A new and better California Voting Rights Act
The CA Supreme Court’s Pico ruling opens new doors for multi-racial, multi-partisan representation via proportional voting -- if voting rights advocates are bold enough to seize the opportunity
In about a month, on November 11, I will once again mark the passing of my good friend Antonio Gonzalez, who lost his battle with cancer five years ago. Antonio was one of the most prominent Latino leaders in the country, a determined and tireless warrior on behalf of those without a political voice. He was the longtime director of both the Southwest Voter Registration Education Project and the William C. Velasquez Institute, based in Los Angeles and San Antonio, and his advice and counsel were sought by presidents, senators, governors, mayors and community leaders and organizations.
But what he was really known for was being the “King of Voter Registration” for the Latino Nation. Antonio was the most important catalyst for Latino voter mobilization, working indefatigably to register and educate Latino voters, urging Latinos to contribute their voices in a country – and not that long ago, also in California – that didn’t want to hear from them. His motto was “Su Voto Es Su Voz” -- “Your vote is your voice.” He also hosted a regular public interest radio show on KPFK-Pacifica in Los Angeles that I was a guest on a number of times. He was an organizer and doer , but he was also a solid intellectual with a broad vision of political and economic justice. Antonio was a mountain of a leader, the type whose shoulders many will stand upon over the years to come. He was only 62 years young when the Grim Reaper came calling. It took him far too soon.
Antonio was important to me for another reason: he was one of the few Latino leaders who was vocally supportive of our efforts to advance proportional representation, both in California and in the US (another prominent and supportive Latino leader was UFW co-founder Dolores Huerta). Throughout the 1990s and 2000s, especially after the passage of the California Voting Rights Act in 2001-2002, the train left the station at sonic speeds in efforts to use legal sticks to force cities to switch from the discriminatory electoral system known as “at-large plurality” to district elections. This was an important, history-making project and I and everyone else at FairVote supported it 100 percent.
But there were many locations where the Latino population was too geographically dispersed to benefit from drawing districts. So we proposed adding to the toolbox the use of proportional voting methods such as proportional ranked choice voting and cumulative voting in those jurisdictions where districts wouldn’t help. Over 100 jurisdictions in communities as diverse as Amarillo, Texas, Chilton County, Alabama and Peoria, Illinois have elected city councils and/or school boards by cumulative voting, often as a court-approved remedy to settle voting rights claims. There were many cities in which these alternative methods arguably supported the goals of the CVRA much better than districts ever could.
But most Latino leaders were ambivalent at best and hostile at worst towards our advocacy. They wanted no distractions in their hyper-drive towards districts. I remember one prominent Latino leader, a former voting rights attorney with MALDEF, telling me in the late 1990s as Latinos were on the cusp of their ascendancy to power in California, “Of course you want proportional representation now, just as we Latinos are going to be taking over and drawing the district lines. You can forget about it. You are going to have to wait 20 years, like we did. By then, you white people will be the minority and you’ll be crying out for your proportional representation.”
But Antonio was different. He went his own independent path, confident in his leadership and originality, and he was encouraging and helpful to our efforts. One day he confided in me his rationale for supporting PR, which showed his brilliant “outside the box” thinking. I remember him looking at me with his soulful brown eyes and sighing:
“I feel like I’ve registered every Latino in the nation who is willing to vote for the types of Latino candidates that the Democrats and Republicans put forward.”
That kicked off a fascinating discussion about the difference between working class Latinos and the grassroots on the one hand vs. the grass tips and the elite Latino leadership on the other. Antonio believed strongly that most working class Latinos look at the current crop of Latino political leaders, or Democrats in general, and don’t see themselves or their needs reflected. Antonio, who at that point in his career was on the speed-dialing list of every prominent Latino leader in the country, saw the gap between those leaders and those they claimed to lead. And he saw great shallowness, especially from the Democratic Party, in its pursuit of policies that held too little attraction for working class Latinos in terms of housing, labor laws, welfare, transportation, immigration and more.
