Pico Neighborhood Association v. City of Santa Monica ( 2023 )

IN THE SUPREME COURT OF
CALIFORNIA
PICO NEIGHBORHOOD ASSOCIATION et al.,
Plaintiffs and Respondents,
v.
CITY OF SANTA MONICA,
Defendant and Appellant.
S263972
Second Appellate District, Division Eight
B295935
Los Angeles County Superior Court
BC616804
August 24, 2023
Justice Evans authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Jenkins concurred.
PICO NEIGHBORHOOD ASSOCIATION v.
CITY OF SANTA MONICA
S263972
Opinion of the Court by Evans, J.
Local governments make many of the most important
decisions that affect Californians’ everyday lives. They build
and repair public streets, they define a neighborhood’s character
through planning and zoning, and they decide where to place
public parks and where to allow restaurants, bars, and liquor
stores to operate. They make decisions about public transit and
decide where to site industries that cause pollution. They
provide police services and determine the level and type of
policing and other first responder services, they educate our
children, they operate or regulate local utilities, and they have
the power to levy taxes. The people exercise control over these
choices by electing representatives to city councils, county
boards, boards of education, community college boards, special
district boards, and other bodies.
The genius of representative government, in all its guises,
is that it is responsive to the people it serves. But its ability to
be responsive is dependent in a fundamental way on the
assumption that each person’s vote is of equal weight. While we
often take that assumption for granted, sometimes the actual
value of one’s vote can vary based on the way the voting is
structured. For example, a minority of voters may find itself
unable to elect even a single member of a multimember body
when the members are elected at large, but would be able to
1
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
elect one or more representatives if the members were elected
by districts or by another lawful method.
In such circumstances, the voting rules may effectively
decide whether a group of voters can have a voice in the myriad
decisions made by local representatives. With a seat at the
table, the voters’ representative can have a say in the topics and
terms of the debate on the many crucial decisions that local
governments make. Without a seat, though, the voters’ voice
may be effectively muted or silenced and their needs and
preferences may be ignored or given less weight.
To address this problem, federal and state law restrict at-
large voting systems from unfairly submerging or diluting the
votes of a minority in the majority’s greater numbers. Section 2
of the federal Voting Rights Act of 1965 (52 U.S.C. § 10301;
VRA) prohibits states and their political subdivisions from using
an at-large method of election when such a scheme would “result
in unequal access to the electoral process” based on protected
characteristics of race, color, or membership in a language
minority group. (Thornburg v. Gingles (1986) 478 U.S. 30, 46
(Gingles).) In an effort to provide greater protections to
California voters than those provided by the VRA, the
Legislature subsequently enacted the California Voting Rights
Act of 2001 (Elec. Code, § 14025 et seq.; CVRA). The CVRA
prohibits an at-large method of election “that impairs the ability
of a protected class” (id., § 14027) — as defined by race, color, or
language minority group (id., § 14026, subd. (d)) — “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 are members of a protected class” (id.,
§ 14027).
2
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
Both statutory schemes require a plaintiff to show racially
polarized voting — i.e., that the protected class members vote as
a politically cohesive unit, while the majority votes “sufficiently
as a bloc usually to defeat” the protected class’s preferred
candidate. (Gingles, supra, 478 U.S. at p. 56; accord, Elec. Code,
§§ 14026, subd. (e) [providing that “racially polarized voting”
may be established by “[t]he methodologies for estimating group
voting behavior as approved in applicable federal cases to
enforce the [VRA]”], 14028, subd. (a).) The CVRA, however,
“make[s] it easier to successfully challenge at-large districts” in
two significant respects. (Assem. Com. on Elections,
Reapportionment and Const. Amends., Analysis of Sen. Bill
No. 976 (2001–2002 Reg. Sess.) as amended Mar. 18, 2002, p. 4.)
First, the CVRA, unlike the VRA, does not require a plaintiff to
demonstrate that the members of the protected class would be
geographically compact or concentrated enough to constitute a
majority of a hypothetical single-member district. (Compare
Elec. Code, § 14028, subd. (c) with Gingles, at p. 50.) Second,
while a plaintiff can succeed under either the VRA or the CVRA
by showing that the at-large method dilutes a protected class’s
voting power by impairing its ability “to elect” candidates of its
choice (52 U.S.C. § 10301(b); Elec. Code, § 14027), only the
CVRA allows the plaintiff to prevail by demonstrating, in the
alternative, that the at-large method impairs the class’s ability
“to influence the outcome of an election.” (Elec. Code, § 14027,
italics added; cf. League of United Latin American Citizens v.
Perry (2006) 548 U.S. 399, 446 (LULAC) (plur. opn. of Kennedy,
J.) [“The failure to create an influence district . . . does not run
afoul of § 2 of the [VRA]”].)
In this case, the trial court determined that because of
racially polarized voting, the at-large method of electing city
3
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
council members in the City of Santa Monica (the City) diluted
Latino voters’ ability to elect their preferred candidates and
their ability to influence the outcome of council elections, as
compared to several alternative electoral methods, including
district elections. To remedy this violation, the trial court
ordered the City to promptly conduct a special election using a
seven-district map drafted by an expert who testified at trial.
The Court of Appeal granted a stay of the judgment and
then reversed. It disagreed with the trial court’s finding that
the at-large method of election had “impaired Latinos’ ability to
elect candidates of their choice or to influence the outcome of an
election.” In the Court of Appeal’s view, there had been no
dilution of Latino voters’ ability to elect their preferred
candidates because Latino voters were too few and too
geographically dispersed “to muster a majority, no matter how
the City might slice itself into districts.” The court likewise
found no dilution of Latino voters’ ability to influence the
outcome of an election because a group’s ability to influence an
election, the Court of Appeal reasoned, has no meaning
independent of the group’s ability to elect its preferred
candidate. In light of its findings, the Court of Appeal found it
unnecessary to consider whether racially polarized voting had
been established.
We conclude 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. City council elections, after all, are
nonpartisan (Cal. Const., art. II, § 6), and the record here shows
that winning candidates often earn only a plurality of the vote.
4
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
Accordingly, what is required to establish “dilution” of a
protected class’s “ability . . . to elect candidates of its choice”
(Elec. Code, § 14027) is proof that, under some lawful
alternative electoral system, the protected class would have the
potential, on its own or with the help of crossover voters, to elect
its preferred candidate. The lawful alternative electoral system
may include, but is not limited to, single-member district
elections.
A court presented with a dilution claim should undertake
a searching evaluation of the totality of the facts and
circumstances (see, e.g., Elec. Code, § 14028, subd. (e)),
including the characteristics of the specific locality, its electoral
history, and “ ‘an intensely local appraisal of the design and
impact’ of the contested electoral mechanisms” as well as the
design and impact of the potential alternative electoral system.
