Kevin Shenkman: Ending Democracy as We Know It in Southern California?

Kevin Shenkman (Law firm website)
Kevin Shenkman (Law firm website)

Kevin Shenkman could be described as one of the most prolific and successful civil rights lawyers of his generation, after almost single-handedly pushing dozens of Southern California communities to change their election systems under the California Voting Rights Act of 2001 (CVRA) over the past few years.

To many in those communities, however, Shenkman is a villain, a do-gooder from Malibu who is creating racial divisions where they do not exist — and making millions in the process.

He is, according to local podcaster Stephen Daniels, “the most hated man in Santa Clarita.” And he is “hated” there — and elsewhere — because he wins.

Shenkman scored his latest victory last Wednesday evening, when the Oceanside City Council voted 3-2 to approve a proposal to move from an at-large system, where every council member is elected by the voters as a whole, to a district system, where voters are only represented directly by one member, from a particular geographic area.

The change was prompted by a March 22 letter from Shenkman, claiming that the city’s at-large system prevented minority groups from winning elections, and warning of a lawsuit to follow.

Residents of Oceanside were shocked, and angry, at the charge. The city has had several Latino council members, including one who has served on the council for the last 16 years. It also recently had an African-American mayor.

Shenkman claimed in his letter to the city that Oceanside’s 65.2% white majority engaged in “bloc voting” to exclude Latinos, and cited Linda Gonzales, who lost a city council race last year.

Gonzales opposed Shenkman’s effort, and told Breitbart News that she believes lost her election fairly. She added that Shenkman never asked her permission to use her name.

Nevertheless, the council members capitulated to Shenkman’s threat, after the city attorney advised them last Wednesday that no city or school board had ever successfully defended an at-large election system from a CVRA challenge in court.

Score another win for Shenkman. His law firm, Shenkman & Hughes, boasts on its website that he “has never lost a case, and has no intention of breaking that winning streak.”

Curiously, in his extensive bio on the website, which touts his work in “all aspects of intellectual property law, including litigation of patent, copyright, trademark, and trade secret matters,” as well as other areas of civil litigation, he omits any mention of his voting rights cases (as of this writing).

Shenkman’s path to law, and voting rights, are rather unconventional. Today, he lives in Malibu, one of the wealthiest communities in the state, whose population is over 90% white. But as he told the Talk of Santa Clarita podcast in January, he grew up in the Detroit area. There, he said, he was a “bad kid,” committing “the occasional little criminal misdemeanor kinda thing, maybe the occasional felony that I never got caught for.” He had “some interaction with the justice system,” and formed a bond with his attorney, who inspired him to pursue a legal career.

Shenkman graduated from Rice University with a B.S. in mechanical engineering (which he describes as “completely useless”), and went to Columbia Law School. He is married, with four daughters. He told Talk of Santa Clarita that if he were still practicing patent law, “I would have shot myself by now,” calling it “mind-numbingly boring.”

Shenkman’s Facebook profile photo is an image of a giant metal fist: the Joe Louis monument in Detroit, Michigan. (His cover photo is the same image: “Fuck your FB rules,” he explains in a comment to a relative.) His timeline features a photograph of Trayvon Martin, the black teenager who was killed while fighting neighborhood watch volunteer George Zimmerman in Florida in 2012, who was later acquitted. He is a Democrat, and gave $1375 to the Los Angeles County Democratic Central Committee in 2014, according to the Federal Elections Commission. He has also contributed to Democrats at the state and local levels, according to the California Secretary of State.

The public record also suggests that Shenkman has had a colorful career as a plaintiff’s attorney, filing class action suits on behalf of consumers — and sometimes acting as the plaintiff himself.

Currently, Shenkman and his law partner are plaintiffs in a class action suit filed last year against AutoZone, claiming that the auto parts dealer had not informed them that it was changing its rewards program so that a $20 credit on purchases over $20 would expire after one year. In 2014, he represented consumers in successful class action claims against restaurant chains that falsely advertised Kobe beef during a period when Japanese beef imports were banned.