“With PR, we could have more political parties, and one of those would be able to push policies that appeal more to the working class,” said Antonio. “Only a party like that would motivate those Latinos. And then I could register a lot more of them.”
Antonio had a vision for poor people and the working class that many Democratic leaders, including Latinos, failed to see. And he believed that PR and multi-party democracy was a possible route toward getting to that mountaintop. Indeed, he maintained an ongoing dialogue with leaders of the Green Party in California.
I sometimes wonder if Antonio ever shared his viewpoint with other Latino leaders who were so mobilized to draw their districts, come hell or high water. I hear he was following the November election results, and the “brown wave” of the 2018 midterm elections that he had contributed so much to build, right up until his very end. That’s the kind of dedicated leader he was. He lived his Revolution.
The California Voting Rights Act in transition – for the better
I’m thinking of Antonio these days as I reflect on two things: first, a recent California Supreme Court ruling regarding the California Voting Rights Act (CVRA) which has either upset the apple cart of fair racial representation or opened the door to a new and better CVRA, depending on one’s point of view; and second, the increasing hostility from the US Supreme Court and lower federal courts toward voting rights, reversing decades of progress.
The federal Voting Rights Act, passed in 1965, was a historic piece of breakthrough legislation that prohibited racial discrimination in election practices. It was designed to stop decades-old practices of intimidating black people in the voting process, but also to thwart other tactics such as using plurality at-large (also known as bloc voting) methods and the rigging of legislative district lines to make it more difficult – often impossible – for black and Latino candidates to get elected. It became the basis for filing lawsuits seeking remedies against these discriminatory practices. Antonio’s leadership efforts would never have been possible without it.
Spurred forward with the sweat, tears and sometimes blood of its advocates – people like Antonio – the VRA resulted in steady gains over the ensuing decades in achieving much higher levels of racial representation. In 1964, there were five black House members (only one of them from a southern state), four Hispanics, and one Asian representative. Today there are 60, 54 and 18 House members from those racial groups, and 28 percent of House members are non-white.
And yet, that still means that white representatives comprise 72 percent of House members, which is considerably more than their 59% share of the U.S. population.
While the Voting Rights Act remains one of the most important pieces of national legislation in the history of our country, it really doesn’t go far enough, and that’s what Antonio realized. Its main flaw is that it depends exclusively on “winner take all” district elections as a remedy. As the federal courts have reversed decades of precedent, this has left the VRA’s still-elusive goals vulnerable. Just as Antonio felt like he had registered every Latino voter who would vote for the types of Latinos getting elected, district elections have accomplished about all that it is possible for that remedy to accomplish.
That’s not to say that, in those places where Latino or black or Asian voters are sufficiently concentrated to draw something close to a “majority-minority district” it shouldn’t be tried. But increasingly, as various minority groups have become well-integrated into US society, those communities are too geographically dispersed to benefit from this intervention.
Meanwhile, the Republican right wing is benefitting greatly from the winner-take-all system, getting elected from lopsided partisan districts by winning GOP primaries with low percentages of the vote, more than those who are committed to a vision of a multi-racial, multi-pluralistic society.
Yet many Latino leaders – and minority leaders in general – have been slow to recognize that. Their response has been to circle the wagons and keep doing what they know, and fight against advocates for proportional voting. To some degree, that is understandable since “you dance with them that brung ya,” so to speak.
Except that adopting proportional voting methods as an alternative remedy in voting rights cases doesn’t have to come at the expense of drawing districts. It can be used in those places where the protected community is too spread out. It’s not either-or.
The California Supreme Court offers a new and better path
On August 24 of this year, the California Supreme Court issued a voting rights ruling in Pico Neighborhood Association v City of Santa Monica. This was the first California Voting Rights Act case to reach the Supreme Court in over 20 years of jurisprudence. The Court had never before chosen to weigh in on the CVRA, despite ample opportunity, and the impact of this decision is to put some guidelines on how the CVRA should be used in the future. The ruling has created an enormous opportunity in California for using proportional ranked choice voting and cumulative voting to settle voting rights cases in a way that opens new opportunities for minority communities, but also for working class and other under-represented constituencies to elect their candidates of choice.
