom and built it into a standard litigation

practice. (E.g., Reno v. Bossier Parish School Bd. (1997) 520 U.S.

471, 480 [plaintiffs must postulate an alternative voting practice

to serve as the benchmark undiluted voting practice, because the

concept of vote dilution necessitates the existence of an undiluted

practice against which the fact of dilution may be measured].)

Pico agreed it was its burden to postulate a reasonable

alternative voting practice to serve as the undiluted benchmark.

Pico proposed a district system that, for one district within the

City, would have 30 percent Latino voting power, as compared to

31

the 14 percent city-wide voting power Latinos hold in at-large

elections.

Pico’s showing was insufficient. Pico failed to prove the

City’s at-large system diluted the votes of Latinos. Assuming

race-based voting, 30 percent is not enough to win a majority and

to elect someone to the City Council, even in a district system.

There was no dilution because the result with one voting system

is the same as the result with the other: no representation.

Pico thus failed to show the at-large system was the reason

Latinos allegedly have had trouble getting elected to the City

Council. The reason for the asserted lack of electoral success in

Santa Monica would appear to be that there are too few Latinos

to muster a majority, no matter how the City might slice itself

into districts or wards. At-large voting is not to blame. Small

numbers are.

Perhaps the same holds true for other minorities in Santa

Monica. Pico’s briefing, however, gives us little data about other

groups and their electoral histories in Santa Monica.

In passing, the trial court mentioned “cumulative voting,

limited voting and ranked choice voting” as systems that, as

alternatives to district voting, would also “enhance” Latino voting

power. The court’s treatment of these alternatives was

perfunctory. The court did not define cumulative voting, limited

voting, or ranked choice voting. Nor did it attempt to analyze

how each might satisfy the dilution element. This fleeting

reference, which Pico authored, is insubstantial and cannot

support the judgment.

E

Pico responds with two arguments.

32

1

First, Pico argued the Act contains no dilution element at

all. In its 95-page brief, Pico devoted only one sentence to this

argument. An amicus brief also argued this point. At oral

argument, however, Pico expressly and conclusively abandoned

this argument, and for good reason.

To grasp this argument, recall element four requires

plaintiffs to prove racially polarized voting occurred in elections

held by the political subdivision. (§§ 14028 [stating this element],

14026, subd. (e) [defining racially polarized voting].)

Pico claimed a showing of racially polarized voting under

section 14028 completely satisfies and thus supplants the

dilution element in section 14027. Pico quoted the first sentence

of subdivision (a) of section 14028: “A violation of Section 14027

is established if it is shown that racially polarized voting occurs

in elections for members of the governing body of the political

subdivision or in elections incorporating other electoral choices by

the voters of the political subdivision.”

Pico thus contended the word “dilution” in section 14027

has no content independent of subdivision (a) of section 14028.

Pico’s analysis contravened principles of statutory

interpretation, in two independently fatal ways. Standard

principles of statutory interpretation direct us to the ordinary

meaning of the statutory words, the related provisions, and the

structure of the statutory scheme. (Scholes, supra, 8 Cal.5th at p.

1103.)

Two standard factors—statutory text and the rule against

surplusage—upend Pico’s argument and have forced Pico to

abandon it. We now detail the application in this case of these

two aspects of statutory interpretation.

33

a

The statutory text is paramount and is contrary to Pico’s

argument. Three sections require plaintiffs to satisfy both the

dilution element of section 14027 and section 14028’s

requirement of racially polarized voting. The three sections

containing this decisive language are sections 14032, 14029, and

14030.

Section 14032 of the Act grants a private right of action to

any voter in a protected class who resides in a political

subdivision where a violation of sections 14027 and 14028 is

alleged.

Section 14029 also is compelling, as plaintiffs gain

remedies only by establishing a violation of both 14027 and

14028.

Section 14030 follows the same pattern for attorney fees

and costs.

In sum, the legislature required litigants to prove both

dilution and racially polarized voting to establish a claim, to have

a remedy, and to recover fees.