(Gingles, supra, 478 U.S. at p. 79; see Allen v. Milligan (2023)
___ U.S. ___, ___ [216 L.Ed.2d 60, 75] (Milligan).) In predicting
how many candidates are likely to run and what percentage may
be necessary to win, courts may also consider the experiences of
other similar jurisdictions that use alternative electoral
systems. (Cf. Gingles, at p. 56.)
Because the Court of Appeal did not evaluate the dilution
element of the CVRA under this standard, we reverse the
judgment and remand the matter to the Court of Appeal for it to
reconsider in the first instance the CVRA claim presented here.
I. BACKGROUND
Defendant, the City of Santa Monica, has a seven-member
city council. Members are elected at large through staggered
elections: four are elected during the year of a presidential
election, while the other three are elected during the year of a
5
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
gubernatorial election. Plaintiff Pico Neighborhood Association
is a nonprofit organization dedicated to advancing the interests
of the residents of the City’s Pico neighborhood, where its Latino
residents are concentrated. While Latinos constitute only 13.64
percent of the City’s citizen-voting-age population, they make up
30 percent of Pico’s citizen-voting-age population.
In April 2016, plaintiffs Pico Neighborhood Association
and Maria Loya, a Latina registered voter, filed this action
against the City, alleging that the City’s at-large method of
electing its city council unlawfully impaired the ability of Latino
voters to elect their preferred candidates or, alternatively, to
influence the outcome of council elections. The at-large scheme,
in plaintiffs’ view, violated the CVRA as well as the equal
protection clause of the California Constitution (Cal. Const.,
art. I, § 7, subd. (a)).
Following a six-week trial, the Los Angeles County
Superior Court ruled in plaintiffs’ favor on both claims, but this
appeal concerns only the CVRA claim. After reviewing elections
over the preceding 24 years, the court declared that “a consistent
pattern of racially-polarized voting emerges. In most elections
where the choice is available, Latino voters strongly prefer a
Latino candidate running for Defendant’s city council, but,
despite that support, the preferred Latino candidate loses.”
Indeed, at the time of the court’s ruling, “only one Latino ha[d]
been elected to the Santa Monica City Council in the 72 years of
the current election system.”1 The court further observed that
1
The City asserts that in the 2020 city council election, four
and one-half years after plaintiffs filed this action, three of the
five winning candidates were Latino. Plaintiffs dispute this
6
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
the statistical evidence of racially polarized voting was
corroborated by multiple qualitative factors within the meaning
of Elections Code section 14028, subdivision (e): a history of
discrimination against Latinos in Los Angeles County generally
and in the City specifically; the use of staggered elections, which
may have discriminatory effects in some circumstances; an
income disparity between the City’s Latinos and its majority
population that is “far greater than the national disparity”; the
use of racist appeals in city council campaigns; and the lack of
responsiveness to the interests and concerns of the City’s Latino
community, including the substantial underrepresentation of
Latinos on the City’s various commissions.
The trial court further found that the City’s at-large voting
system unlawfully diluted the electoral strength of its Latino
residents within the meaning of the CVRA, in that several
alternative voting systems — e.g., district-based elections,
cumulative voting, limited voting, and ranked choice voting —
would better enable Latino voters “to elect candidates of their
choice or influence the outcomes of elections.” In light of “the
national, state and local experiences with district elections,
particularly those involving districts in which the minority
group is not a majority of eligible voters,” the court adopted the
election map drafted by plaintiffs’ expert, which created seven
council districts. The court ordered a special, district-based
election for all seven seats to be held on July 2, 2019.
The City successfully petitioned for a writ of supersedeas
to stay the trial court’s order for new elections pending
resolution of its appeal. In that appeal, the Second Appellate
characterization of the winning candidates’ ethnicities. Given
the limited issue before us, we express no view on the dispute.
7
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
District, Division Eight, reversed the trial court judgment,
finding that the City’s at-large voting system violated neither
the CVRA nor the California Constitution. The Court of Appeal
began by rejecting plaintiffs’ one-sentence argument that a
CVRA violation could be established merely by evidence of
racially polarized voting without any further showing that the
City’s at-large voting system “diluted” Latino voting power as
compared to “ ‘some alternative method of election.’ ” The court
next concluded that changing from an at-large system (where
Latinos constituted approximately 14 percent of the voting
population) to a district system (where Latinos would constitute
30 percent of a district centered around the Pico neighborhood)
would not enhance Latino voters’ ability to elect their candidates
of choice or influence the outcome of an election in a “legally
significant” way and therefore failed to demonstrate that the
City’s at-large system “dilut[ed]” their voting power within the
meaning of the CVRA. Plaintiffs’ theory, the Court of Appeal
reasoned, “would create absurd results,” in that “any unrealized
increase in a group’s percentage would satisfy the dilution
element,” even if the group had “a vanishingly small numerical
presence.” The court likewise rejected plaintiffs’ contention that
other voters might “ ‘cross over’ and vote for Latino candidates,
buoying Latino power and clearing the 50 percent threshold to
electoral success.” Such a suggestion, the Court of Appeal
claimed, “arbitrarily embraces racially polarized voting when it
helps and abandons it when it hurts.” In light of its conclusion
that plaintiffs had failed to demonstrate dilution, the court did
not consider whether plaintiffs had demonstrated the existence
of racially polarized voting.
We granted plaintiffs’ petition for review to determine
what constitutes dilution of a protected class’s ability to elect
8
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
candidates of its choice or to influence the outcome of an election
within the meaning of the CVRA. We also ordered depublication
of the Court of Appeal opinion. (Pico Neighborhood Assn. v. City
of Santa Monica, S263972, Supreme Ct. Mins., Oct. 21, 2020.)
II. DISCUSSION
Different electoral systems can lead to different outcomes.
(See Engstrom, Modified Multi-Seat Election Systems As
Remedies for Minority Vote Dilution (1992) 21 Stetson L.Rev.
743, 743 (Engstrom).) For example, where a racial minority and
a racial majority consistently prefer different candidates,
“multimember districts and at-large voting schemes may
‘ “operate to minimize or cancel out the voting strength of racial
[minorities in] the voting population.” ’ ” (Gingles, supra, 478
U.S. at p. 47.) The use of at-large voting schemes in such
circumstances allows the majority, by virtue of its numerical
superiority, not only to regularly defeat the candidates preferred
by the minority (id. at p. 48), but also to “ ‘ignore [minority]
interests without fear of political consequences,’ [citation]
leaving the minority effectively unrepresented.” (Id. at p. 48,
fn. 14.) If, on the other hand, the political unit were “divided
into single-member districts,” those same minority groups “may
be able to elect several representatives.” (Rogers v. Lodge (1982)
458 U.S. 613, 616.) This potential disparity is why the high
court has “stated on many occasions that multimember
districting plans, as well as at-large plans, generally pose
greater threats to minority-voter participation in the political
process than do single-member districts.” (Growe v. Emison
(1993) 507 U.S. 25, 40.)
