Defense testimony starts in Santa Monica voting rights trial

LOS ANGELES -- Allan Lichtman has agreed with plaintiffs' witness Morgan Kousser before, but not when he testified Thursday for the defense in a trial over Santa Monica voting rights.

Nearly a month after opening arguments, Gibson, Dunn & Crutcher LLP attorneys defending the city in a voter discrimination bench trial got their turn. Their first witness was Lichtman, the longtime American University historian maybe best known for predicting the outcome of the popular vote in every presidential election since 1984.

Lichtman is serving as a rebuttal witness to Kousser, the plaintiffs' key witness who testified that Santa Monica's at-large voting system does have a discriminatory effect because it breeds racially polarized voting. Racially polarized voting occurs when there is a disparity between a racial minority's candidate of choice versus a racial majority's candidate of choice.

Lichtman stated that polarized voting did not occur.

"I have come to the conclusion plaintiffs have not proven the system was adopted in 1946 with intent to discriminate against minorities, or maintained to discriminate against minorities," said Lichtman under questioning by Gibson Dunn partner Kahn Scolnick.

During questioning, Lichtman said he's a vehement supporter of minority rights but did not find evidence of discrimination in Santa Monica elections.

"I also am a firm believer that you can't apply a one-size-fits-all approach to any litigation. You have to apply an intense local analysis. ... I think you'll see there are very many distinctions of at-large elections in Santa Monica," Lichtman said.

Lichtman has testified in nearly 100 cases, mostly for the plaintiff, which have included the U.S. Department of Justice and the NAACP. The media-savvy professor turned and faced Los Angeles County Superior Court Judge Yvette Palazuelos when giving his answers, walking her through his findings and analysis. He said that Kousser, a friend who he's known for 45 years, was wrong in determining discriminatory intent.

"It is very difficult to prove discriminatory intent," Lichtman said.

The two scholars have been on the same side of the law before. They both testified for the plaintiff in a 9th U.S. Circuit Court of Appeals case, in which the court ruled the Los Angeles County Board of Supervisors gerrymandered districts in order to minimize Latino voter strength.

Such a method is called "cracking," where minority voters are diluted throughout an area. Lichtman said district elections in 1946 Santa Monica would have had a similar effect. Garza v. County of Los Angeles, 918 F. 2d 763.

Santa Monica is being sued by the Pico Neighborhood Association, and resident Maria Loya, who mounted an unsuccessful run for city council. The plaintiffs, represented by Kevin Shenkman, R. Rex Parris, Milton Grimes, and Robert Rubin, have argued Latino candidates from the Pico neighborhood are unable to win seats on the city council, a violation of the California Voting Rights Act.

They hope the judge will mandate a switch to districts. Pico Neighborhood Association v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

The plaintiffs point out the Pico neighborhood has the largest concentration of Latinos in the city, but no representation, while the defense argues the neighborhood is still majority white. One-seventh of the city council is Latino and Latino-preferred candidates have historically won elections since 2002, the defense said.

That one Latino candidate, Tony Vazquez, has been the only Latino-surname candidate to get elected to the council, the plaintiff said.