Pico Neighborhood Assn. v. City of Santa Monica

Filed 9/20/23

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

ORDER MODIFYING OPINION

THE COURT:

The opinion in this matter, filed on August 24, 2023, and

appearing at 15 Cal.5th 292, is modified as follows:

The text of footnote 8 on page 317 of the opinion is deleted

in its entirety and replaced with the following:

Under ranked choice voting, a voter ranks

candidates in order of preference. In an election

to fill more than one seat, such as for a city

council, each ballot is counted at the start of

1

tabulation as one vote for its first-choice ranked

candidate. Any candidate with more votes than

the election threshold (see fn. 11, post) is declared

elected. If the first round of the vote counting

does not fill all the seats, then the system

consults the next-ranked choices from the ballots

supporting the candidate with the least number

of votes, the next-ranked choices from the surplus

ballots (i.e., those in excess of what was needed

for the elected candidate to win), or both.

Jurisdictions use a variety of methods to

determine when and how to transfer the next-

ranked choices from surplus ballots. This form of

tabulation continues until all seats are filled.

(See Tideman, The Single Transferable Vote

(Winter 1995) 9 J. Econ. Persp. 27, 27–28, 32–35;

see generally Note, The Madisonian Case for

Ranked Choice Voting: Federalist No. 10,

Preferential Voting, and the American Democratic

Tradition (2021) 23 N.Y.U. J. Legis. & Pub. Pol’y

953, 963.)

This modification does not affect the judgment.

Nonparty David A. Holtzman’s request for modification of

the opinion is denied.

2

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

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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).

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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

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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.

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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

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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

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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.

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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

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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

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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.)

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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

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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.)

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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).)

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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).)

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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

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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

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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

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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

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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).)

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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.)

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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.

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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).)

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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.”

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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

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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.)

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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

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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

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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.

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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

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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

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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 1002

Review 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