The VRA and the CVRA each offer an opportunity for
racial and language minority groups to challenge the dilution of
9
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
their voting power caused by at-large voting systems. But they
do so in somewhat different ways. Because the CVRA bears
some similarities to the VRA, while also seeking to address
perceived inadequacies in the VRA, we begin with a review of
both statutory schemes.
A. The VRA and the CVRA, Compared
1. The VRA
The VRA, as amended in 1982, prohibits a state or its
political subdivisions from using any “voting qualification or
prerequisite to voting or standard, practice, or procedure” that
“results in a denial or abridgement of the right of any citizen of
the United States to vote on account of race or color, or
[membership in a language minority group]” where, “based on
the totality of circumstances, it is shown that the political
processes leading to nomination or election in the State or
political subdivision are not equally open to participation by
members of [the protected] class of citizens . . . in that its
members have less opportunity than other members of the
electorate . . . to elect representatives of their choice.” (52 U.S.C.
§ 10301(a), (b).) An at-large electoral system or multimember
district 2 can qualify as a prohibited practice under the VRA
when the plaintiff can show that a bloc-voting majority is
2
“In an at-large (or multi-member district) system, all
voters elect all representatives, and each voter has as many
ballots as there are positions available. This system contrasts
with a single-member district plan, under which the entire
political jurisdiction is divided into districts roughly equal in
population, each of which selects one representative by vote
within the district.” (Badillo v. Stockton (9th Cir. 1992) 956 F.2d
884, 889.)
10
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
“usually . . . able to defeat candidates supported by a politically
cohesive, geographically insular minority group.” (Gingles,
supra, 478 U.S. at p. 49.) “ ‘[T]he greater the degree to which
the electoral minority is homogenous and insular and the
greater the degree that bloc voting occurs along majority-
minority lines, the greater will be the extent to which the
minority’s voting power is diluted by multimember districting.’ ”
(Id. at p. 50.)
A plaintiff asserting a “vote dilution” challenge to an at-
large voting system under the VRA must satisfy “three
threshold conditions.” (Voinovich v. Quilter (1993) 507 U.S. 146,
157.) “First, the minority group must be able to demonstrate
that it is sufficiently large and geographically compact to
constitute a majority in a single-member district. . . . Second,
the minority group must be able to show that it is politically
cohesive. . . . Third, the minority must be able to demonstrate
that the white majority votes sufficiently as a bloc to enable it —
in the absence of special circumstances, such as the minority
candidate running unopposed, [citation] — usually to defeat the
minority’s preferred candidate.” (Gingles, supra, 478 U.S. at pp.
50–51, fn. omitted.) Once those predicate facts have been
established, “the trial court is to consider the ‘totality of the
circumstances’ and to determine, based ‘upon a searching
practical evaluation of the “past and present reality,” ’ [citation],
whether the political process is equally open to minority voters.
‘ “This determination is peculiarly dependent upon the facts of
each case,” ’ [citation], and requires ‘an intensely local appraisal
of the design and impact’ of the contested electoral
mechanisms.” (Id. at p. 79.) In undertaking this analysis, the
court considers a number of factors that “typically may be
relevant” to a claim under the VRA (Gingles, at p. 44) and that
11
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
are sometimes called “ ‘the Senate factors’ ” 3 because they
appeared in the 1982 Senate Judiciary Committee majority
report that accompanied the bill amending the VRA (Yumori-
Kaku v. City of Santa Clara (2020) 59 Cal.App.5th 385, 394).
2. The CVRA
While the CVRA is “much like” the VRA in some ways,
there are notable differences between the two statutory
schemes. (Assem. Com. on Judiciary, Analysis of Sen. Bill No.
976 (2001–2002 Reg. Sess.) as amended Apr. 9, 2002, p. 2.) Four
stand out in this proceeding. First, unlike the VRA, the CVRA
applies only to “[a]n at-large method of election” (Elec. Code,
§ 14027) for nonpartisan offices (id., § 14026, subds. (a), (c); see
Cal. Const., art. II, § 6). Second, the CVRA addresses not only
impairments to a protected class’s “ability . . . to elect candidates
of its choice” (Elec. Code, § 14027; cf. 52 U.S.C. § 10301(b)
[“opportunity . . . to elect representatives of their choice”]), but
3
The Senate factors include “the history of voting-related
discrimination in the State or political subdivision; the extent to
which voting in the elections of the State or political subdivision
is racially polarized; the extent to which the State or political
subdivision has used voting practices or procedures that tend to
enhance the opportunity for discrimination against the minority
group, such as unusually large election districts, majority vote
requirements, and prohibitions against bullet voting; the
exclusion of members of the minority group from candidate
slating processes; the extent to which minority group members
bear the effects of past discrimination in areas such as
education, employment, and health, which hinder their ability
to participate effectively in the political process; the use of overt
or subtle racial appeals in political campaigns; and the extent to
which members of the minority group have been elected to
public office in the jurisdiction.” (Gingles, supra, 478 U.S. at
pp. 44–45.)
12
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
also the class’s “ability to influence the outcome of an election”
(Elec. Code, § 14027, italics added). Third, the CVRA made it
easier to challenge at-large electoral systems by explicitly
rejecting the first Gingles precondition: “The fact that members
of a protected class are not geographically compact or
concentrated may not preclude a finding of racially polarized
voting, or a violation of Section 14027 and this section, but may
be a factor in determining an appropriate remedy.” (Elec. Code,
§ 14028, subd. (c).) Fourth, the CVRA includes its own list of
potentially probative factors, many of which overlap with the
Senate factors above, but cautions that they are “not necessary
factors to establish a violation” of the CVRA. (Elec. Code,
§ 14028, subd. (e).)4
Despite these differences, the CVRA, like the VRA,
requires a plaintiff claiming vote dilution arising from an at-
large voting system to establish the existence of racially
polarized voting — i.e., that the protected class members vote as
a politically cohesive unit, while the majority votes “sufficiently
as a bloc usually to defeat” the protected class’s preferred
candidate. (Gingles, supra, 478 U.S. at p. 56; accord, Elec. Code,
§§ 14026, subd. (e) [providing that “racially polarized voting”
4
The CVRA factors include “the history of discrimination,
the use of electoral devices or other voting practices or
procedures that may enhance the dilutive effects of at-large
elections, denial of access to those processes determining which
groups of candidates will receive financial or other support in a
given election, the extent to which members of a protected class
bear the effects of past discrimination in areas such as
education, employment, and health, which hinder their ability
to participate effectively in the political process, and the use of
overt or subtle racial appeals in political campaigns.” (Elec.
