At Santa Monica voting rights trial, expert flips sides on key question

LOS ANGELES -- A plaintiff's witness who testified that racially polarized voting did not occur in a previous voting rights case testified Monday he could not say if it happened in the city of Santa Monica.

The witness, Dr. Jeffrey Lewis, testified on behalf of the city of Santa Clara in a similar voting rights case that racially polarized voting did not occur. Polarized voting occurs when a minority's candidate of choice is beaten at the polls by a majority's candidate of choice.

Lewis was called to the stand by Kevin Shenkman, one of the plaintiff's attorneys who is trying to get Judge Yvette Palazuelos to rule the city's at-large voting system discriminates against Latinos.

Lewis testified that although he delivered an opinion that racially polarized voting did not occur in Santa Clara, he said he subsequently realized he didn't have the legal credentials to render an opinion in this case.

"I used racially polarized voting because I did an analysis that led to a set of facts," Lewis said.

"So why didn't you do that here?" asked Shenkman.

"I do think it is hard to see what the definition would be in a plurality election like in Santa Monica," Lewis said.

"It is my opinion that as of the end of Santa Clara that I am not in the business of interpreting legal terms," said Lewis.

Earlier this year, Superior Court Judge Thomas Kuhnle ruled Santa Clara's at-large system discriminated against its Asian-American community, which constituted 40 percent of the population and was represented by an all-white council. Five Asian-American candidates mounted unsuccessful election campaigns in 2016.

It's unclear how the matter will play out in time for the November elections. The city has appealed the judge's ruling. Kuhnle selected the city's districting choice to delineate it into six districts.

Shenkman, who has been successful in getting municipalities in California to change to a districted system, has found an opponent in Santa Monica, a liberal city accused of not being liberal enough. He's being assisted by R. Rex Parris and Milton C. Grimes. Pico Neighborhood Association et al. v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

At issue is the California Voting Rights Act. Plaintiff contends it must merely show racially polarized voting, arguing only one Latino-surname candidate has been elected since at-large voting began 72 years ago. The defense said voter dilution must also be shown. It has argued the law doesn't protect candidates, but voters.

Earlier in the day, plaintiff's witness Morgan Kousser ended his testimony after 12 days on the stand. Kousser, a social historian, has testified that a number of elections in Santa Monica have consisted of racially polarized voting.

Shenkman, who is suing the city on behalf of the city's Pico Neighborhood Association and failed candidate Maria Loya, ended by asking about "packing" and "cracking" in the context of elections.

"Packing" is putting more members of a group in a district that are needed reliably to elect a candidate of that group's choice while "cracking" is dividing a minority group in order to ensure it does not have enough votes to elect a representative, Kousser said.

Shenkman asked if Kousser was aware if any court found districted elections lead to such scenarios. He also asked if Kousser was aware of any court ruling that said a move to a district system was intentionally discriminatory.

City defense attorney Marcellus McRae of Gibson, Dunn & Crutcher LLP objected each time on the grounds that Kousser was not an attorney, but Judge Yvette Palazuelos overruled him.

Kousser said he was not aware of any such court findings related to districting.

Under re-cross-examination, McRae said there was a fundamental disagreement over the legal standards to determine racially polarized voting.

"You understand you do not get to resolve that dispute?" McRae asked.

Kousser said he understood.