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CVRA Appeal Hearing: Santa Clara Puts Its Eggs in Basket Named “Usually”

In the City of Santa Clara’s appeal of the voting rights lawsuit it lost in 2018, the City can be said to be putting all its eggs in one basket.

The state appeals court today heard oral arguments in Santa Clara’s appeal of the California Voting Rights Act [CVRA] lawsuit that it lost in 2018. And those arguments come down to two words: “usually” and “preponderance.”

The City argues that Superior Court Judge Thomas Kuhnle’s finding that Santa Clara’s at-large election system violated the Asian Americans’ voting rights was incorrectly decided because the judge used the wrong definition of “usually.”


“This case rests on the meaning of usually,” said the City’s attorney Kevin Calia told the three justices hearing the case.

The plaintiffs didn’t argue about numbers in their response. Instead, they focused on the preponderance of the evidence.

“Numbers alone are not determinative,” said the Plaintiffs’ attorney Maurice Baller.

Baller is a well-known voting rights attorney. Calia, according to his website, specializes in defending clients “against claims of securities fraud, antitrust violations, unfair business practices, and breaches of fiduciary duties.” This appears to be his first foray into voting rights litigation.


Does the Law Require 51% to Call Something Usual?

The statistical evidence presented by the plaintiffs at the 2018 trial showed racially polarized voting (RPV) — where minorities cannot elect candidates that aren’t favored by the majority — in five out of 10 elections.

However, five out of 10 doesn’t mean ‘usually,’ says the City. Their argument is that the bar can only be met if racially polarizing voting can be shown in 51 percent of cases and only if the confidence in that number is 95 percent, instead of Kuhnle’s level of confidence of 80 percent.

“Trial courts have discretion to evaluate the evidence,” said Baller. “The Supreme Court has found that viewing racially polarized voting as a matter of numbers is incorrect. The totality of the evidence is to be considered.”

The totality of that evidence, Baller said, was, prior to losing the lawsuit, “The City of Santa Clara has never elected to office, 70 years, one Asian American Santa Clara resident.”

The Justices didn’t appear to find the City’s argument convincing, and Calia was asked repeatedly to cite an authority for the 51 percent standard.

“There’s nothing in what you cited that says that,” one Justice said. “So you’re saying all of this can be thrown out because it doesn’t meet the 51 percent standard? If you can’t get to 51 percent the case gets thrown out?

“There is no specific standard,” the Justice said later in the hearing. “It just happens that the cases you mentioned were 51 percent. There’s no standard that says that.”


City Asserts Asian American Voters Do Elect Candidates of Choice — When They’re White

 Calia also asserted that there wasn’t enough evidence to be confident of the 50 percent number. Judge Kuhnle had assigned the confidence level in the numbers of 80 percent “without any basis.”

“The City is saying that the plaintiffs’ experts that testified in the trial court, that were the basis of the ruling, were wrong?” the justice asked. “Were there experts testifying on the other side? Was there anybody testifying to 80 percent being illegal, inaccurate?”

Calia admitted there was not.

“The defendant could have cross-examined the expert witness,” said Baller. “They could have brought evidence. They didn’t. They never mentioned this.”

The City’s arguments against the statistical evidence weren’t ones they made in the 2018 trial. First, Santa Clara’s population is so homogeneous that it’s not possible to tell if there is polarized voting.

Second, Asian Americans’ voting rights weren’t infringed because the evidence presented showed that they were able to elect candidates of their choice and those candidates just happened to be white.

“The plaintiffs didn’t study elections where there were no Asian candidates,” said Calia, “and those when they preferred the white candidate even if there was an Asian candidate. There’s no reason to discount those elections just because Asian voters preferred white candidates.”

Plaintiff’s attorney Baller replied that the argument was based on a “faulty comparison. The correct comparison is Asian Americans voting for Asian American candidates — not their voting for white candidates.”


City’s Arguments “Indefensible,” “Absurd”

“The City is arguing that ‘usually’ discriminatory conduct means that at least 51 percent of elections have to have been found racially discriminatory,” said attorney J. Byron Fleck, a former Santa Clara resident and City Commissioner.

“That’s like saying Bull Conner gets a pass because he only sic’d the dogs on protesters only once in Selma. Most other times he didn’t so, no proof of racism.

“The City would be well advised to settle as best they can,” Fleck continued. “Santa Clara’s ‘defense’ of the legally and morally indefensible was absurd — as questioning from the justices exposed.

“The shame, let alone maybe $5 million in attorneys fees for which residents will now have to pay, never had to be. Compare Sunnyvale, who ‘got it’ and moved to district elections without spending a dime.”

