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Court Offers No Clear Path on District Voting

Response to the eagerly awaited California Supreme Court decision in a Santa Monica voting rights lawsuit was lackluster for those in Burbank who hoped the case would lead to the defeat of the city’s efforts to transition to by-district City Council voting.

The case, which might set legal precedent for future municipal election disputes, was recently sent back to the court of appeal, California’s second highest court, by the state Supreme Court.

The Pico Neighborhood Association won the suit against the city of Santa Monica in trial court, which in 2018 ruled that the city’s current at-large voting system for councilmembers diluted Latino voters’ voices and ordered the city to adopt a vote by district system.

But Santa Monica appealed the trial court’s decision and won in the court of appeal in 2020, at which point, the case was submitted for review to the state Supreme Court. The Supreme Court recently sent the case back to the court of appeal, saying it “misconstrued” the California Voting Rights Act.

Burbank could find itself in a similar court battle if its efforts to replace at-large voting with by-district elections fail. The transition from the current at-large voting system to an arrangement with five City Council districts was forced upon the panel after the city received a notice in August of a potential violation of the CVRA. The letter — sent on behalf of a Burbank voter, Nick Gutierrez — included a demand that the city change its voting system to a by-district approach.

Gutierrez’s legal representation did not respond to the Leader’s request for comment.

The Council had little choice but to jumpstart the districting process, as doing so protects the city from litigation for a short time. They voted unanimously in January to issue a resolution of intent to change to by-district elections, triggering a 90-day “safe harbor” period to forestall litigation.

After receiving an inquiry from the Leader, the city attorney’s office would not speculate as to how the decision could affect Burbank’s districting process, but instead advised that the public look forward to a City Council meeting later this month.

“The public can continue to follow the Burbank City Council’s ongoing discussion of a potential transition to district elections with the introduction of two relevant ordinances forecast on Council’s Sept. 12 agenda,” said Jill Vander Borght, a senior assistant city attorney, who is project manager of the city’s districting efforts.

The ordinances that will be considered at the upcoming meeting could lead to the Council adopting a five-district map and sequencing of elections to transition City Council elections from at-large to by-district elections, and another amending the elections provisions of the Burbank Municipal Code to align with by-district elections.

The Council has finished an extensive series of Council hearings and community forums and considered 39 maps in total as part of the exploration of by-district election formats. The Council has narrowed its focus down to five versions of one map, dubbed map 130.

But none of Burbank’s councilmembers say they are fully on board with district voting yet. They could still choose to maintain the city’s at-large format.

Earlier this year, Vice Mayor Nick Schultz said that he was interested in following Santa Monica’s efforts in the Supreme Court to see if a final decision could be struck, but now a final decision in that case could yet be years away.

Ultimately, the Supreme Court’s decision left spectators without a clear victor, as the burden was placed back onto the plaintiffs while the court of appeal’s past decision was also reversed.

Speaking generally about the Santa Monica ruling and not specific to Burbank, Doug Johnson, a demographer with the National Demographics Corporation, said, “At its core, the ruling is that the city and the appeal court are correct that a plaintiff in a CVRA case must prove that at-large voting dilutes the voting power of the protected class voters (in addition to showing that racially polarized voting exists), but also that the plaintiffs are correct that the appeal court’s standard for identifying dilution was the wrong standard.”

NDC is the city’s contracted demographer for districting. Johnson has been present at each of Burbank’s public hearings and community forums.

“The court listed a broad set of options for how plaintiffs may show dilution of protected class voter strength, but heavily emphasized that such analysis is a comprehensive ‘totality of factors’ analysis specific to the jurisdiction in question. The ruling also puts a heavily reliance on considering ‘lawful alternative electoral systems’ without clearly defining that term, so even what falls into that category will be a major issue that hopefully the court will clarify in the future,” Johnson said.

The city of Glendale is also in the process of pursuing a switch to districting. Glendale city attorney, Mike Garcia, recently mirrored Johnson’s sentiments.

“I hesitate to say there is a victor and a loser because, although it did reverse the decision of the court of appeal, it did remand it back to the court of appeal for further analysis,” Garcia said at a Glendale City Council meeting this week.

Now the Santa Monica case will return to the appeal court for reconsideration, and there is a good chance the appeal court will send it back to the original trial court, Johnson said. The already 7-year-old case is still years from resolution, and certainly won’t be resolved in time for Burbank to make its decision on districting.

The Sept. 12 meeting of the City Council is expected to shed more light on the Council’s intentions as the city approaches critical deadlines in the districting process.

First published in the September 2 print issue of the Burbank Leader.

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