Sometimes the best judge of which side has the better legal argument is someone who doesn't care one way or the other about the outcome.
Of course, all judges are supposed to be impartial. But judges are people. They have ideologies. They have beliefs. Sometimes those ideas come into play when adjudicating a case. Sometimes for the better, sometimes for the worse.
But for the moment, I'm just talking about deciding whether one side has the better argument as a matter of legal doctrine. For that, it's probably better to view the dispute without preconceived views about the underlying merits.
I say that because this idea came to mind when reading this opinion by Justice Wiley today. It's a high-profile case. You'll read more about it in legal newspapers, most likely. The Court of Appeal reverses the trial court and holds that Santa Monica isn't required to move from at-large voting for council members to district-level voting. The 50-page opinion discusses at length both the history of voting in Santa Monica as well as the racial and other impacts of at-large versus other ways of filling elected municipal positions.
As for style, it's another classic Justice Wiley opinion. Crisp and clean. A plethora of one-sentence paragraphs. As for legal analysis, there's lots to commend the opinion. It's not ruthlessly one-sided, and understands and appreciates that -- as with many things -- the concepts at issue are often shades of gray.
I mention neutrality and disinterestedness at the outset of this post because that's where I personally come from on this topic. I'm genuinely agnostic as to the merits of at-large versus district voting. I see the advantages and disadvantages of both. For example, as a general matter, at large voting often does make minority representation more difficult to achieve. At the same time, district level voting creates problems of defining districts (gerrymandering, etc.) as well as may often enhance not-in-my-backyard effects as each district's official opposes socially beneficial but perceived individually deleterious programs like affordable housing, substance abuse treatment centers, etc.
All of these things Justice Wiley discusses in his erudite 50-page opinion. My only point: I see the arguments on both sides. On this policy issue, I don't have a strong view. Truly.
Because of that, I approach the legal doctrine questions raised by the litigation with an open mind. Extremely open.
On the legal doctrine front, there's much that Justice Wiley says that I find at least somewhat persuasive. But on the central, dispositive point -- what it means to be for a voting group to be "diluted" under the statute -- I find Justice Wiley's analysis amiss. Substantially so.
The statute at issue -- the California Voting Rights Act -- says that a plaintiff has to establish five elements to obtain relief under the statute: 1. Protected class;
2. Resident;
3. At-large voting;
4. Racially polarized voting; and
5. Dilution. Everyone agrees that, in the present case, plaintiffs have made out the first three elements, and there's a fair piece of evidence of the fourth as well (though Justice Wiley doesn't reach that issue). The focus -- at least for Justice Wiley -- is on the fifth: Dilution.
What does it mean for a group's voting rights to be "diluted"?
Justice Wiley rightly resorts to common dictionary definitions and says that word means to "weaken" something. "Pouring a quart of water into a quart of milk, for instance,
dilutes the milk to half strength." Yep. Exactly right.
Plaintiff says that at-large voting reduces Latino voting strength because that minority group only constitutes 13.64 percent of the voting age population, so whereas in a district-level scheme, Latino voters might well make up a substantial portion of that district's electorate -- and hence help them to elect Latino representatives -- an at-large system "dilutes" their ability to do so because their 13.64% doesn't mean much. So the at-large voting system makes the power of their votes weaker.
Justice Wiley responds that the Legislature didn't define what "dilution" means, but that this can't possibly be what they meant. He argues from a hypothetical, one that I found somewhat persuasive:
"Assume three facts: there are 3,000,000 voters in a city;
3,000 belong to a small racial group G; and all voters are racially
polarized in the sense voters will vote only for candidates of their
own race. In an at-large election, group G would constitute 0.1
percent of the electorate. Suppose we now switch from at-large
voting to voting in 15 districts, each with 200,000 voters, and we
draw the lines to maximize the voting power of group G. Now
one district incorporates all 3,000 voters of group G. Thus group
G would increase its voting power from 0.1 percent strength at
large to 1.5 percent in that district. A change from 0.1 to 1.5
percent is a 15-fold increase, which seems sizeable in relative
terms. This change would improve G’s “influence” as Pico would
define the term. But a group with a vanishingly small numerical
presence—be it .01 percent or 1.5 percent—can have no practical
numerical influence in any voting system. There are simply too few voters in group G to be numerically effective in an
environment of race-based voting.
