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New Council Could Have Votes to End Voting Rights Lawsuit

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Editor's note: This story has been revised to include a response from the City and updated quotes from election attorney Fred Woocher.

By Jorge Casuso

November 12, 2020 -- A voting rights lawsuit that has wound its way up the court system for four and a half years could swiftly come to an end after three incumbents were ousted by Santa Monica voters this month.

The three winning challengers -- Phil Brock, Christine Parra and Oscar de la Torre -- have all expressed support for voting districts staunchly opposed by the losing incumbents.

It is unclear whether de la Torre would need to recuse himself from the vote, since he headed the Pico Neighborhood Association (PNA), which is a plaintiff in the case, and his wife, Maria Loya, is the lead plaintiff.

“We are analyzing and will discuss with Mr. de la Torre the potential conflict issues posed by his and his wife’s active involvement in the election litigation," said Interim City Attorney George Cardona.

"In that litigation, a Court of Appeal ruling in favor of the City is being reviewed by the California Supreme Court based on a petition filed by the plaintiffs,” Cadona said.

Brock and de la Torre told the Lookout this week they would support settling the lawsuit filed by Latino activists, which was taken up last month by the California Supreme Court ("Supreme Court Takes Up Voting Rights Lawsuit," October 21, 2020).

"I believe the city should have instituted district elections when asked, thereby avoiding this lawsuit," said Brock, who finished first in the November 3 race for four full-term seats.

"Echoing my first sentence, I think the lawsuit never should have been initiated, and a negotiated settlement and the process towards district elections should begin," Brock said.

De la Torre agreed. "I think we should settle this lawsuit," he said. "I don't think another penny should be spent fighting it."

Parra, who finished second in the Council race, did not respond to the Lookout's request for comment but has gone on record supporting district elections.

If she joins Brock and de la Torre can vote on the case, Councilmember Kristin McCowan could become the swing vote in deciding whether to settle a lawsuit backed by civil rights leaders and organizations ("Voting Rights Lawsuit Pits Progressive Leaders Against Santa Monica," September 23, 2020).

McCowan -- along with Mayor Kevin McKeown and Council member Gleam Davis -- declined to discuss her position on the ongoing litigation. Councilmember Sue Himmelrich did not respond to a request for comment.

"Unfortunately given the pending litigation I cannot respond to inquiries related to litigation strategy," McCowan wrote in an email to the Lookout.

McCowan -- who retained the seat she was appointed to in August in an uncontested election -- is the only current Council member who has not voted on the lawsuit.

The newly elected Council members will be sworn in on December 8, said City Clerk Denise Anderson-Warren.

The Supreme Court has ordered the parties to file their opening briefs by December 21, after the Latino plaintiffs appealed an Appellate Court decision in July upholding the City's at-large election system.

In an open letter in May, plaintiffs' attorney Kevin Shenkman invited the Council "to make the right decision" and "drop the ill-conceived appeal" ("An Open Letter to the Santa Monica City Council," May 8, 2020).

Shenkman -- who made the settlement offer shortly after the Council was forced to slash its budget due to the coronavirus shutdown -- estimates the City has spent more than $10 million on its high-powered law firm Gibson Dunn & Crutcher.

He offered to help implement the district elections ordered by the Los Angeles Superior Court and "be reasonable in accommodating the City’s payment of our attorneys’ fees."

Shenkman said on Wednesday that his offer stands.

"I have said I would be reasonable with the attorneys fees and costs that should never have been incurred," he said.

The Council "should fire Gibson and Dunn and indicate they no longer believe they should fight the case."

City officials note that Shenkman initiated the lawsuit and that the City won the latest ruling by the Appelate Court, which found Santa Monica's at-large voting system does not discriminate against Latino voters ("Santa Monica's Election System Does Not Violate Latino's Voting Rights, Appeals Court Rules," July 9, 2020).

They also note that Shenkman filed a public request in June 2019 seeking $22.3 million in attorneys fees and expenses ("Voting Rights Attorneys Seek More Than $22 Million in Legal Costs," June 4, 2019).

The request came after Superior Court Judge Yvette M. Palazuelos ruled in favor of the plaintiffs and ordered the City to implement a district system ("Judge Orders Special District Elections for Council in Final Ruling," February 15, 2019).

Shenkman believes de la Torre can vote on the lawsuit because he and Loya don't stand to benefit financially from the outcome of the case.

Fred Woocher, an attorney who specializes in election law, called de la Torre's involvement in the case "problematic."

Woocher said he would likely advise de la Torre to recuse himself to avoid the "appearance" of a conflict.

"Wherever you draw the line" on financial interest, Woocher said, "people will say you can't rule on a lawsuit where a party is your wife."

De la Torre, who has served on the School Board since 2002, said he intends to vote on the case.

"There's four of us that didn't put this on," he said referring to the Council's unanimous decision to fight the lawsuit.

"I hope this City Council reverses course."

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