Code, § 14028, subd. (e).)
13
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
may be established by “[t]he methodologies for estimating group
voting behavior as approved in applicable federal cases to
enforce the [VRA]”], 14028, subd. (a).)5
B. Defining Terms in the CVRA
The CVRA prohibits the use of an at-large method of
election when it “impairs 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 are members of a protected class.” (Elec.
Code, § 14027.) Plaintiffs contend that the City’s at-large city
council elections prevent Latino voters from electing, either on
their own or with the support of crossover voters, their preferred
candidate. They argue this diluted their ability to elect their
candidate of choice as well as their ability to influence the
outcome of an election. The statute, however, does not define
“dilution,” “ability . . . to elect candidates of its choice,” or “ability
. . . to influence the outcome of an election.” (Ibid.) The meaning
of these undefined terms presents a pure question of law that
we review de novo. (See Lopez v. Ledesma (2022) 12 Cal.5th 848,
857.)
1. “Dilution”
In plaintiffs’ view, proof of racially polarized voting, in
itself, establishes “dilution” within the meaning of the CVRA.
5
We do not consider here whether the City’s elections are
racially polarized — an issue the Court of Appeal has not yet
addressed — but we do note that, under the CVRA, “[e]lections
conducted prior to the filing of an action . . . are more probative
to establish the existence of racially polarized voting than
elections conducted after the filing of the action.” (Elec. Code,
§ 14028, subd. (a).)
14
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
They rely on the “plain language” of Elections Code section
14028, subdivision (a), which provides, “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 . . . .” (Italics added.) According to
plaintiffs, “Section 14028 expressly states how a violation of
Section 14027 is shown” — i.e., simply by demonstrating the
existence of racially polarized voting in an at-large jurisdiction.
When considered in isolation, this single sentence might
arguably be susceptible to plaintiffs’ reading. However, a court
construing a statute does not view a fragment in isolation, but
considers the statute as a whole, in context with related
provisions and the overall statutory structure, so that it may
best identify and effectuate the scheme’s underlying purpose.
(See People v. Pennington (2017) 3 Cal.5th 786, 795.) As
plaintiffs concede, and as the legislative history reveals, the
CVRA is in many ways “very similar” to the VRA. (Governor’s
Off. of Planning & Research, Enrolled Bill Rep. on Sen. Bill No.
976 (2001–2002 Reg. Sess.) July 1, 2002, p. 4.) When we
construe “dilution” under the CVRA, we must therefore be
mindful that it is a term of art with a settled meaning under
section 2 of the VRA: “ ‘The phrase vote dilution itself suggests
a norm with respect to which the fact of dilution may be
ascertained.’ ” (Holder v. Hall (1994) 512 U.S. 874, 880 (plur.
opn. of Kennedy, J.).) To establish vote dilution under the VRA,
“a court must find a reasonable alternative practice as a
benchmark against which to measure the existing voting
practice.” (Holder, at p. 880 (plur. opn. of Kennedy, J.); id. at
p. 887 (conc. opn. of O’Connor, J.) [“On this, there is general
agreement”]; id. at p. 951 (dis. opn. of Blackmun, J.) [“There is
widespread agreement”].) So while the existence of racially
15
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
polarized voting “ ‘is relevant to a vote dilution claim’ ” under
the VRA (Gingles, supra, 478 U.S. at p. 55) — and is indeed “a
key element” (ibid.) — it is not in itself sufficient.
We find, for several reasons, the same is true under the
CVRA. The similarities between the two schemes strongly
suggest that “dilution” requires not only a showing that racially
polarized voting exists, but also that the protected class thereby
has less ability to elect its preferred candidate or influence the
election’s outcome than it would have if the at-large system had
not been adopted. (Cf. Ferra v. Loews Hollywood Hotel, LLC
(2021) 11 Cal.5th 858, 874 [concluding that the Legislature
intended to adopt the “ ‘widely understood’ ” meaning of a term
in federal law]; Davis v. City of Berkeley (1988) 47 Cal.3d 512,
533 [concluding that undefined “terms of art” in a statute refer
to the definitions provided by federal law].) Although the
legislative history materials can be read in different ways, one
committee analysis recognized that the CVRA targets racially
polarized voting in at-large elections only “if it Impairs the Right
of Protected Groups” to elect their preferred candidates or
influence the outcome of an election. (Assem. Com. on Judiciary,
Analysis of Sen. Bill No. 976, supra, as amended Apr. 9, 2002,
p. 2.) After all, “the very concept of vote dilution implies — and,
indeed, necessitates — the existence of an ‘undiluted’ practice
against which the fact of dilution may be measured.” (Reno v.
Bossier Parish School Bd. (1997) 520 U.S. 471, 480.)
Plaintiffs’ construction would allow a party to prevail
based solely on proof of racially polarized voting that could not
be remedied or ameliorated by any other electoral system.
Moreover, such a construction would render the word “dilution”
in Elections Code section 14027 surplusage. Accordingly, we
agree with the Court of Appeal that dilution is a separate
16
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
element under the CVRA. 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.” (Reno v. Bossier Parish School Bd., supra, 520 U.S. at
p. 480.)
2. “The Ability . . . to Elect Candidates of Its Choice”
The CVRA does not explicitly define what it means to
“impair[] the ability of a protected class to elect candidates of its
choice.” (Elec. Code, § 14027.) On this question, we find the
VRA illuminating, but not dispositive.
An at-large electoral system impairs a protected class’s
ability “to elect representatives of their choice” under the federal
act (52 U.S.C. § 10301(b)) only when the class can “demonstrate
that it is sufficiently large and geographically compact to
constitute a majority in a single-member district.” (Gingles,
supra, 478 U.S. at p. 50.) The rationale for the VRA approach is
that “if the minority group is spread evenly throughout a
multimember district, or if, although geographically compact,
the minority group is so small in relation to the surrounding
white population that it could not constitute a majority in a
single-member district, these minority voters cannot maintain
that they would have been able to elect representatives of their
choice in the absence of the multimember electoral structure.”
(Gingles, at p. 50, fn. 17.)
For some period after Gingles, it was uncertain whether
the first Gingles requirement (i.e., whether the minority group
is sufficiently large and compact) could be satisfied by proof that
the minority population “is large enough to elect the candidate
of its choice with help from voters who are members of the
17
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
majority and who cross over to support the minority’s preferred
candidate.” (Bartlett v. Strickland (2009) 556 U.S. 1, 13 (plur.
opn. of Kennedy, J.) (Strickland).) Strickland settled the
question. It held that the VRA does not impose “a duty to give
minority voters the most potential, or the best potential, to elect
a candidate by attracting crossover voters.” (Strickland, at p. 15
(plur. opn. of Kennedy, J.).) Dispensing with the requirement
that the minority group, by itself, be sufficiently large and
compact to constitute a majority in the hypothetical district, the
court reasoned, “would call in question the Gingles framework.”
