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Plaintiffs in Voting Rights Case Ask Court to Strike Opposing Brief

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By Jorge Casuso

July 9, 2021 -- The plaintiffs in the voting rights lawsuit against Santa Monica have asked the California Supreme Court to strike a brief on behalf of the City that argues for the use of federal standards to determine a key issue in the case.

In their motion filed Thursday, the plaintiffs argue that the four organizations that filed the Amicus Curiae Brief "lack the legal capacity to convey (their) views to the Court."

The brief -- written by attorneys Chris Harding and Joseph Pertel -- was filed by the League of Women Voters of Santa Monica, the Alliance of Santa Monica Latino and Black Voters, the Human Relations Council Santa Monica Bay Area and Community for Excellent Public Schools.

Kevin Shenkman, the attorney who represents the Latino plaintiffs, said a search of State and Federal databases confirmed his suspicion that "some of these purported organizations may have been conjured up by Mr. Harding and Mr. Pertel."

"Based on my queries, it appears that two of those purported organizations have never existed, and one other is not in good standing with the California Secretary of State," Shenkman wrote in his motion.

Except for the League, Shenkman wrote, the three other organizations are "merely high-minded sounding titles for private individuals who seek to advance their personal views or agendas cloaked behind those impressive-sounding names."

Shenkman argues that "the filing of an amicus curiae brief purporting to express the views of organizations that lack the legal capacity to convey those views to the Court, deprives the Court of the ability to evaluate that brief fully and accurately."

The brief filed on June 7 by Harding and Pertel echoes the City's position that Latino voters have regularly elected both Latino candidates and Latino-preferred candidates under the current at-large system.

And like the City, it contends that switching to district elections would reduce Latino voting power.

But the 63-page brief also focuses on an argument the City has not developed at length -- that the standards for voter dilution set by the Federal Voting Rights Act and upheld by the U.S. Supreme Court should "inform" the key issue in the Santa Monica case.

"Since the mid-1980s, the United States Supreme Court’s opinions addressing the FVRA have used rough proportionality to assess vote dilution, either as a 'baseline' or as a factor entitled to 'great weight,'" Harding and Pertel wrote.

"Rough proportionality considers the success of candidates preferred by protected-class voters compared to the percentage of protected-class voters in the jurisdiction," according to the brief.

Using that standard, "Latino-preferred City Council candidates won 13 of 16 contested City Council elections involving a Latino-preferred candidate (81.25 percent)," according to the brief.

"Amici have found nothing in the CVRA’s legislative history supporting the notion that the CVRA was intended to deviate from the FVRA case law’s rough proportionality baseline," the brief said.

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