In 2011, Shenkman personally filed a consumer class action suit against Chipotle Mexican Grill, claiming that employees had misled him into believing the restaurant’s pinto beans were vegetarian, when they are actually made with bacon. In his lawsuit, he cited his vegetarianism and Jewish faith (though Jewish dietary laws, which require that food be certified kosher by a rabbi, would not have permitted him to eat at Chipotle at all). That case was dismissed in 2015, more than four years later, according to court documents. He also reportedly sued the Chinese fast-food chain Panda Express, claiming it failed to disclose that it adds chicken powder to its vegetarian entrees.

That same year, he was the plaintiff — identified as an “avid runner” in media reports — in class action suits filed against coconut water companies Vita Coco and One World Enterprises, claiming they had exaggerated the hydration benefits of their products. Both cases were dismissed; court documents indicate that he accepted a token settlement of $2,000 in the Vida Coco case as part of a related nationwide class action settlement.

Following those adventures in consumer litigation, Shenkman found a new issue to litigate: minority voting rights. Specifically, Shenkman turned his attention to the CVRA, a law signed in 2002 by Democratic Governor Gray Davis — who was later recalled by the California electorate — that made it easy for activists to sue towns, school boards, and other local government bodies with at-large voting. In addition, the CVRA allows plaintiffs to “prove” that “racially polarized voting occurs” simply by showing that a member of a minority group might have won an election if not for being outvoted by members of the majority (usually white).

The CVRA is a plaintiff-friendly law with a contentious history. Over a decade ago, in the Sanchez v. City of Modesto case, a state court found the CVRA unconstitutional. But that ruling was overturned on appeal in 2006, and the U.S. Supreme Court declined to take up the case, keeping the law intact.

Among other questionable provisions, the CVRA includes incentives for lawyers to sue by allowing successful plaintiff’s attorneys to recover their fees from the defendants, while preventing successful defendants from doing the same. For activist groups and ambitious lawyers, the CVRA is a risk-free scheme; but for local governments, it is a no-win scenario. They must pay their own legal fees, win or lose, and if they lose they must also pay the legal costs — often exorbitant — of the other side.

For the first several years that the CVRA was in force, just two attorneys made “all of the roughly $4.3 million” that resulted from settlements under the law, according to the Associated Press. Those two attorneys just happened to be the two lawyers who drafted the law, including San Francisco-area civil rights lawyer Robert Rubin.

At some point, Shenkman apparently recognized the political and financial opportunity that the CVRA presented in Southern California. “Like everything else, it just fell on me,” he told Talk of Santa Clarita, recalling an early conversation with Antelope Valley Democratic Party activist Darren Parker.

In 2012, Shenkman began suing cities and school districts throughout the region — most notably the city of Palmdale, which was likely seen as an easy target because three-fourths of its population are minorities, while its city council is largely white.

Palmdale fought back, and the subsequent court fight set the template for other confrontations between Shenkman and his targets. At first, the city was defiant, fighting Shenkman in court and holding elections that a judge later declared were illegal. In the end, however, after being worn down by years of litigation and appeals, Palmdale agreed to a settlement that required it to pay $4.5 million. (Curiously, one of the plaintiffs’ other lawyers was R. Rex Parris, the mayor of the neighboring city of Lancaster, which still uses the at-large election system.)

Since the Palmdale case, Shenkman told Voice of OC last year, he has been inundated with calls from potential plaintiffs. Some of Shenkman’s potential plaintiffs are local politicians. He told Voice of OC that he also works with the Southwest Voter Registration and Education Project, a Texas-based Latino organization (with a Los Angeles office), which he reportedly represented in at least one case.

