Defense uses case law against witness in voter rights trial

LOS ANGELES -- Citing case law, the defense got its turn in a voting rights trial Thursday to cross-examine a plaintiff's witness, questioning the credentials and legal support of the social sciences historian who had said Santa Monica's at-large election system was installed with discriminatory intent in 1946, which lead to 72 years of racially polarized voting.

The historian, Morgan Kousser, has emerged as one of the plaintiff's key witnesses so far in a lawsuit that claims that a Latino-preferred candidate in the city's Pico neighborhood consistently loses out in an at-large election. The lawsuit argues that installing a by-district system will equalize minority voter power. Pico Neighborhood Association et al. v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

Marcellus McRae, a partner at Gibson, Dunn & Crutcher LLP who is defending the city, asked Kousser if he had a law, statistics or political science degree. Kousser said no.

McRae then went on to point out court decisions that rejected Kousser's opinions about racially polarized voting.

"The courts have expressly taken issue with your analysis, right?" McRae asked.

"Yes, some courts," said Kousser.

McRae cited Cano v. Davis, in which a federal court panel rejected a lawsuit alleging the state of California drew up districts in order to dilute Latino voting power. The panel rejected Kousser's opinion that race was a factor in drawing up voting districts, McRae said. Cano v. Davis, 191 F. Supp. 2d 1135 (C.D. Cal. 2001).

In another case, McRae said a judge criticized Kousser's opinion on racially polarized voting. The plaintiff's witness said he didn't recall but took McRae's word for it. González et al. v. City of Compton, BC450494 (L.A. Super. Ct., filed Dec. 2, 2010).

This week marked the 53rd anniversary of the passage of the Voting Rights Act of 1965, which was expanded in the state with the California Voting Rights Act of 2001.

The rare trial has taken deep dives into the history of Santa Monica politics, voting, and racial identity, but testimony has been stymied due to a number of objections and attorney disputes. One argument dealt with racial identity at the polls: Was it what race a candidate identified as or the perception of voters?

The defense has argued that the city's at-large system doesn't discriminate against Latino voters, citing two city leaders as being Latino: former Mayor Tony Vazquez and current pro tem Mayor Gleam Davis.

But the plaintiff has argued that Davis, whose father is Latino, doesn't count as Latina because voters wouldn't perceive her that way at the ballot box due to her surname.

The case has also veered into issues of class. During one moment Thursday, plaintiff's counsel R. Rex Parris questioned a candidate who lost a council election. Stephen Duron ran in 2012, coming in last place with 2,500 votes.

"Is there any doubt in your mind that it is easier to make contact with poor people than rich people?" Parris asked.

Kahn Scolnick of Gibson Dunn objected to the line of questioning as being vague and out of the scope of re-cross-examination, but was overruled by Los Angeles County Superior Court Judge Yvette Palazuelos.

Duron said contact depended on where the voters lived. In the wealthier parts of the city, "you can knock on their door" as opposed to navigating an apartment complex. However, "if it is gated, you can't get past the gate," he said.

"So the distinction is apartment versus non-apartment?" the judge asked Duron.

"It's access versus non-access," he said.