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City Voting Rights Appeal Relies on Meaning of “Usually”

“Usually.” The meaning of that word with respect to voting rights law is the keystone of Santa Clara’s appeal of Superior Court Judge Thomas Kuhnle’s judgment against Santa Clara in the 2017 California Voting Rights Act (CVRA) lawsuit.

The City argues that the Court failed to “apply the correct ‘usually’ test.”

Santa Clara is 37 percent Asian, 36 percent white and 17 percent Hispanic, per the 2010 census. The statistical evidence presented at the trial a year ago shows racially polarized voting (RPV) — where minorities cannot elect candidates that aren’t favored by the majority — in five of 10 elections. The City doesn’t dispute this.


However, “five of 10” isn’t the correct “usually” test, says the City.

“No one would say a flipped coin ‘usually’ lands on heads, because it is equally likely to land on tails. Likewise it is impossible to say that Santa Clara’s elections are ‘usually’ characterized by RPV after finding RPV in only five of ten elections.”

The City further argues that statistical analysis showing RPV with 80 percent confidence — a level Judge Kuhnle considered acceptable — doesn’t meet the legal standard of “usually.”

The standard must be 95 percent confidence, says the City, and that Kuhnle had usurped the role of a statistical expert; a “deviation from proper procedure” that “demonstrates the Plaintiff’s failure to meet the ‘usually’ standard.”

The City argues that without meeting the “usually standard,” the court also violated the Equal Protection Clause of the Constitution, and the “constitutional plenary authority of charter cities to choose the manner and method of electing their officers.”

Instead of semantics, plaintiffs are relying on facts the City isn’t disputing.

  • No minority was ever elected to the Santa Clara City Council until the present district system was adopted.
  • Only white candidates preferred by white voters won elections.
  • The City retained its at-large by-seat system after being told repeatedly that it resulted in vote dilution.
  • In 2016 the City Council appointed a white applicant to Council vacancy over two qualified Asian-American applicants.
  • Precinct analysis of the 2016 election shows that almost 60 percent of Asian American voters cast their ballot for now-Council Member Raj Chahal, but Chahal finished third in that election.

“Ignoring all but the Court’s findings on racially polarized voting, Santa Clara attempts to reduce the CVRA’s proof requirement to a simple mathematical formula,” the plaintiffs’ brief says.

“This approach disregards the totality of the CVRA’s requirements,” the brief continues, “The Court should reject this myopic focus.”

To date the lawsuit is costing Santa Clara $3.16 million for the plaintiffs’ legal costs and $850,000 for the services of Sacramento-based Attorney Stephen Churchwell, a business partner of Related Companies lobbyist Jude Barry. The City has added two more attorneys: John McCarron, a partner in Sacramento firm Downey Brand’s food and agriculture practice, of and Kevin Calia of Roseville, whose practice includes “a wide range of complex civil litigation.”

How high can the costs go? Consider that Santa Monica may be on the hook for about $22 million in plaintiffs’ legal bills in the CVRA lawsuit that city lost earlier this year. Santa Monica, too, is appealing the decision.


Courts Have Ruled: CVRA is Constitutional, Applies to Charter Cities

Two issues that the City raised in its defense, and now its appeal, have been decided previously — specifically in Modesto (2004) and Palmdale (2013) CVRA cases.

In Modesto, a federal court ruled that the CVRA didn’t violate the Fourteenth Amendment because the law doesn’t confer a benefit or a burden on any group or interfere with anyone’s right to vote.

The U.S. Supreme Court declined to review it, and recently a federal court upheld the CVRA‘s constitutionality in another case.

In Palmdale, the appellate court ruled that the CVRA applies to charter cities.

“The rights of protected classes against dilution of their votes do not arise merely from a municipal concern,” says the ruling. “California has a greater interest in insuring vote dilution does not occur in any election in our state than defendant has in electing city council members city-wide.”

Visit the City of Santa Clara’s website to learn more or take a survey regarding voting districts,


Additional Documents


Respondents’ Brief on Appeal 9-3-2019


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