(Strickland, at p. 16 (plur. opn. of Kennedy, J.).)
The Court of Appeal effectively embraced the Strickland
approach in construing the CVRA. It required a showing that
Latino voters could constitute a majority, all by themselves, in
a hypothetical single-member district. Indeed, it noted that “30
percent is not enough to win a majority” and rejected plaintiffs’
contention that an ability to elect a preferred candidate could be
shown in this case if non-Latino voters were to “ ‘cross over’ and
vote for Latino candidates, buoying Latino power and clearing
the 50 percent threshold to electoral success.”
The Court of Appeal erred in importing the VRA’s
majority-minority requirement into the CVRA. In enacting the
CVRA, the Legislature wanted to make it “easier” for protected
classes to demonstrate an ability to elect their preferred
candidates under an alternative voting system. (Assem. Com.
on Elections, Reapportionment and Const. Amends., Analysis of
Sen. Bill No. 976, supra, as amended Mar. 18, 2002, p. 4.) No
longer would plaintiffs need to show the protected class was
sufficiently large and geographically compact to muster a
majority in a hypothetical district: “The fact that members of a
protected class are not geographically compact or concentrated
18
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
may not preclude a finding of racially polarized voting, or a
violation of Section 14027 and this section . . . .” (Elec. Code,
§ 14028, subd. (c); see Sen. Com. on Elections and
Reapportionment, Analysis of Sen. Bill No. 976 (2001–2002 Reg.
Sess.) as amended May 1, 2001, p. 3 [“Unlike the preconditions
established by the Supreme Court in Thornburg v. Gingles, this
bill does not require that the minority community be
geographically compact or concentrated”]; Assem. Com. on
Elections, Reapportionment and Const. Amends., Analysis of
Sen. Bill No. 976, supra, as amended Mar. 18, 2002, p. 4 [“This
bill requires that only two of those [Gingles] conditions be met”].)
The Legislature’s rationale for rejecting the majority-
minority requirement seems clear enough: It would make little
sense to require CVRA plaintiffs to show that the protected class
could constitute a majority of a hypothetical district, given that
the CVRA is not limited to ability-to-elect claims nor are its
remedies limited to district elections. (See, e.g., Sanchez v. City
of Modesto (2006) 145 Cal.App.4th 660, 670 [“In a cumulative
voting system, a politically cohesive but geographically
dispersed minority group can elect a single candidate . . .
although it would be unable to elect any candidates in a
conventional winner-take-all at-large system and could not form
a majority in any feasible district in a district system”].) Though
the parties have focused in this court on district elections, the
trial court found that, in addition to district elections, several
alternative at-large election methods — cumulative voting, 6
6
Under cumulative voting, “a voter receives as many votes
as there are candidates to elect, but may cast multiple votes for
a single candidate.” (Portugal v. Franklin County (Wn. 2023)
530 P.3d 994, 1002 (Portugal).)
19
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
limited voting, 7 and ranked choice voting 8 — would each
enhance Latino voting power and their ability to elect
candidates of their choice. None of these methods would require
a winning candidate to muster a majority in a hypothetical
district. We can think of no reason why a CVRA claim based on
any of these alternate at-large election methods should depend
on such a showing. (Cf. Elec. Code, § 14028, subd. (c) [“that
members of a protected class are not geographically compact or
concentrated . . . may be a factor in determining an appropriate
remedy”].) Furthermore, the Legislature clearly intended to
make the CVRA more expansive than the VRA — by, for
example, explicitly recognizing claims based on dilution of the
“ability to influence the outcome of an election.” (Elec. Code,
§ 14027.)
Even in the context of district elections, the Court of
Appeal’s focus on a majority-minority district was misguided.
The Court of Appeal feared that allowing a plaintiff to rely on
crossover votes “arbitrarily embraces racially polarized voting
when it helps and abandons it when it hurts,” which it viewed
as creating “a manipulable standard boiling down to plaintiff
7
Under limited voting, “a voter receives fewer votes than
there are candidates to elect.” (Portugal, supra, 530 P.3d at
p. 1002.)
8
Under ranked choice voting, a voter ranks candidates in
order of preference. If no candidate has a majority of first-place
votes, then the candidate with the least number of votes is
eliminated and that candidate’s ballots are reviewed for the
voter’s second choice. The process continues until only two
candidates remain, and the candidate with the greater number
of votes is declared the winner. (Portugal, supra, 530 P.3d at
p. 1002; see Kohlhaas v. State (Alaska 2022) 518 P.3d 1095,
1102.)
20
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
always wins.” But far from embracing racially polarized voting
“when it helps” and abandoning it “when it hurts,” plaintiffs are
merely pointing out the differing effects of racially polarized
voting in two different settings. To challenge an at-large
electoral system, a plaintiff must first demonstrate the existence
of racially polarized voting — i.e., cognizable differences “in the
choice of candidates or other electoral choices that are preferred
by voters in a protected class, and in the choice of candidates
and electoral choices that are preferred by voters in the rest of
the electorate.” (Elec. Code, § 14026, subd. (e).) The plaintiff
must next show that the protected class would have the
potential to elect its preferred candidate or candidates under a
different electoral system (say, district elections). In calculating
the protected class’s voting strength under the alternative
system, the plaintiff does not “abandon[]” racially polarized
voting. Rather, the plaintiff must prove that, assuming the
same degree of racial polarization, the greater concentration of
protected class voters in the hypothetical district would
nonetheless be sufficient to enable them to elect their preferred
candidate when combined with the available crossover votes.
Alternatively, the plaintiff may be able to demonstrate sufficient
voting strength where racially polarized voting by other voters
in the hypothetical district is lower than in the community as a
whole. In neither instance is the plaintiff seeking to “abandon”
racially polarized voting “when it hurts.”9
9
We recognize that where there is complete racial
polarization, the protected class may itself need to make up a
majority of the district in order to have an ability to elect its
preferred candidate. But “ ‘[i]n practice, such extreme conditions
are never present.’ ” (Strickland, supra, 556 U.S. at p. 45 (dis.
21
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
The City’s position in this court is slightly more nuanced,
but no more persuasive. The City allows that there may be
“room to expand vote-dilution claims beyond section 2’s narrow
ambit,” but only “where the relevant minority group would
account for a near-majority of voters in a hypothetical district
with a history of reliable crossover support from other voters.”
The City does not dispute, however, that defining a near
majority presents a new set of line-drawing problems. And in
any case the CVRA permits consideration of at-large remedies
such as cumulative voting, limited voting, or ranked choice
voting — none of which would depend on the existence of a near
majority in some hypothetical district that would never be
drawn or used.