Shenkman uses the Palmdale case to push other cities into immediate compliance. In his letter to Oceanside, for example, he wrote: “As you may be aware, in 2012, we sued the City of Palmdale for violating the CVRA. After an eight-day trial, we prevailed. After spending millions of dollars, a district-based remedy was ultimately imposed on the Palmdale city council, with districts that combine all incumbents into one of the four districts.”

Shenkman and his supporters argue that districts increase the chance that minority candidates will win elections, presuming people vote as racial blocs. Shenkman told Talk of Santa Clarita that the at-large system had been created in the early 20th century to “freeze out” minorities. District-based elections, according to Shenkman and to the few advocates who spoke in favor of districts at the Oceanside city council meeting, are also theoretically less expensive, lowering the barrier to entry for candidates. And with fewer constituents per public official, districts might allow more direct interaction between local voters and their elected representatives. (In Santa Clarita, Shenkman pushed for cumulative voting, in which voters can vote more than once for their preferred candidates, telling Talk of Santa Clarita that the system would be more likely than districts to elect Latinos to the city council.)

Many residents, however, seem to prefer the at-large system. One reason, frequently cited by the opponents of Oceanside’s proposed district system, is that every single member of a local government body under an at-large system is accountable to each voter. Some, like Hans von Spakovsky of the Heritage Foundation, also argue that small communities share too much in common to be divided politically in ways that encourage politicians to favor their local neighborhoods over others. And many communities reject the idea that they are racist — or that they use “bloc voting” to exclude minorities, as Shenkman alleges. They also dislike the drawing of districts using racial criteria, arguing it creates new divisions in the community — a frequent refrain among the opponents in Oceanside.

More than the particular form of government, what many communities resent is the way they are being compelled to accept districts — through legal threats and accusations of racism. Oceanside Councilmember Jack Feller, who voted against the new system, told the Los Angeles Times that he felt “disgusted … that this is being forced on us.”

If Palmdale was an attractive target, Oceanside was a poor one. Just over a third of its residents are Latino, and there has been at least one Hispanic representative on the five-member city council for the last two decades. At the council meeting on Wednesday evening, many of the most vociferous opponents of the new plan were Hispanic. But the Palmdale case loomed large in the minds of the council members, who voted — narrowly — to surrender.

Gonzales, the candidate whose name Shenkman used in his letter to the city, told Breitbart News that she felt he had exploited her for his own purposes. She said that she had reached Shenkman by telephone, and found him rude, until she explained who she was. At that point, she said, he expressed sympathy for her recent election loss. She told him she had lost because she was running against veteran incumbents, not because of racism.

“I told [Shenkman] that I agree we need to get more Latinos involved in the government, and in our democracy, and in our Constitution,” but without special districts, Gonzales recalled. “He didn’t want to talk to me after that.” And she added: “They’re working against the people they’re trying to help.”

That is a common sentiment in the communities Shenkman has confronted. In Palmdale, when Shenkman sued to stop city council elections in 2013, the city accused him of “attempting to stop an election where at least one minority candidate is essentially guaranteed to win a seat on the City Council,” given the field of candidates. The city attorney opined that Shenkman’s legal team was “only interested in gouging the taxpayers to line their pockets.”

Shenkman later defended his payout to the Los Angeles Times: “We did very well on the Palmdale case. But people who criticized us don’t realize the enormous risk that we took.” (It is not clear what “risk” Shenkman was referring to, since — as noted above — the CRVA does not allow successful defendants to recover costs. He told Voice of OC: “I was not paying my mortgage in order to pay the experts. And the court reporters’ fees, and other stuff. Hundreds of thousands of dollars in out-of-pocket costs.” Other lawyers, he said, might not have been “crazy enough” to try.)

Shenkman also told Talk of Santa Clarita that he “embraced” the financial rewards of his voting rights cases, admitting that he posted a photograph of the check he received from Palmdale on his Facebook page with the caption: “Picture me rollin’, bitches.”

