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CVRA Plaintiffs Respond to City’s Word-Parsing Appeal with Undisputed Facts

Responding to the City’s appeal of the Superior Court finding that the City’s at-large by-seat election system violated the California Voting Rights Act (CVRA), plaintiffs have filed their full response.  [Respondents’ Brief on Appeal 2019]

The City’s appeal of Superior Court Judge Thomas Kuhnle’s decision rests principally on the definition of “usually” as it pertains to statistical analysis in voting rights law. [cvra city opening brief 2019]

The plaintiffs’ response rests on simpler reasoning, with no statistics knowledge required: the preponderance of the evidence. A top exhibit in this argument is the undisputed fact that, prior to 2018’s court-ordered district elections, no non-white candidate was ever elected to the Santa Clara City Council.

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“The trial court looked carefully at recent elections in Santa Clara and made an informed, nuanced decision based on all the evidence,” said Attorney Richard Konda of the Asian Law Alliance in an email statement. “Including strong statistical evidence that Asian American voting power in Santa Clara has been diluted because of the City’s at-large system.”

The City doesn’t dispute that in five of the 10 elections considered by the judge, Asian Americans’ — 30 percent of the electorate’s — votes were diluted by the white majority. Nor does it dispute that this finding can be accepted with an 80 percent confidence level.

The judge decided the case incorrectly, the City says, because he considered that those statistics met the definition of “usually.” In its appeal brief, the City’s lawyers argue that a 50 percent probability of a coin landing heads can’t be called “usually.”

Unsurprisingly, the plaintiffs say that the party whose legal reasoning is at fault here is the City.

Santa Clara’s “argument rests entirely on a rigidly mathematical definition of the statutory term ‘usually,’ which is wrong,” the plaintiffs say in the brief.

Quoting from a 1995 federal voting rights decision, “determining whether racial bloc voting exists is not merely an arithmetic exercise that consists of totting up columns of numbers… To the contrary, the district court … must make a practical, commonsense assay of all the evidence.”

The brief quotes another federal decision, “The Court’s job is to assess the broader legal principles …it is neither to be wedded to, not hamstrung by, blind adherence to statistical outcomes…the standard of proof is preponderance, not mathematical certainty.”

The City also contends that the current election districts violate the 14th Amendment and voting rights of non-Asian voters. The plaintiffs’ brief counters that the districts were drawn by the City’s own demographer, as well as noting the two decisions rejecting the 14th Amendment challenge to the CVRA. The U.S. Supreme Court refused to hear an appeal on this question.

The City’s final argument is that the CVRA doesn’t apply to charter cities because of what their absolute authority over municipal matters — “plenary authority” — under the California Constitution.

To this the plaintiffs answer with the Palmdale CVRA case, in which this question was ruled on decisively.

“Nothing in this argument, or the factual circumstances of this matter, though, suggests that a different analysis be adopted [from Palmdale]” the plaintiffs say, quoting from that decision: “‘If…the subject of the state statute is one of statewide concern …the conflicting charter city measure ceases to be a ‘municipal affair.'”

The Palmdale case, they continue, “specifically discussed and rejected Palmdale’s ‘plenary authority’ argument,” ruling “that ‘the plenary authority identified in [the California Constitution] can be preempted by statewide law.”

The plaintiffs in their brief accuse the City of trying to re-litigate the case — “a futile attempt to avoid the application of the clear principles limiting appellate review of

fact findings.” Appeals courts only evaluate whether “the evidence the prevailing party presented was substantial….whether any rational finder of fact could have made the finding.”

The appellate court may publish a decision as early as the first week in December.

 

The City’s $3 Million Gamble 

Attorneys experienced in CVRA litigation and voting rights say privately that Santa Clara is unlikely to prevail in its appeal. No public agency has ever won a CVRA lawsuit or an appeal.

Santa Monica’s costs for its CVRA lawsuit and subsequent appeal have been estimated to run as high as $22 million. (Santa Monica’s counsel included Theodore Olsen, who reportedly bills $1,800 an hour).

Despite history providing a persuasive case for cutting its losses, some say City Hall is gambling that it can evade paying $3 million in plaintiffs’ legal fees. Losing the appeal will almost certainly send the City’s bill past $4 million.

This lawsuit has already cost the City nearly $850,000 in legal fees to its attorney Steve Churchwell — a business partner of Related lobbyist Jude Barry and who never previously litigated a voting rights case.

And now the City has two more lawyers on the payroll: John McCarron of the Sacramento firm Downey Brand — whose field of expertise is crop damage, food labeling, and business litigation, according to his webpage — and Kevin Calia of Roseville, whose experience includes a “wide range of complex civil litigation,” according to his website.

With three lawyers on the payroll, it’s not hard to see the City’s legal bill growing several hundred thousand more.

The judge awarded $3 million in plaintiffs’ legal bills — including a multiplier because of the unique aspects of the case and the public interest that was served. That $3 million is gathering interest as the appeal makes its way through the court. Plus, the plaintiffs are incurring new legal bills.

No Council Member has publically questioned continuing on this course.

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