The petition for review is granted. The parties are ordered to brief the following issue: What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act? On the Court’s own motion, the Court of Appeal’s Opinion is ordered depublished. On the court’s own motion, the Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal filed July 9, 2020, which appears at 51 Cal.App.5th 1002. (Cal. Const., art. VI, section 14; Cal. Rules of Court, rule 8.1125.)
From my coverage of the court of appeal opinion:
On the question of violating the CVRA, the appeals court said that the trial court made a legal error. It said that plaintiffs alleging a CVRA violation not only had to prove racially polarized voting, but had to prove that this led to a dilution of the vote which affected the political power of the minority of the city. This is somewhat of a surprise; I had understood the CVRA as not requiring such proof, which is why I thought it was somewhat vulnerable to a federal constitutional challenge as a race-based remedy that could be found by SCOTUS conservatives to violate the U.S. Constitution’s equal protection clause.
It strikes me that the appeals court decision engages in a pretty uncharitable reading of the relevant part of the statute (section 14027), which reads in pertinent part: that plaintiffs must prove “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.” The appeals court says there was no proof of “dilution” but it is dilution of the ability to influence the election, and that seems a very low bar. (The appeals court has a response to that, which you can read.)
This first part of the opinion, if it withstands further review at the state Supreme Court, is likely to lead many more California cities to resist lawsuits aimed at forcing the elimination of at large districts. (It might also cause the California legislature to rework part of the statute to make it easier for plaintiffs to win these cases.)
The appeals court was even less charitable of the trial court’s factual finding as to intentional vote dilution in Santa Monica. Generally speaking factual findings are reviewed under a very deferential standard in the appeals court. The appeals court tries to dance around this standard by saying it can review the evidence independently, but that seems questionable here. The plaintiffs’ expert historian, Morgan Kousser, presented lots of evidence about intent, which the appeals court reviewed with no deference whatsoever.
This second part of the ruling is very specific to the state of Santa Monica, but does demonstrate that some courts are going to be very wary of inferring racially discriminatory intent from mostly documentary evidence.
In short, this is a big loss for voting rights plaintiffs under the CVRA, and it enunciates a standard that, if it holds, will make these cases much more like federal Voting Rights Act cases.