Defense presses witness for 5 days to get what it says is full story

LOS ANGELES -- Little by little, Gibson, Dunn & Crutcher LLP defense attorney Marcellus McRae has sought to reveal in a bench trial the information a plaintiff's historian didn't present in his testimony that Santa Monica's at-large system creates racially polarized voting.

It took five days, but McRae's cross-examination of social historian Morgan Kousser in the voting discrimination case ended Thursday.

Racially polarized voting is defined as occurring when a racial minority's candidate of choice loses out to the racial majority's candidate of choice. Kousser testified that it occurred in Santa Monica during six city election cycles since 1994. The city has argued no residents were deprived of their right to vote for their favored candidates, including those who were not minorities.

The lawsuit, citing provisions of the California Voting Rights Act, seeks to change the city's at-large election system to a by-district system.

McRae said voters would lose choices under a district method, citing a city commission's report that said "districts may not be the optimum method of Latino empowerment in this city."

"I did quote from the report and that reflects its view on some of the advantages of an at-large system," said Kousser.

But McRae was interested instead in the commission's concern over the by-district method.

"And those portions I read to you, you did not reflect those portions in your report," said McRae.

McRae also highlighted a quote that said, "Santa Monica is fortunate in being relatively free in recent years of ethnically polarized voting -- as the approval of minority members by an electorate over 85 percent white tends to show."

The rare voting rights bench trial has been brewing for two years. The plaintiff claims the Voting Rights Act is being violated because Latino candidates from the city's Pico neighborhood routinely lose elections. The city's Latino population is concentrated in the neighborhood although it remains majority white.

The city is arguing the act protects voters, not candidates, and the city's Latino-preferred candidates have had a high success rate since the turn of the century. Pico Neighborhood Association et. al. v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

The plaintiff, represented by Kevin Shenkman of Shenkman & Hughes, R. Rex Parris of Parris Law and Milton C. Grimes of Los Angeles, contends only one Latino-surnamed candidate has ascended to the city council in the 72 years of at-large elections. The city said there are two, counting Mayor pro tem Gleam Davis, who is part Latina, and former Mayor Tony Vazquez.

McRae brought forward evidence that included city and state officials opposing district elections since the 1980s. He questioned Kousser about leaving out a 1992 vote by the city to not put districts on the ballot after a commission said it did not have sufficient information to make a recommendation.

Later in the day, Parris objected to some proffered evidence: two endorsements, one by the League of Women Voters and the other by then-State Sen. Sheila Kuehl, told voters to strike down the move to district elections in Santa Monica.

McRae argued, "It is highly relevant because you can support at-large elections and not have discriminatory intent. It is also conspicuously absent from Dr. Kousser's report."

Parris, arguing the website where the endorsements were posted had nothing to do with discriminatory intent in 1992, continued to object: "That's no different than saying, 'Trump is president of the United States and you must agree with this.'"

Superior Court Judge Yvette Palazuelos answered, "It says 'Vote No on Measure HHH.' I am going to overrule the objection."

However, she told McRae to stop his questioning about the endorsement by Kuehl, now a Los Angeles County supervisor.

"I don't even think it is relevant because then we would have to bring every citizen in for questioning," the judge said.