He has, at times, described his highly lucrative voting rights campaign in more idealistic, self-righteous, even self-pitying terms. In a speech in 2013, he said: “Other people have introduced me as just being the bad guy. They call [me] the carpet-bagger, the ambulance chaser, some other names that are probably not even as nice as that. And all for seeking to allow racial and ethnic minorities … to have a say in their city governments, their school boards.”

He later admitted, however, to “extorting” local governments, in an interview with Voice of OC: “That’s all true … taking advantage of easy targets — yeah. There are a lot of easy targets, but they should change. If they change their election system, I wouldn’t need or have the opportunity to sue them.”

Since the Palmdale case, Shenkman has overturned at-large election systems throughout Southern California, most of which had been in place for many decades, without complaint. The Orange County Register called the changes a “historic upheaval,” citing “dozens” of local agencies that had been forced to change from at-large to district voting.

Not even liberal cities are safe. Last year Shenkman sued the City of Santa Monica, which prides itself on its left-wing “progressive” politics, and which has a Latino mayor.

Shenkman’s client in Santa Monica is Maria Loya, who has run unsuccessfully for local office. She is married to Oscar de la Torre, who claims he lost a race for city council in November 2016 because of the at-large system. (De la Torre came sixth in a race where the top four won seats; Mayor Tony Vazquez won the second-highest number of votes.) He is on the board of the Pico Neighborhood Association, which is also a plaintiff in the case. (In addition to Shenkman, one of the other lawyers for the plaintiffs is none other than CVRA co-drafter Robert Rubin himself; another is Mayor Parris of Lancaster, once again.)

Shenkman told Talk of Santa Clarita that the Democrats on the Santa Monica city council are “hypocritical.” He added: “[T]hey’re saying the same right-wing things” as the city of Palmdale .

Last year, however, Shenkman’s lawsuit nearly derailed negotiations between Santa Monica and his home town of Malibu over the creation of a separate Malibu school district, something local activists in Malibu fervently desire. Initially, Shenkman was on Malibu’s negotiating team. But when Shenkman filed his lawsuit, without warning, Santa Monica cut off talks.

“[T]his legal action could jeopardize our ability to move forward in a productive manner,” the school board president said in a press release, reported at the time by the Santa Monica Daily Press. A group called Advocates for Malibu Public Schools, which had initially joined Shenkman’s lawsuit as plaintiffs, withdrew from the case, and Shenkman resigned as a member of the negotiating team, saying his involvement had become a “distraction.”

Given Shenkman’s unsparing style, perhaps Santa Monica should not have been surprised. When voters in the San Fernando Valley town of Glendale rejected a district system by a 2-to-1 margin in a 2015 referendum, Shenkman sued the school district. When the San Bernardino County town of Upland agreed to a settlement with Shenkman, which involved hiring demographers to draw districts that favored Latinos, they still had to pay legal fees. And when the Orange County city of Fullerton created districts, Shenkman went back to court to challenge the new boundaries.

Shenkman has a brash style of speaking, and is not shy to express contempt for his legal and political opponents. On Talk of Santa Clarita, Shenkman referred disparagingly to local Latino politicians with whom he disagreed — in explicitly racial terms: “I don’t think very highly of the crowd in Santa Clarita who are Latino by name only,” he said, singling out newly-elected Republican Assemblyman Dante Acosta (R-Valencia) as “one that comes to mind.”

Shenkman also made an astonishing allegation about a former State Senate candidate, Democrat Johnathon Ervin:

Shenkman: And the Democrats that were up [for election] were horrible candidates.

Daniels: Mmm.

Shenkman: I mean, Johnathon Ervin is a horrible candidate.

Daniels: Why do you say that?

Shenkman: He’s got so many problems, man. First of all, the guy takes bribes, OK?

Daniels: Ugh.

Shenkman: You know —

Daniels: Hey man, you’re a lawyer. I mean, don’t you at least want to say, “allegedly”?

Shenkman: No.

He added, later in the interview, that he had received death threats, and threats to his family, as a result of his work on voting rights. But he was undeterred, and said he has many requests from local activists to confront their cities.