To define “influence” as Pico proposes would merely ensure
plaintiffs always win."
Okay. I'm with you. It probably doesn't make sense to define "dilution" in such an overly broad fashion. Mind you: That's undoubtedly what the word means. It means "weaken" -- to any degree. The ocean is "diluted" when I pee in it. Sorry, but it is. So if we're going strictly by plain meaning, that's indeed what the statute says, so, yes, in Scalia World, plaintiff should win, even in Justice Wiley's hypothetical.
But I agree that this would go too far, and was not the Legislature's intent. So I'm willing to depart from the plain meaning of the term to avoid precisely the result that Justice Wiley posits through his hypothetical.
But from this, Justice Wiley pivots to what he thinks is the dispositive answer here. He says that just as in his hypothetical, here, Latino voters in Santa Monica similarly don't have their votes "diluted" because their share of the vote is similarly too small. He notes that even plaintiff's proposed districts would only give Latino voters a 30 percent share in any district. And he says that, as a matter of law, that's not enough to show dilution. "Assuming
race-based voting, 30 percent is not enough to win a majority and
to elect someone to the City Council, even in a district system.
There was no dilution because the result with one voting system
is the same as the result with the other: no representation.
Pico thus failed to show the at-large system was the reason
Latinos allegedly have had trouble getting elected to the City
Council. The reason for the asserted lack of electoral success in
Santa Monica would appear to be that there are too few Latinos
to muster a majority, no matter how the City might slice itself
into districts or wards. At-large voting is not to blame. Small
numbers are."
So the test for "dilution" for Justice Wiley is whether a group would otherwise have enough votes to "win a majority" in a district. So the test -- majority -- is 50.1 percent. Because, he says, you've got to assume racially polarized voting, with Latinos voting one way and non-Latinos voting the other way. And, if so, then absent 50.1% (a "majority"), Latinos won't win anyway, so there's no dilution. Justice Wiley says that plaintiff can't "arbitrarily embraces racially
polarized voting when it helps [on Prong 4] and [then] abandon it when it hurts [on Prong 5, dilution]."
Justice Wiley makes this implicit definition (50%) even clearer elsewhere in the opinion. For example, n his hypothetical in which he says plaintiffs would have a claim, the relevant minority group is indeed over 50%. He says:
"For our hypothetical, assume everyone votes strictly
according to group membership and, if possible, only for
candidates who are members of their own group. Further
assume one group has voting power of only 10 percent in a given
city but, within that city, the group’s voting power in
neighborhood X is 60 percent. If neighborhood X were a voting
district, the group could elect one of its own members as a district
representative. The 60 percent neighborhood voting power would
guarantee success. But now switch to at-large voting. This
switch defeats the group’s ability to elect anyone from its own
ranks, because 10 percent is not enough to win. Changing from
district to at-large voting under these circumstances would
weaken that group’s electoral success: the change would deny it
the ability it previously had to elect a member of its own group."
Okay. So I get that's the test. At least for Justice Wiley. To state a claim under the California Voting Rights Act, you've got to establish "dilution" -- which in turn means that you've got to show that a particular district would be "majority-minority" (over 50%) to prevail. Otherwise you couldn't get a minority candidate elected anyway. To repeat Justice Wiley, unless you've got a 50% district, "At-large voting is not to blame. Small numbers are."
That's where he loses me.
For one thing, I don't think the result follows from its predicate facts. Yes, there's (let's assume) racially polarized voting in Santa Monica. Which means, as plaintiff showed, that Latino voters disproportionately vote for Latino-surnamed candidates. That doesn't mean that every Latino voter votes for every Latino candidate, or that non-Latino voters never vote for Latino candidates. It's just "polarized," not definitional or necessarily conclusive. Which is the problem with Justice Wiley's theoretical and doctrinal move.
Imagine, for example, that we've got a district that's 30% Latino, and of the non-Latino voters, 40% are Democrats and 30% are Republicans. To make things simple, let's assume that voters vote in the following (quite racially polarized) manner: (1) Latinos always vote for Latino candidates, regardless of party; (2) Non-Latino Republicans never vote for Latino candidates, but as between Democrats and Republicans, always vote for the Republican, and (3) Non-Latino Democrats always vote for the Democrat (as between Democrats and Republicans), but are indifferent to Latino ethinicity.