These omissions counsel against adoption of the City’s
position. Rather than quibble over whether a protected class
falls on one side or the other of an undefined near-majority line,
we think it more sensible to inquire directly whether the
prospect of crossover support from other voters under a lawful
alternative electoral scheme would offer the protected class,
opn. of Breyer, J.) [“No voting group is 100% cohesive”]; see id.at pp. 32–33 (dis. opn. of Souter, J.) [“of course minority voters
constituting less than 50% of the voting population can have an
opportunity to elect the candidates of their choice, as amply
shown by empirical studies confirming that such minority
groups regularly elect their preferred candidates with the help
of modest crossover by members of the majority”].) As the high
court has acknowledged, “there are communities in which
minority citizens are able to form coalitions with voters from
other racial and ethnic groups, having no need to be a majority
within a single district in order to elect candidates of their
choice.” (Johnson v. De Grandy (1994) 512 U.S. 997, 1020 (De
Grandy).)
22
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
whatever its size, the potential to elect its preferred candidate.
When the hypothetical alternative is district elections, a high
degree of racially polarized voting may, in many cases,
effectively require the protected class to constitute a substantial
or very substantial minority of voters. The higher the degree of
racial polarization, the greater the percentage required by the
protected class to demonstrate it would be able, in combination
with crossover voters, to elect its preferred candidate. But there
is no reason to layer this inquiry with an additional predicate
showing of some undefined near majority. All that is required
is that the protected class be “sufficiently large . . . to elect
candidates of its choice,” even if it falls short of “an absolute
majority of the relevant population.” (De Grandy, supra, 512
U.S. at pp. 1008, 1009.)10
We are also sensitive to the fact that Gingles’s majority-
minority requirement is a poor fit for the CVRA, which applies
exclusively to nonpartisan elections. (See Cal. Const., art. II,
§ 6.) In the City, for example, multiple candidates may vie for
office, and a plurality can be sufficient to win. Requiring a
protected class to demonstrate it could constitute a majority or
near-majority of a hypothetical district would impose a
10
An amicus curiae letter submitted in support of Pico
Neighborhood Association’s petition for review by the chairs of
the Assembly’s Latino, Black, and Asian and Pacific Islander
caucuses recites that while some members were elected in
majority-minority districts, many others were elected in
districts in which their membership group made up only 20 to
40 percent of the eligible voters. The trial court here similarly
found that candidates from minority groups who had been
“unsuccessful in at-large elections have won district elections”
in districts “where the minority group is one-third or less of a
district’s electorate.”
23
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
threshold far higher than what the protected class’s preferred
candidate would actually need to be elected. (See Romero v. City
of Pomona (9th Cir. 1989) 883 F.2d 1418, 1424, fn. 7 [“Less than
a majority, of course, might suffice in a district where candidates
are elected by plurality”], overruled on other grounds in
Townsend v. Holman Consulting Corp. (9th Cir. 1990) 929 F.2d
1358, 1363.) We therefore decline to require a protected class
demonstrate it would constitute a majority or near majority of a
hypothetical district in all circumstances.
3. “Dilution” of “the Ability . . . to Elect Candidates of
Its Choice”
Accordingly, 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. (Gingles, supra, 478 U.S. at p. 50, fn. 17.) One way to
demonstrate the class’s potential to elect its preferred
candidates would be to show, as the VRA requires, that the class
would be “sufficiently large and geographically compact to
constitute a majority in a single-member district.” (Gingles, at
p. 50.) But that is not the only way. (See Elec. Code, § 14028,
subd. (c).) Because the CVRA applies exclusively to nonpartisan
elections, where there may be more than two candidates, the
winner may prevail with far less than a majority of the vote.
Moreover, the protected class may be able to demonstrate its
ability to attract crossover votes for its preferred candidate.
Finally, a plaintiff may identify nondistrict remedies that would
enable the class, on its own or with the assistance of crossover
votes, to elect its preferred candidate. The minority population
percentage necessary to win an election under some alternative
at-large electoral systems — cumulative or ranked-choice
24
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
voting, for example — may be less than 25 percent. (See Dillard
v. Chilton County Bd. of Education (M.D.Ala. 1988) 699 F.Supp.
870, 874 (Dillard) [“in a jurisdiction with seven seats, the
threshold of exclusion[11] would be 12.5% plus” in a cumulative
voting system]; Mulroy, The Way Out: A Legal Standard for
Imposing Alternative Electoral Systems as Voting Rights
Remedies (1998) 33 Harv. C.R.-C.L. L.Rev. 333, 342 [threshold
for ranked-choice voting “is identical to that of cumulative
voting”].)
Determining whether the protected class has the potential
to elect its preferred candidate under some alternative system
requires a “ ‘functional’ analysis of the political process” in that
locality and a “ ‘searching practical evaluation of the “past and
present reality.” ’ ” (Gingles, supra, 478 U.S. at pp. 62–63.)
Courts should consider the totality of the facts and
circumstances of the particular case (see, e.g., Elec. Code,
§ 14028, subd. (e)), including the characteristics of the specific
locality, its electoral history, and “ ‘an intensely local appraisal
of the design and impact’ of the contested electoral mechanisms”
as well as the design and impact of the potential alternative
system. (Gingles, at p. 79; see Milligan, supra, ___ U.S. at p. ___
[216 L.Ed.2d at p. 75].) This fact-specific inquiry accords with
the legislative understanding that California is a large and
diverse state that needs a flexible approach to address our
changing demographics. (See Assem. Com. on Judiciary,
11
“The threshold of exclusion ‘is the percentage of the vote
that will guarantee the winning of a seat even under the most
unfavorable circumstances.’ ” (Dillard, supra, 699 F.Supp. at p.
874.) It “is calculated according to the following formula: 1/(1 +
number of seats available).” (U.S. v. Vill. of Port Chester
(S.D.N.Y. 2010) 704 F.Supp.2d 411, 450.)
25
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
Analysis of Sen. Bill No. 976, supra, as amended Apr. 9, 2002,
p. 2 [“In California, we face a unique situation where we are all
minorities”].)
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 (or
something close to that). In predicting how many candidates are
likely to run and what percentage may be necessary to win,
courts may also consider the experiences of other similar
jurisdictions that use district elections or other alternatives to
traditional at-large elections. 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.’ ” (Pope v. County of Albany (2d
Cir. 2012) 687 F.3d 565, 576; see Gingles, supra, 478 U.S. at
p. 50, fn. 17.)
At the remedial stage the focus will shift to which electoral
system is “appropriate” and “tailored to remedy the violation.”
(Elec. Code, § 14029.) If the court selects a district remedy, then
there must also be at least two public hearings before the maps
are drafted and at least two more hearings once the maps have
been drawn and published. (Id., § 10010, subds. (a)(1), (2), (c).)