These statutory passages require sections 14027 and 14028

to have independent content. Pico’s argument ran aground on

this requirement.

b

A second and independently fatal problem with Pico’s

argument was the rule against surplusage. If the Legislature

had intended the result Pico urges, it would not have included

the word “dilution” in the Act. But it did, and that too defeated

Pico’s argument.

Pico argued the statutory word “dilution” was mere

surplusage. But surplusage in legislation is unusual and

34

disfavored. The venerable assumption is drafters avoid

surplusage and therefore so should judges who interpret the

drafting. (E.g., People v. Leiva (2013) 56 Cal.4th 498, 506 [avoid

a construction that makes some words surplusage]; Market Co. v.

Hoffman (1879) 101 U.S. 112, 115–116 [this rule was old in

1879].)

The word “dilution,” moreover, is not just any old word.

The word “dilution” has been a core part of the voting rights

vocabulary at least since the 1964 decision in Reynolds v. Sims,

supra, 377 U.S. at pages 555 and footnote 29, 557, 563, 567, 568.

Dissenting Justice Harlan wrote the entire decision in that

landmark voting rights case boiled down to the concept of

dilution. (See id. at p. 590 (dis. opn. of Harlan, J.).)

It would have been incongruous for the Legislature to make

a key word nugatory. Pico cited no precedent for this illogical

form of statutory interpretation.

Pico’s proposed interpretation of the Act thus was incorrect.

(Cf. Sanchez, supra, 145 Cal.App.4th at p. 666 [Act was designed

to combat a kind of vote dilution].)

In sum, it is incorrect to read the Act to say a mere showing

of racially polarized voting necessitates a finding a city has

misapplied at-large voting. Under the Act, racially polarized

voting is a necessary but not sufficient element. Dilution also is

an independent and necessary element. As we have explained,

Pico did not prove dilution.

2

Pico’s second response is its “influence” argument. Pico

argues the change from 14 percent to 30 percent is legally

significant because it increases the electoral “influence” of

35

Latinos. The Legislature added the word “influence” to section

14027 of the Act but did not define it.

Pico proposes a definition of this word that would give a

winning cause of action to any group, no matter how small, that

can draw a district map that would improve its voting power by

any amount, no matter how miniscule. The trial court followed

this approach by asking whether “some alternative method of

election would enhance Latino voting power.” According to this

standard, any unrealized increase in a group’s percentage would

satisfy the dilution element.

This standard is untenable because it would create absurd

results.

A hypothetical illustrates this fatal problem.

Assume three facts: there are 3,000,000 voters in a city;

3,000 belong to a small racial group G; and all voters are racially

polarized in the sense voters will vote only for candidates of their

own race.

In an at-large election, group G would constitute 0.1

percent of the electorate. Suppose we now switch from at-large

voting to voting in 15 districts, each with 200,000 voters, and we

draw the lines to maximize the voting power of group G. Now

one district incorporates all 3,000 voters of group G. Thus group

G would increase its voting power from 0.1 percent strength at

large to 1.5 percent in that district. A change from 0.1 to 1.5

percent is a 15-fold increase, which seems sizeable in relative

terms. This change would improve G’s “influence” as Pico would

define the term. But a group with a vanishingly small numerical

presence—be it .01 percent or 1.5 percent—can have no practical

numerical influence in any voting system. There are simply too

36

few voters in group G to be numerically effective in an

environment of race-based voting.

To define “influence” as Pico proposes would merely ensure

plaintiffs always win.

Pico cites the case of Georgia v. Ashcroft, supra, 539 U.S. at

pages 470–471, 482–483. Georgia v. Ashcroft is inapposite in

many ways. It interpreted section 5 of the federal Voting Rights

Act, not section 2. These sections combat different evils and,

accordingly, impose different duties. (Id. at pp. 477–478.)

Section 5 deals with “retrogression,” id. at p. 477, which is not a

subject of the California Voting Rights Act. And Georgia v.