Prior to this Supreme Court ruling, the dominant viewpoint was that all that had to be proven for a successful voting rights case in California was a pattern of racially polarized voting. But the Supreme Court struck down the exclusive reliance on racially polarized voting as a one-prong test, instead ruling that “vote dilution” is in fact a separate element of a CVRA claim that must be proven. The Supreme Court wrote:
“Accordingly, to establish dilution of a protected class’s ability to elect its preferred candidate under the CVRA, a plaintiff must demonstrate ‘the potential to elect representatives” under some lawful alternative electoral method.’”
Besides outlining this two-pronged test, the other notable event in the Court’s ruling is that, on four different occasions, it named several different methods of proportional voting, namely proportional ranked choice voting, cumulative voting and limited voting, as viable remedies in situations of minority geographic dispersion. In fact, the Supreme Court opinion not only cites proportional voting methods, it seems to invite their use in CVRA cases, and seems to actually set up proportional voting as a standard for determining if there is vote dilution to begin with.
This decision is a potential game changer. It can pave the way for a new era of voting rights in California, which then could spread to the rest of the country. I wish I could ask Antonio about his views of this court decision, and what opportunities it might open up.
In the case of the city of Santa Monica, which is the target of the Pico lawsuit, the best Latino district that could be drawn is only 30 percent Latino. It’s clear that the district remedy will not work there to elect a Latino on the strength of the Latino vote alone. Ditto in nearby Burbank, which also has been threatened by a CVRA action, where the best district that can be drawn is only 32 percent Latino.
Some hope that such a low Latino population density can help form an “influence district” by joining votes with other non-Latino communities. But this hope is undermined by the plaintiffs’ own claims that “racially polarized voting” is so severe in Santa Monica and Burbank as to justify a voting rights intervention. Assuming that is the case, then non-Latino voters are not likely to join with Latino voters to make this an influence district. That is the very definition of “racially polarized voting.” In fact, the California Court of Appeals ruling recognized this contradiction in CVRA plaintiff arguments, writing:
“Pico seeks to rescue its influence argument by suggesting non-Latinos might "cross over" and vote for Latino candidates, buoying Latino power and clearing the 50 percent threshold to electoral success. This suggestion arbitrarily embraces racially polarized voting when it helps and abandons it when it hurts.”
Consequently a district plan will do little in Santa Monica or Burbank to fulfill the goals of the California Voting Rights Act. If the cities were to move to a district plan, there will be zero districts in which a community of color will have the power to elect a candidate on their own, or even to join in an influence district with other non-Latino voters. Indeed, it might make things even worse for Latinos. Currently in Santa Monica there are three Latinos elected via at-large elections to the seven-seat city council. By isolating the highest concentration of Latino voters into a single council district, that would reduce Latino voter influence in the other six city council districts.
Wanted: a new breed of voting rights attorneys
What’s needed in this political moment is a handful of attorneys who are willing to deploy the new powers handed to them by the CVRA to propose proportional voting as a remedy to at-large plurality elections that are discriminating against Latino communities. Given the spotty track record of districts actually fulfilling the goals of the CVRA by electing more Latinos, especially in racially-dispersed cities, proportional RCV would be a more effective remedy in such situations.
I have a feeling that if Antonio Gonzalez was still with us, he would recognize that it’s time for a new vision and strategy for how we get to the goal that most people want: broad representation for a multi-racial, multi-partisan and multi-everything society. He was a vigorous Latino leader, and he was also a “rainbow leader” who believed in a good society for all.
Many people miss you Antonio, and if you are looking down on us, just know that the legacy of your inspiration continues. God bless.
Steven Hill @StevenHill1776