In discussing the cities he has taken on, Shenkman seems to adopt an imperious tone, confident that he can shape outcomes to his will. When asked by Daniels about whether Santa Clarita could avoid a lawsuit by appointing a Latino member to the council, he said that it would depend on whom they appointed:

I think it very much depends on who they appoint. And right now, as the council stands, there are four white, conservative Republicans of a similar mind. And that is not what the City of Santa Clarita is. I would love to see the city council have the kind of maturity to appoint someone who does not share all of their views… Maybe the fifth person should bring some diversity of ideas.

Shenkman also vowed on Talk of Santa Clarita to depose the current Santa Clarita city council — which he claimed was elected unlawfully — eventually: “Any time a city fights us to the bitter end, that’s the approach that we take.”

Ironically, Shenkman’s own town of Malibu has an at-large election system — the very system Shenkman is destroying elsewhere — and an apparently all-white city council. But not enough minorities live there: only 6.1% of the population is Hispanic, and only 1.2% is black. Ironically, that means the CVRA might not apply to Malibu.

But perhaps the greatest irony is that for all of Shenkman’s legal work over the past five years, the new district systems are little better at electing minorities to office than the old at-large systems.

Last month, the Times observed: “A voting law meant to increase minority representation has generated many more lawsuits than seats for people of color.” It added: “Of the 22 cities that have made the move to district elections since June [2016], only seven saw an overall gain in Latino council members.” And the reasons for poor Latino representation had nothing to do with racism, the Times reported:

A number of factors likely contributed to the low numbers, including historically low turnout by Latino voters and a lack of candidates with the means to run, experts said. Also, even in cities with large Latino populations, some residents can’t vote because they are too young, are here illegally or are not citizens.

The threat of legal action has forced cities to switch to council districts, but in some cases the move hasn’t resulted in more minority representation because the city already is well-integrated and drawing districts where minorities predominate is difficult.

Shenkman told the Times that he had filed about ten lawsuits — and that, in the newspaper’s words, he “couldn’t remember how many warning letters he has sent to local governments.”

That campaign has upended local government in Southern California, and divided communities by race in ways that may linger for generations, but it has achieved almost nothing else — except making Kevin Shenkman richer.

There are only two ways to stop Shenkman. One is to meet his challenge in court.

Since 2013, the legal landscape has changed: the Supreme Court tossed part of the federal Voting Rights Act in 2013, in Shelby County v. Holder. In doing so, the Court emphasized the importance of evidence in determining whether there is racial discrimination in any particular jurisdiction. The Court could, theoretically, toss out the California Voting Rights Act for vagueness, since its evidentiary standards are so low that it allows virtually any candidate to challenge an election loss as racist.

Given the wide impact of the CVRA across the state over the last few years, the Court might have also a greater interest in hearing a challenge than it did a decade ago. The confirmation of Justice Neil Gorsuch might also offer hope to defendants. But realistically, few local communities have the money to gamble on a Supreme Court win.

That leaves one last recourse: the state legislature. The communities of Southern California could approach their elected representatives, Democrat and Republican, and ask them to amend the CVRA to require higher standards of proof of racism, or at least to remove the monetary incentives that reward lawyers like Shenkman for their exploits.

On most issues, Democrats in Sacramento might not be inclined to listen to conservative cities in the Inland Empire or San Diego County. But Shenkman is pursuing liberal Santa Monica, too. There could be bipartisan interest in protecting local government from outside lawyers who can squeeze taxpayers with arguably frivolous lawsuits.

Until then, Shenkman will keep going. As he said in 2013: “The law is the law.”

Shenkman did not reply to requests for comment.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named one of the “most influential” people in news media in 2016. He is the co-author of How Trump Won: The Inside Story of a Revolution, is available from Regnery. Follow him on Twitter at @joelpollak.

This article has been updated to include a reference to state and local campaign contributions.

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