Ashcroft merely held a trial court failed to consider all relevant

factors when examining whether a redistricting plan would

diminish minority voters’ effective exercise of the electoral

franchise. (Id. at p. 485.) It did not hold groups will influence

elections at the 30 percent level but not at the 14 percent level.

The holding in Georgia v. Ashcroft does not assist Pico. (See

Bartlett v. Strickland (2009) 556 U.S. 1, 19–20 (plur. opn. of

Kennedy, J.) [a party asserting § 2 liability must show the

minority population in the potential election district is greater

than 50 percent].)

Pico seeks to rescue its influence argument by suggesting

non-Latinos might “cross over” and vote for Latino candidates,

buoying Latino power and clearing the 50 percent threshold to

electoral success. This suggestion arbitrarily embraces racially

polarized voting when it helps and abandons it when it hurts. It

creates a manipulable standard boiling down to plaintiff always

wins.

The City agrees some “influence” claims in theory could be

valid if evidence showed a near-majority of minority voters in a

37

hypothetical district would often be sufficient for the minority

group to elect its preferred candidates. But the City correctly

notes we need not decide that question today, for this case

presents no such district.

At oral argument, Pico said plaintiff Maria Loya would

have won using the seven-district map the trial court adopted.

The trial court, however, made no such finding. Nor did Pico’s

briefing to us argue this point, which Pico thereby forfeited.

Parties cannot fairly raise a new theory for the first time in oral

argument, for that tactic deprives the other side of notice and an

opportunity to be heard. It likewise deprives the court of a

thoughtful adversarial discussion of the issue. (E.g., Jones v.

Jacobson (2011) 195 Cal.App.4th 1, 5, fn. 12, 19 [parties forfeit

issues and arguments raised for the first time at oral argument].)

Dilution requires a showing, not of a merely marginal

percentage increase in a proposed district, but evidence the

change is likely to make a difference in what counts in a

democracy: electoral results.

In sum, Pico failed to prove dilution. The City did not

violate the statute. In light of this conclusion, we do not reach

the issues of whether there was racially polarized voting or

whether the trial court’s interpretation of the Act would make the

Act unconstitutional as applied to this case.

We turn to the constitutional question.

III

The constitutional question concerns equal protection. The

trial court found the City’s voting system violated equal

protection because, in 1946 and again in 1992, the City acted

with the purpose of suppressing Latino political power. The

court, however, applied an erroneous legal standard to reach

38

these faulty conclusions. A proper analysis shows Pico did not

prove the City adopted or maintained its system for the purpose

of discriminating against minorities.

A

Federal and state equal protection standards are not

always the same, but they are for this analysis. (See Jauregui,

supra, 226 Cal.App.4th at p. 800 [California decisions involving

voting issues closely follow federal constitutional analyses].) The

trial court took this approach and no party disputes it.

The City correctly argues the trial court applied the wrong

legal rule. We independently review this question of law. (Air

Couriers Internat. v. Employment Development Dept. (2007) 150

Cal.App.4th 923, 932.) This analysis does not require us to

resolve disputed facts.

In this case there were no eyewitnesses who testified in a

pertinent way to the crucial events. Rather, direct evidence

about the key events came from three types of historical artifacts:

(1) 1946 newspaper excerpts, voting records, and the proposed

charter; (2) the 1992 Charter Review Commission report, and (3)

the July 7, 1992 City Council meeting video. These historical

artifacts are the core of record for the equal protection analysis.

They were not created for purposes of litigation.

We independently review trial court findings based on

historical artifacts like videotapes. (See Scott v. Harris (2007)

550 U.S. 372, 379–380 (Scott) [appellate judges interpret “what

we see on the video” for themselves; the appellate court gives no

deference to the trial court’s findings]; id. at p. 384 [as a matter of

law, appellate judges conclude video shows car driver posed a

threat to pedestrians; no deference]; In re Rosenkrantz (2002) 29

Cal.4th 616, 677 [“Because the trial court’s findings were based

39

solely upon documentary evidence, we independently review the

record.”].)

