Plaintiffs’ lawyer anticipates defense’s planned cross

LOS ANGELES -- The defense's strategy was clear: Show the judge that a Latino candidate in Santa Monica intentionally threw his city council run to strengthen the plaintiffs' voter discrimination case.

With that witness on the stand this week, plaintiffs' attorney Kevin Shenkman decided to get ahead of the claim during direct examination.

"You didn't intentionally lose the election to support this case, did you?" Shenkman asked Oscar de la Torre, a candidate from the Pico Neighborhood Association, which is suing the city of Santa Monica, demanding it switch from at-large to by-district elections.

"No, I didn't," de la Torre said.

Through demand letters and lawsuits, Shenkman, of Shenkman & Hughes in Malibu, has gotten a number of municipalities in California to change to districted voting. But Santa Monica is an outlier, spending millions of dollars in a rare bench trial to avert a systemic change to its at-large structure.

Gibson, Dunn & Crutcher LLP defense counsel contended in a trial brief that de la Torre intentionally lost his election to strengthen the lawsuit against the city. The defense argued de la Torre didn't file for a run until after the lawsuit was filed, secured no major endorsements, and raised under the $2,000 threshold needed to file a financial disclosure form in order to run a doomed campaign. Pico Neighborhood Association et. al. v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

McRae

Shenkman in court this week sought to prove otherwise, asking de la Torre about his political history, which consisted of winning every city school board election since 2002, he said. But running as a Latino for Santa Monica City Council was a different story, de la Torre testified. He said he reached out to the Santa Monica Renters' Rights and the Santa Monica Democratic Club, two prominent civic organizations who previously supported his school board runs.

City defense counsel Marcellus McRae, a Gibson Dunn partner, objected to Shenkman's line of questioning about those groups, but Los Angeles County Superior Court Judge Yvette Palazuelos overruled him.

"In the process of those calls I kept getting, 'No, no,'" de la Torre said.

The lawsuit states the city's election system violates the California Voting Rights Act, which was intended to make it easier for minority representation at the polls though critics said it's been abused by litigators. An at-large system yields to racially polarized voting that handicaps Latino candidates at the polls, the plaintiffs say. The defense said by-district voting can also discriminate against Latinos.

McRae's cross examination focused on trying to show that de la Torre's string of victories for school board indicated the at-large system didn't discriminate against Latino candidates. He also asked about the lack of endorsements.

"You understood not seeking a SMRR endorsement posed a risk," McRae said.

"It's a calculated risk. ... I thought that it would hurt me with people who would come out to vote for Measure LV," de la Torre said, referring to a slow-growth economic measure on the ballot that year.

De la Torre said he ran because he believed the Pico neighborhood lacked representation. The plaintiffs said most of the city's 13 percent of Latino voters are concentrated in the Pico area while the defense said it is still a majority white neighborhood. De la Torre is the husband of plaintiff Maria Loya, who mounted an unsuccessful 2004 run as a Pico Latina candidate.

"For me this lawsuit is about fairness and ensuring our community has more influence in who represents us in city council affairs and city government affairs," de la Torre said.

The defense has noted that two Latinos have been elected to the city council, including the current mayor pro tem, and a past mayor.

The trial, now in its fourth week, is expected to continue well into September.