What happens in that district? Justice Wiley's analysis assumes that Latinos won't win because they don't have a majority. But they definitely will. Take elections with classic primaries. (The same is true for jungle primaries, but I'll take the less complicated case just to prove the point more easily.) No Republican Latino will win the Republican primary, of course. But the Latino candidate will win the Democratic primary, since she'll get a majority of the vote: in a district with 1000 voters, she'll get the 300 Latino votes plus half of the 400 Democratic votes, for a total of 500, while her primary opponent will only get 200 -- the other half of the 400. And in the general election, she'll crush; she gets all the Democratic and Latino votes (700) as opposed to the 300 Republican votes for her opponent. (FWIW, as long as there's not an overwhelming number of Democratic candidates, she also wins in a one-shot election, since she gets the 300 Latino votes, plus her share of the 400 Democrats (all 400 if she's the only Democrat, or her share if there are several), whereas the non-Latino Republican gets at most only the 300 Republican votes, and less if he splits with other non-Latino Republicans).
But the results my well be radically different in an at-large system in which, as here, Latinos are only 14 percent of the population. My spouse and kids are here to pick me up from work, and this post is already super long, so I won't spell out all the relevant numbers and assumption. But trust me; the numbers are way different at 14 percent as opposed to 30.
The point is this: At some number less than 50, you've still got dilution. The most obvious number being 49.99%. Yes, it's not a majority. But that minority's power is diluted when it's reduced from 49.9% -- which definitely will win you an election in a particular district given non-zero crossover votes -- in a district to, say, 14% in at-large voting.
There are other problems with Justice Wiley's definition as well; for example, it gives way too much weight to manipulative gerrymandering, since plaintiffs could surely create a 50.1% Latino district in Santa Monica if they were willing to sufficiently futz with the shape of the districts. But it's biggest mistake is that it simply doesn't correspond either to (1) electoral (or numerical) realities, or even (2) the commonly accepted meaning of dilution. To use Justice Wiley's own example: A quart of milk is "diluted" even if it's still 70% milk and only 30% water. Ditto for Latino voting strength in Santa Monica.
Now, look, were I the Legislature, I'm not sure that I would have used the undefined word "dilution" -- or have made that an element which, if established (alongside the other four), gets you relief. But the California Legislature did. And it did so, I'm quite confident, without a theory in mind that unless you've got a minority district that's majority-minority (50.1%), you've got to claim under the Act. I'm quite confident that the legislators who voted for the Act knew full well what both "dilution" means and how minority dilution plays out in elections. They all successfully ran in electoral contests with precisely such actual or potential effects, after all. Minority strength gets diluted even in situations in which the minority wouldn't be a majority in any district anyway. In lots of different ways. I'm sure the Legislature knew that, and in passing the Act, wanted to stop it. So, yes, they probably didn't want to grant relief in Justice Wiley's "there's only 0.1%" hypothetical. But I'm darn sure they did want to protect a 30% group (and, coincidentally, a 13.6% group, which characterizes minority groups in lots of real-world settings, in California and elsewhere). And to do so, they used an open-ended word like "dilution" that facially protects every percentage, not just 50%-plus.
So maybe the Act's a good idea or bad idea. But as a matter of legal doctrine, I think that Justice Wiley's approach doesn't work. It's not what the Act actually means.
I also suspect (1) that the losing party here (the plaintiffs) will seek review by the California Supreme Court (indeed, I'm virtually certain of it), and (2) that, if review is granted, the California Supreme Court won't find persuasive Justice Wiley's analysis of the "dilution" point. I'm not saying that review will undoubtedly be granted; though it's a high-profile case, and important, so it might well be. But if it is granted, my money's on a different result.
For whatever that's worth.
And in that regard, I'm fully cognizant of the downside of making predictions. To take an on-point example, here's what the attorney for the plaintiffs said to a reporter before the Court of Appeal's decision earlier today: "Rex Parris, an attorney representing the plaintiffs, however, said in a December interview with the Santa Monica Mirror that the chances of the city prevailing in an appeal are low. 'What are the odds of reversing on this appeal? Very remote,' Parris said."
Yeah. Turns out: Not so much.