Historical artifacts differ from the live witness testimony in

a case Pico cites: Nestle v. City of Santa Monica (1972) 6 Cal.3d

920, 924–928. We are in the same position as the trial court was

to evaluate materials like the 1946 newspaper clippings, the 1992

commission report, and the 1992 video. We do not defer to a trial

court’s reaction to historical artifacts like these, any more than

we would defer to a trial court’s “findings” that A Room of One’s

Own concerns Napoleon in Russia or that Citizen Kane shows

Druids built Stonehenge. News articles, videos, and other texts

that were not created for litigation are different from witnesses in

a courtroom testifying and being cross-examined under oath, and

are not fit topics for trial court factfinding to which appellate

courts will defer.

Deference to factual findings stems from the fact finder’s

observation of the demeanor of live witnesses and their manner

of testifying. (In re Avena (1996) 12 Cal.4th 694, 710.) That

deference is inappropriate when evidence does not involve the

credibility of live testimony. (In re Resendiz (2001) 25 Cal.4th

230, 249; see also People v. Ogunmowo (2018) 23 Cal.App.5th 67,

79 [no deference is given to trial court’s conclusion about written

documents, because trial and appellate courts were in the same

position in interpreting that evidence].)

Experts in this case testified about these written and video

artifacts, but that does not change our analysis. Appellate courts

are not required to defer to expert opinion regarding the ultimate

issue in a case. (Vergara v. State of California (2016) 246

Cal.App.4th 619, 650.) “Expert” opinion about how a court

should interpret, for instance, this 1992 video is simply highly

40

partisan advocacy in the guise of evidence; this type of “expert

testimony” boils down to argument, not evidence. Courts have

been familiar with this problem for some time. (Cf. Winans v.

N.Y. & Erie Railroad Co. (1858) 62 U.S. (21 How.) 88, 101 [courts

cannot receive professors to prove to the court the proper or legal

construction of instruments of writing; experience shows that

opposite opinions of persons professing to be experts may be

obtained in any amount].)

B

The central purpose of equal protection is to prevent

officials from discriminating on the basis of race. (Washington v.

Davis (1976) 426 U.S. 229, 239.) An inquiry into the purpose of

the challenged conduct is essential. A showing of a racially

disproportionate impact alone is insufficient. (Rogers v. Lodge

(1982) 458 U.S. 613, 617–618.) To prevail on its equal protection

violation claim, Pico had to prove the City adopted or maintained

its at-large system with the purpose of discriminating against

minorities. (Washington v. Davis, supra, at pp. 239–244.) The

parties agree on this.

Discriminatory purpose requires more than knowledge of

consequences. (Personnel Administrator of Mass. v. Feeney (1979)

442 U.S. 256, 279 (Feeney).) It implies the decision maker

selected or reaffirmed a particular course of action not in spite of

adverse impact on a group, but because of that impact. (Ibid.)

The facts of Feeney illustrate the difference between the

mental states of purpose and knowledge: between acting with

the goal of achieving an end, which is purpose, and merely acting

with awareness a side effect will result, which is knowledge.

In Feeney, a Massachusetts statute gave veterans

preference over others for state jobs. The goal was not to harm

41

women, but that was the effect, because only two percent of

veterans then were women. The statute created winners and

losers, and, overwhelmingly, women lost. Legislators knew that

would happen. They knew nearly all veterans at that time were

men. But the law did not deny women equal protection, even

though its authors knew it would disproportionately harm

women, because harming women was not their purpose. (Feeney,

supra, 442 U.S. at pp. 270, 274–281.)

This equal protection principle holds true as a general

matter. (Rogers v. Lodge, supra, 458 U.S. at pp. 617–618.)

Legislators’ awareness of a racially disparate impact is not

enough to prove their intent to discriminate by race. (City of

Mobile v. Bolden (1980) 446 U.S. 55, 66–67, 71 & fn. 17,

superseded by statute on other grounds.)