In other words, the remedy the court ends up selecting under
section 14029 may, but need not, be the benchmark the plaintiff
offered to show the element of dilution.
The Court of Appeal feared that failing to craft a majority-
minority requirement “would give a winning cause of action to
any group, no matter how small, that can draw a district map
26
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
that would improve its voting power by any amount, no matter
how miniscule.” To prove its point, the court offered a
hypothetical in which a protected class’s share of the electorate
could increase from 0.1 percent under an at-large system to 1.5
percent in a proposed district. Even though the group’s voting
power would increase 15-fold, it could have “no practical
numerical influence in any voting system” because there would
be “simply too few voters . . . to be numerically effective in an
environment of race-based voting.” This would, the Court of
Appeal warned, “merely ensure plaintiffs always win.”
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 it does not follow that a
majority (or near-majority) requirement should be judicially
engrafted onto the CVRA. After all, by eliminating Gingles’s
geographic compactness requirement, the Legislature rejected
any requirement that the protected class constitute a majority
of a hypothetical district. (See Elec. Code, § 14028, subd. (c).)
What enables courts to sort successful claims from unsuccessful
claims is the dilution element itself, which requires the plaintiff
to show that the protected class would, under some lawful
alternative, have a “real electoral opportunity” to elect its
candidate of choice, either on its own or with the aid of crossover
27
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
voters. (LULAC, supra, 548 U.S. at p. 428; see Pope v. County
of Albany, supra, 687 F.3d at p. 575, fn. 8.)12
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. (Cf. Georgia v. Ashcroft (2003) 539 U.S. 461, 479 [“in
examining whether the new plan is retrogressive, the inquiry
must encompass the entire statewide plan as a whole”].) While
“[t]he fact that the proposed remedy does not benefit all of the
[protected class] in the City does not justify denying any remedy
at all” (Gomez v. Watsonville (9th Cir. 1988) 863 F.2d 1407,
1414, italics added), it remains the plaintiff’s burden to
demonstrate that some lawful alternative method of election
would improve the protected class’s overall ability to elect its
preferred candidates. 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.
(Elec. Code, § 14027; cf. Beer v. United States (1976) 425 U.S.
130, 141 [“the purpose of § 5 [of the VRA] has always been to
12
Plaintiffs suggest it would be rare for a group constituting
less than 25 percent of the relevant voting population to make
the required showing. We have no occasion here to explore that
suggestion, since the Latino population in the proposed district
exceeds that threshold.
28
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
insure that no voting-procedure changes would be made that
would lead to a retrogression in the position of racial minorities
with respect to their effective exercise of the electoral
franchise”].)
We also reject the City’s contention that a majority-
minority requirement — or something close to it in the form of
a near-majority requirement — is necessary to avoid difficult
constitutional questions under the equal protection clause. In
the City’s view, it would be perilous for courts to draw race-
based districts in the absence of a compelling justification. (See
Cooper v. Harris (2017) 581 U.S. 285, 291–293.) Merely
increasing the percentage of minority voters in a hypothetical
district where “the increase will have no real-world effect,” the
City warns, is not a compelling justification. But the CVRA does
not require a court to grant relief that has no real world effect.
As stated above, the alternative voting system must offer the
protected class at least a “potential” to elect its preferred
candidates that did not exist under the at-large system.
(Gingles, supra, 478 U.S. at p. 50, fn. 17.) Moreover, nothing in
the CVRA requires a municipality or a court to select a district-
based remedy or, even if it chooses to do so, to draw district lines,
as the City contends, based “principally on race.” To the
contrary: California law directs that district boundaries comply
with the state and federal Constitutions (as well as the VRA)
(Elec. Code, § 21621, subd. (b)) and requires, to the extent
practicable, that boundaries be “geographically contiguous” and
maintain the integrity of “any local neighborhood or local
community of interest.” (Id., subd. (c)(1), (2).) State law also
encourages district lines to be drawn along “natural and
artificial barriers” and with “geographical compactness.” (Id.,
subd. (c)(3), (4).) The City does not explain how or why districts
29
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
drawn in accordance with the above criteria would run afoul of
the Constitution. (See Miller v. Johnson (1995) 515 U.S. 900,
916 [“legislatures will . . . almost always be aware of racial
demographics”]; cf. ibid. [strict scrutiny applies only where “race
was the predominant factor motivating the legislature’s
decision” and “the legislature subordinated traditional race-
neutral districting principles, including but not limited to
compactness, contiguity, and respect for political subdivisions or
communities defined by actual shared interests, to racial
considerations”].) Indeed, assuming lines are drawn “based on
proper factors,” whether to create a district where a protected
class has the potential to elect its candidate of choice is “a matter
of legislative choice or discretion.” (Strickland, supra, 556 U.S.
at p. 23 (plur. opn. of Kennedy, J.); see Higginson v. Becerra (9th
Cir. 2019) 786 Fed.Appx. 705, 707–708.) That’s precisely the
choice the Legislature made in enacting the CVRA: “An at-large
method of election may not be imposed or applied in a manner
that impairs the ability of a protected class to elect candidates
of its choice . . . .” (Elec. Code, § 14027.)
4. “Dilution” of “the Ability . . . to Influence the
Outcome of an Election”
Unlike its federal analogue, the CVRA prohibits the use of
an at-large electoral system that dilutes not only the ability of a
protected class “to elect candidates of its choice,” but also “its
ability to influence the outcome of an election.” (Elec. Code,
§ 14027.) The inclusion of the latter phrase further supports our
conclusion that the CVRA cannot be read in the limited manner
the City would like; indeed, the influence prong suggests a focus
broader than the class’s ability to elect its preferred candidates
(with or without the help of crossover voters). (Cf. Strickland,
supra, 556 U.S. at p. 13 (plur. opn. of Kennedy, J.) [“a minority
30
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
group can influence the outcome of an election even if its
preferred candidate cannot be elected”]; LULAC, supra, 548
U.S. at pp. 445–446 (plur. opn. of Kennedy, J.) [distinguishing
between a group’s “ability to influence the outcome [of an
election] between some candidates, none of whom is their
candidate of choice,” and the ability to elect “their candidate of
choice”]; 10 Ill. Comp. Stat. 120/5-5(b) [“The phrase ‘influence
district’ means a district where a racial minority or language
minority can influence the outcome of an election even if its
preferred candidate cannot be elected”].) As the Attorney
General (who is appearing in this action as amicus curiae)
suggests, a protected class’s ability to influence the outcome of
an election could include, for example, “forming a coalition with
another group to elect a candidate acceptable to each” or
“blocking an unacceptable candidate.”
We need not decide the scope of the CVRA’s ability-to-
influence prong in this case, however. Plaintiffs did not argue
in the trial court or in this court an influence theory distinct
from their claim that the City’s at-large election system diluted
their ability to elect their candidates of choice.
