Historian testifies about allegedly racially polarized voting in Santa Monica case

LOS ANGELES — Even in the liberal mainstay of Santa Monica, there has been only one candidate with a Latin surname elected to its city council in the past 72 years. And that candidate — not elected until 1990 — lost as an incumbent in 1994 before being re-elected and becoming mayor.

A plaintiffs’ witness in a California Voting Rights Act case called this a result of racially polarized voting, key evidence presented at trial Tuesday by Malibu attorney Kevin Shenkman, who is one of the attorneys suing the city for not switching over from its current at-large voting structure to a by-district method. The lawsuit said an at-large structure disenfranchises minority votes.

Shenkman has sued multiple municipalities across California to comply with the California Voting Rights Act. Most have settled, but Santa Monica is putting up a fight.

The city said its at-large system does not discriminate against minorities, arguing the council currently has two Latino members and gives more choices to voters.

Shenkman, along with R. Rex Parris and Milton C. Grimes, represent the city’s Pico neighborhood, whose voter-preferred candidates are regularly defeated by the city’s larger, white voting bloc, the lawsuit alleges. The defense has argued the neighborhood is majority white. Pico Neighborhood Association et al. v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

Tuesday’s witness, J. Morgan Kousser, a historian who has studied American voting patterns for several decades, testified that racially polarized voting occurred in the city in 1994, 2004, 2008, and 2016. In racially polarized voting, the candidate seen as the choice of a racial minority under an at-large system loses to the choice of white voters, he said.

In 1990, Tony Vazquez became the first Latino candidate to win a Santa Monica council seat although he lost as an incumbent in 1994. Vazquez went on to win again, eventually becoming the city’s first Latino mayor, Kousser said.

Shenkman questioned Kousser about that election, in which Latinos voted 100 percent for Vazquez while 35 percent of white voters cast a ballot for him.

In 2004, the top four candidates chosen by white voters all won seats, Kousser testified.

In not all cases is a minority candidate the choice of minority voters, he testified.

In a similar case involving Palmdale, a minority candidate was the choice of 50 percent or more of that minority group in three out of 11 contests, but in the remaining eight cases he or she was not, Kousser said.

At one point during direct examination, the issue of voter perception came up with regard to pro tem Mayor Gleam Davis, who is part Latina. Since her surname is not traditionally Latino, plaintiffs’ attorneys said voter perception is what matters when it comes to racially polarized voting.

Marcellus McRae, a Gibson, Dunn & Crutcher LLP defense attorney, asked why it mattered how voters perceived Davis.

“It is relevant because [Kousser] is designated to testify about racially polarized voting. It is the voter’s perception of Davis and not how she self-identifies that is relevant to racially polarized voting. What we are trying to do is gauge voters,” responded Shenkman.

“That makes my argument for me. That is to allow Kousser to opine on who is a Latino for purposes of the California Voting Rights Act. That is a legal question. That is the province of this court. What Dr. Kousser cannot say is who is a member of a protected class,” said McRae.

Judge Yvette Palazuelos wondered if Kousser was merely saying that was the perception.

“Voter perception doesn’t determine whether someone is Latino. If that is the case, why are we talking about it? Dr. Kousser is not qualified to talk about it,” McRae said.

Parris then intervened. “That is an interesting closing argument. I object to this continuing closing argument every time there is an objection,” he said.

“He is saying she is perceived as a Latina, not that she is not,” Palazeulos said.

In the end Shenkman got an answer to his question on voter perception.

“It matters because they are the ones who voted and who provide the data for racially polarized voting,” said Kousser.

Cross examination of Kousser is expected to begin Wednesday.