This careful distinction between purpose and knowledge is

familiar in the law. The Model Penal Code precisely defined

purpose and knowledge. (See Model Pen. Code, § 2.02, subd.

(2)(a) & (b).) Its definitions perfectly fit the distinction Feeney

drew.

People act purposely to achieve gender or race

discrimination when it is their conscious object to engage in

conduct of that nature or to cause such a result. People act

knowingly when they are aware it is practically certain their

conduct will cause a disparate impact along gender or racial

lines. (See Model Pen. Code, § 2.02, subd. (2)(a) & (b).)

The logic of this constitutional distinction is apparent.

Redistricting legislatures presumably are aware of racial

demographics, just as we presume they are aware of age,

economic status, and other demographic factors. But this

awareness, this knowledge, does not prove a purpose of race

42

discrimination. (Shaw v. Reno (1993) 509 U.S. 630, 646.)

Plaintiffs must show the government adopted or maintained the

election system for the purpose of racial discrimination. A

knowledge of a disparate impact is not enough. (City of Mobile v.

Bolden, supra, 446 U.S. 55 at pp. 66–67, 71 & fn. 17.)

The trial court departed from these equal protection

standards. Its departure invalidates its conclusions. The trial

court erroneously concluded the City acted with discriminatory

intent in 1946, when the City adopted its at-large system, and in

1992, when the City left this at-large system unchanged. But

there was no evidence the City had the purpose of engaging in

racial discrimination on either occasion. For this reason, the

City’s actions did not violate equal protection.

We examine events in 1946 and then 1992.

1

In 1946, 100 percent of the leaders of the minority

community who expressed a public opinion supported the City’s

action. None opposed it. The people who knew best and cared

most detected no City purpose of race discrimination against

them. As a matter of law, this unanimous evidence is a litmus

test dictating a finding in the City’s favor. The City in 1946 did

not act with a purpose of race discrimination.

Contemporaneous and unanimous support from minority

community leaders shows the 1946 charter was not a hostile

effort to oppress minorities. No one has a more sensitive eye or a

stronger vested interest than leaders of minority communities. If

they speak publicly with one supporting voice, as they did about

the election in 1946, minority leaders are bellwethers for voters

who care most keenly about the quality of life for minorities.

43

Pico’s claim is unprecedented. It asks us to rule a city and

its electorate engaged in hostile discrimination against minorities

when that city and its electorate did what minority leaders asked.

Pico cites no case with that illogical holding.

Pico does not explain how it, today, has greater insight into

the racial realities of 1946 than the unified leaders of the

minority communities who, in 1946, lived in Santa Monica. Pico

does not argue all these leaders were somehow tricked, out of

touch, muzzled, or corrupted. Pico simply suggests their views do

not matter. This is error.

Pico incorrectly contends “both proponents and opponents

of at-large elections understood such elections would prevent

minority representation.” To the contrary, the evidence shows

there was uniform minority support for the City’s 1946 charter

change. The only newspaper critiques of the proposed charter

were advertisements run by an anonymous group calling itself

the Anti-Charter Committee.

The work of the anonymous Anti-Charter Committee does

not show a general understanding the Charter would harm

minority groups. It is not evidence minority communities were

divided in their support of the 1946 charter.

In 1946, the identity of Anti-Charter Committee members

became a notorious issue in the City. In its ads attacking the

charter, the Anti-Charter Committee identified itself only as “a

group of business men [sic] and other private citizens.” A

newspaper editorial, however, questioned who belonged to, and

who contributed to, this “well-heeled group.” This editorial

contrasted the open and published “names of nearly 200

prominent Santa Monica citizens who have endorsed the new city

charter” with the secrecy surrounding the identity of the Anti-

44

Charter Committee’s membership and its source of funding. The

editorial asked if the Anti-Charter Committee’s contributors

included people “who sell certain supplies to the city government

under contracts very favorable to them, and who are unwilling to

have their names appear?” “The people of Santa Monica are

entitled to know who they are.”