III. CONCLUSION
A group’s ability “to compete successfully at electoral
politics, in short, is often dependent on how the competition is
structured.” (Engstrom, supra, 21 Stetson L.Rev. at p. 743.)
The CVRA represents the Legislature’s effort to make that
competition more fair. It bars the use of an at-large method of
election if that method dilutes a protected class’s ability to elect
candidates of its choice or its ability to influence the outcome of
an election. Dilution occurs when an at-large system denies a
protected class the potential to elect its preferred candidate or
31
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
influence the election’s outcome. The plaintiff in a CVRA action
must identify a lawful alternative to the existing at-large
electoral system that will serve as the benchmark undiluted
voting system.
A protected class has the ability to elect its preferred
candidate if it would have the potential to elect that candidate,
on its own or with the assistance of crossover support from other
voters, under an alternative voting system; there is no
additional requirement that the protected class constitute a
majority or near-majority of a hypothetical district. A court
presented with a dilution claim should undertake a searching
evaluation of the totality of circumstances (see, e.g., Elec. Code,
§ 14028, subd. (e)), including the characteristics of the specific
locality, its electoral history, and the design and impact of the
at-large system as well as the potential impact of lawful
alternative electoral systems. In predicting how many
candidates are likely to run and what percentage may be
necessary to win, courts may also consider the experiences of
other similar jurisdictions that use district elections or some
method other than traditional at-large elections.
We express no view on the ultimate question of whether
the City’s at-large voting system is consistent with the CVRA.
The parties vigorously contested in the Court of Appeal whether
plaintiffs had established two elements of a CVRA claim:
whether voting in city council elections was racially polarized
and whether the at-large method of election diluted the voting
power of Latino residents in those elections. Because the Court
of Appeal concluded that plaintiffs had failed to demonstrate
dilution of the Latino vote, it did not consider whether voting in
council elections was racially polarized. We have determined
that the Court of Appeal relied on an incorrect legal standard to
32
PICO NEIGHBORHOOD ASSOCIATION v. CITY OF SANTA MONICA
Opinion of the Court by Evans, J.
conclude that plaintiffs had failed to satisfy the dilution element
of their CVRA claim. Under the circumstances, we find it
appropriate to remand 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. (See Central Coast Forest Assn. v. Fish & Game Com.
(2017) 2 Cal.5th 594, 606.)
DISPOSITION
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with our opinion.
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
33
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Pico Neighborhood Assn. v. City of Santa Monica
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 51 Cal.App.5th 1002Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S263972
Date Filed: August 24, 2023
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Yvette M. Palazuelos
__________________________________________________________
Counsel:
Lane Dilg, City Attorney, George Cardona, Interim City Attorney;
Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Marcellus A.
McRae, Kahn A. Scolnick, Tiaunia N. Henry and Daniel R. Adler for
Defendant and Appellant.
Cole Huber and Derek P. Cole for League of California Cities and
California Special Districts Association as Amici Curiae on behalf of
Defendant and Appellant.
Strumwasser & Woocher, Bryce A. Gee and Caroline C. Chiappetti for
The Santa Monica Transparency Project as Amicus Curiae on behalf of
Defendant and Appellant.
John K. Haggerty as Amicus Curiae on behalf of Defendant and
Appellant.
The Law Office of Joseph Pertel, Joseph A. Pertel; and Christopher M.
Harding for League of Women Voters of Santa Monica, Alliance of
Santa Monica Latino and Black Voters, Human Relations Council
Santa Monica Bay Area and Community for Excellent Public Schools
as Amici Curiae on behalf of Defendant and Appellant.
Shenkman & Hughes, Kevin I. Shenkman, Mary R. Hughes, Andrea A.
Alarcon; Law Office of Robert Rubin, Robert Rubin; Goldstein, Borgen,
Dardarian & Ho, Morris J. Baller, Laura L. Ho, Anne P. Bellows,
Ginger L. Grimes; Parris Law Firm, R. Rex Parris, Ellery S. Gordon;
Law Offices of Milton C. Grimes, Milton C. Grimes; Schonbrun Seplow
Harris & Hoffman, Paul Hoffman and John Washington for Plaintiffs
and Respondents.
Panish Shea & Boyle and Brian Panish for Richard Polanco, Sergio
Farias, Juan Carrillo, Richard Loa and Austin Bishop as Amici Curiae
on behalf of Plaintiffs and Respondents.
Hogan Lovells US, Ira M. Feinberg, Erin Chapman, Zach Martinez,
Patrick C. Hynds, Derek Centola and Joseph M. Charlet for FairVote
as Amicus Curiae on behalf of Plaintiffs and Respondents.
Greenberg Glusker Fields Claman & Machtinger, Douglas E. Mirell
and Michelle A. Mabugat for Sara Sadhwani, Bernard Fraga, Janelle
Wong, Marisa Abrajano, Jason Casellas, Lorrie Frasure, Matthew
Mendez Garcia, Christian Grose, Eric Gonzalez Juenke, Jane Junn,
Taeku Lee, Gabriele Magni, Jennifer Merolla, Melissa Michelson,
Jessica Lavariega Monforti, Jason Morin, Ricardo Ramírez, Paru Shah,
LaFleur Stephens, Dara Strolovitch, Christopher Towler and Tom
Wong as Amici Curiae on behalf of Plaintiffs and Respondents.
UCLA Voting Rights Project, Chad W. Dunn and Sonni Waknin for
Matt Barreto, Lorrie Frasure, Chelsea Jones, Natalie Masuoka, Gary
Segura, Efrén Pérez and Chris Zepeda-Millán as Amici Curiae on
behalf of Plaintiffs and Respondents.
Keker, Van Nest & Peters, R. Adam Lauridsen and Connie P. Sung for
Asian Americans Advancing Justice–Asian Law Caucus, Asian
Americans Advancing Justice–Los Angeles and Asian Law Alliance as
Amici Curiae on behalf of Plaintiffs and Respondents.
Rosenfeld Meyer & Susman and Todd W. Bonder for Oscar de la Torre
as Amicus Curiae on behalf of Plaintiffs and Respondents.
Lowenstein & Weatherwax, Nathan Lowenstein and Kenneth J.
Weatherwax for Bruce A. Wessel as Amicus Curiae.
Rob Bonta, Attorney General, Jonathan L. Wolff, Chief Assistant
Attorney General, Heather Hoesterey and Kristin A. Liska, Deputy
Attorneys General, for the Attorney General as Amicus Curiae.
Stephen Bosworth and L. Stevan Leonard as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Theodore J. Boutrous, Jr.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804
Kevin I. Shenkman
Shenkman & Hughes
28905 Wight Road
Malibu, CA 90265
(310) 457-0970