Fleck believes the appeals court “is about to slam the City of Santa Clara.”

He advises, “Settle as best you can and write the check. Most importantly, hold your City Attorney Doyle and pliant members of the City Council responsible and accountable. They own this disaster.”


  1. Jean 4 years ago

    I appreciate Mr Flecks opinion. Hearing from an attorney that is not involved with the case or the city is valuable. Unfortunately it doesn’t look good for Santa Clara. Money wasted.

  2. CSC 4 years ago

    “…Most importantly, hold your City Attorney Doyle and pliant members of the City Council responsible and accountable. They own this disaster.”

    All residents of Santa Clara need to muster enough backbone to embrace this advice and make a couple swift changes to the city’s leadership and character.
    1) over the next 17 months, seek and identify someone with unwavering integrity to replace Lisa Gillmor and Kathy Watanabe as mayor and District 1 representative.
    2) within the next six months, move to change the city’s charter from an elected police chief to an appointed police chief and then replace Nikolai. Santa Clara PD is a wreck of leadership and has consistently churned out criminal after criminal in uniform. SCPD’s excessive force has cost taxpayers more than this CVRA debacle and will likely cost millions more in the spring when the City, SCPD, and Colin Stewart go to trial for murdering Jesus Geney-Montes.
    3) The City Council needs to clean house with city management to include terminating Deanna Santana, Rick Doyle, Sujata Reuter, and all the other ‘friends’ Santana has hooked up with overly generous pension packages.

    The Ninth Circuit should have the full video of this hearing posted by Monday, check back here:

  3. Tom E. 4 years ago

    CSC, Yes! Let’s become more like Portland and Seattle whose squish appointed Chief pushovers have let those cities fall apart while under the thumb of an incompetent Council. That sounds delightful.

    To your points:
    1) Seek, and you may find. We are waiting on pins and needles for who your Star Chamber anoints!
    2) Check your facts. The Santa Clara DA ruled that unfortunate incident a lawful and just police action. Nobody is going to trial for murder. Please correct your libel – because that’s what it is. And, I’m not sure how taking power away from the people holds that office more accountable. It seems like it would make it less accountable.
    3) Perhaps – CAO and CM Office should consistently be evaluated for performance, competence, and continued employment.

    • CSC 4 years ago

      Tom, mature persons comment without childish emotion.

      The intentional murder of Jesus Geney-Montes wasn’t just unfortunate, it was completely unnecessary. There are only two types of people who want others to believe shooting a half-naked, unarmed, person in the back four times is justified: 1) murders and 2) police apologists.

      I remind you, and everyone reading this, of a couple incidents that mirror what Colin Stewart did: 1) the County of San Francisco DA and investigators have recently determined that two cops will stand trial for shootings in separate incidents involving one armed and another unarmed person, both of whom were alleged to have committed crimes but neither of whom were immediate threats to each officer when they were shot and/or killed. By ‘mirror’ I mean Jesus Geney-Montes also didn’t pose a threat to officers. And 2) in a previous matter, Cook County DA (Illinois) charged ex-officer Jason Van Dyke with murder more than a year after police investigators hid evidence that would reveal an execution of Laquan McDonald. Just because police investigators initially try to cover up for their fellow cop does it mean shooting people are justified. And of course we all know how the homicide of Oscar Grant turned out.

      So back to wherever you came from, Tom. Your emotionally charged apologist comments don’t measure up here.

    • Davy L. 4 years ago

      Angry Tom: There is no need for sprouting nonsense. Seattle and Portland are major metropolis centers in their states. In comparison, Santa Clara is like a tiny flea city in California. You can relax; there shall be no rioting from any outsiders here. As for our newly elected Council members, they will do fine. Unfortunately, they first have to fix all the ugly messes the previous Council left behind. Possible solutions for some of these problems are favorably brought up by “CSC”. My suggestion for you, Tom, is to begin starting up your lame brained countdown clock. That should keep you busy.

  4. Joe 4 years ago

    For the sake of democracy, Santa Clara will hopefully loose this one. Her citizens will have to pay for the gerrymandering.

  5. Saira 4 years ago

    Thank you for reporting on this important topic as a few of us missed the hearing. Do you know when the result of the appeal is expected to be announced?

  6. James Fleck 4 years ago

    I would think the published opinion to come out in first quarter 2021.

  7. SC 4 years ago

    The city council should have a simple up or down vote on withdrawing or settling this appeal. No need to throw more good money after bad.

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