The Anti-Charter Committee never responded to this

editorial, so far as the record shows.

The Anti-Charter Committee’s ads provide insight into its

perspective. One ad, titled “Who’s Going to Manage the City

Manager?”, states that, “[l]ike Communism, the [charter’s] theory

of a city-manager-operated city is wonderful. Practically it does

not work out. Dictatorship never does.”

A different Anti-Charter Committee ad stressed systems

like the one in the proposed charter “have higher tax rates and

higher indebtedness” than the City’s existing system. “Don’t

write a blank check and give it to a cause that has proved itself a

spendthrift!”

Another Anti-Charter Committee ad stated “[t]he first

claim of minority groups is that they are making a change in the

interest of ‘true democracy’—this is much the same manner as

the communists work from within.”

This same ad continued: “Do you want increased taxes,

rule of the city by a few? If you don’t, then—VOTE NO . . . .”

Another ad, titled “DO YOU WANT THIS DISASTER IN

SANTA MONICA?”, reprinted letters to the editor from a paper

in Montebello, which the ad said had a government like the

proposed Freeholders’ charter. The letters expressed anger at the

high taxes and expenditures in Montebello. After these letters,

the ad concluded:

45

“What more could be said to prove our point that this

proposed Charter will plunge Santa Monica into bitter political

strife and chaos; it will mean unbearable taxation, will establish

dictatorial rule that will starve out minority groups and will

throw our entire model Civil Service into the discard.”

Pico puts special emphasis on one Anti-Charter Committee

ad titled “MINORITY GROUPS and the Proposed Charter.” This

ad posited “[t]he lot of a member of a minority, whether it be in a

location of not-so-fine homes, or one of race, creed, or color, is

never too happy under the best of conditions.” The ad predicted

the proposed charter would create a “dictatorship” of council

members who would “mostly originate from North of Montana”

and this “dictatorship type of government” would block access to

government. “Where will the laboring man go? Where will the

Jewish, colored, or Mexican go for aid in his special problems?”

No evidence shows any “laboring man” or the “Jewish,

colored, or Mexican” supported the Anti-Charter Committee or its

advertising or opposed the 1946 charter.

Pico’s reliance on these ads is misplaced. The Anti-Charter

Committee was not an advocate for minorities or for minority

voting rights. Pico claims news clippings show everyone in Santa

Monica in 1946 understood at-large voting disadvantaged

minorities, but the news clippings show the opposite. Nor are

they reason to discard the legal principle that unanimous

minority support for an electoral result shows the election was

not the product of racial prejudice against those minorities.

The same holds for Pico’s other supposed sources of insight

into the 1946 election. All these arguments unacceptably assume

Pico and its experts can know better than minority leaders in

1946 what was good for minorities in 1946.

46

In sum, Pico failed to prove the City acted with the purpose

of discriminating against racial minorities in 1946. (Feeney,

supra, 442 U.S. at pp. 279–281.) To the contrary, minority

leaders who spoke in 1946 unanimously favored the City’s action.

The City did not violate equal protection in 1946.

2

We turn to 1992.

In 1992, the City appointed a 15-member commission that

wrote a high-minded and comprehensive, but perplexing, report.

The report was perplexing because it expressed strong

dissatisfaction with the status quo but offered no consensus

alternative. The report’s final recommendation was to delay

action and gather more information. The City Council met

publicly to mull the report. This public discussion was a model of

civic engagement: substantive, open, participatory, and cordial.

There was never a hint of hostility to minorities. To the contrary,

speaker after speaker sought ways of increasing minority

empowerment. But after discussing the issue for hours the City

Council remained deadlocked about the right alternative to the

status quo and resolved simply to study the issue further.

As a matter of law, this series of actions was not purposive

race discrimination. The trial court erred again by applying the

wrong legal standard. Feeney required proof of a purpose of racial

discrimination. There was none.

