Jason D’Andrea and Bruce Wessel have posted this draft on SSRN (forthcoming, Fordham Law Voting Rights and Democracy Forum). Here is the abstract:

This Essay analyzes Pico Neighborhood Association v. City of Santa Monica, the California Supreme Court’s first decision interpreting the California Voting Rights Act of 2001 (“CVRA”).

This Essay explains the holding of Pico Neighborhood and the new prerequisite for suit that it establishes. It then addresses five topics related to understanding and applying the decision.

First, the opinion’s focus on the ability of candidates to win by a plurality of the vote is discussed, as it will be central to liability and remedy issues in future cases. When a majority of the vote is not required to win an election, smaller groups of minority voters below a majority are able to elect their preferred candidates. Second, and related to the first point, the importance of crossover voters in the California Supreme Court’s approach is addressed. Here, the majority opinion in Strickland is rejected, and, in essence, the dissent by Justice David Souter in that case is embraced. Third, we identify alternative electoral systems mentioned in Pico Neighborhood and the new judicial task of comparing existing at-large systems to alternative systems in the liability phase of the case. Fourth, the decision’s reference to Section 5 of the VRA is explored. Like the new test that is now a part of the CVRA, in historical Section 5 cases, existing electoral systems were compared to proposed systems. Finally, we offer an interpretation of the “ability to influence” prong of the CVRA, a statutory interpretation question the California Supreme Court decided not to address in Pico Neighborhood because it was not squarely raised in the case.