“There is, [moreover], an added wrinkle in this case:

existence in the record of a videotape capturing the events in

question. There are no allegations or indications that this

videotape was doctored or altered in any way, nor any contention

that what it depicts differs from what actually happened. The

videotape quite clearly contradicts the version of the story told by

47

[Pico].” (Scott, supra, 550 U.S. at p. 378.) Pico’s version of events

is “so utterly discredited” by this video as to dictate judgment for

the City. (Id. at p. 380.) The trial court “should not have relied

on such visible fiction; it should have viewed the facts in the light

depicted by the videotape.” (Id. at pp. 380–381.)

We have studied this 1992 videotape. It contains nothing

showing a purpose of racial discrimination.

Pico incorrectly focuses on a single sentence from one

speaker, and argues this sentence showed the City’s entire

deliberation and vote was for the purpose of hostile race

discrimination. This one sentence was when Councilmember

Zane said “And so, you gain the representation but you lose the

housing.”

This sentence is not evidence the City had a purpose of

hostile discrimination against anyone. This sentence contained

no express, implied, or coded racial reference or hostile purpose of

racial discrimination.

An objective observer watching this video sees Zane ask

about an incentive that district voting creates. This incentive is

for district representatives to be more responsive to district

voices. Zane questions whether this is a good thing. He was

concerned this incentive would imperil a political cause he

favored: affordable housing projects.

Zane supported affordable housing. Affordable housing is

not a policy with a purpose of harming Latinos or minorities. For

instance, Councilmember Antonio Vazquez testified Santa

Monicans for Renters’ Rights endorsed his successful run for the

Santa Monica City Council in 1990, and he thought he probably

would not have won without that endorsement.

48

Zane noted affordable housing projects usually engendered

NIMBY protests from neighbors. Zane asked Richard Farjado

and Charter Review Commissioner Doug Willis whether they

would acknowledge a drawback of district voting in this context.

The drawback, Zane explained, was the proclivity of district

representatives to oppose affordable housing projects because of

their heightened sensitivity to neighborhood protests. “A small

district makes those protesters look very powerful,” said Zane.

Zane made no reference to Latinos or the Pico area. He

suggested he was concerned with a general tendency, not a

particular district: “I’m not trying to identify a particular

district.”

Zane expressed concern district voting would make NIMBY

voting so prevalent as to doom affordable housing projects.

Richard Fajardo, a former MALDEF lawyer with experience in

voting rights cases, agreed “that has been an issue and that has

been a problem” because “even within the Latino community” a

debate between homeowners and renters would have to continue.

In context and beyond question, Zane’s comment was not a

statement of discrimination against Latinos. The entire

exchange, in context, was a substantive and cogent discussion of

the pluses and minuses of district voting. There were no coded

messages of hostility to Latinos or revealing Freudian slips.

Pico claims Zane implied the Pico area was a dumping

ground for undesirable low-income housing projects. This claim

is incorrect. Zane explained he was not discussing particular

districts but rather the tendency of any district representative to

fear the local protest Zane said typically accompanied affordable

housing projects.

49

We decline Pico’s invitation to take the unprecedented and

unwise path it urges.

When a city’s commission supports minority empowerment

but neither it nor the city can achieve consensus about the right

alternative to at-large voting, the municipal decision to gather

more information does not violate equal protection. As a matter

of law, a court need go no further to vindicate this decision

against the allegation of an invidious purpose.

In sum, the City did not act with a racially discriminatory

purpose in 1946 or in 1992. Pico’s equal protection claims fail.

We gave the parties our tentative opinion in this case in

advance of oral argument. This tentative opinion included the

equal protection analysis presented here, including our statement

of the standard of review and our analysis of the 1946 news

clippings and the events of 1992. At oral argument, Pico

forcefully and at considerable length presented its response to

our tentative opinion, but did not contest our equal protection

analysis in any respect.

The City did not violate the California Voting Rights Act or

the California Constitution. We do not reach the remedies issue

because there was no wrong to remedy.

We reverse the judgment. We award costs to, and direct the trial court to enter judgment for, the City of Santa Monica.