Santa Monica election trial ends with question: What makes someone a Latino?

LOS ANGELES -- Before almost six weeks of evidence presentation ended Tuesday in the trial over whether Santa Monica's voting system is discriminatory, testimony returned to an early dispute: What makes someone a Latino?

Racial identity took center stage with the city's last witness, Mayor Pro Tempore Gleam Davis, in the rare bench trial challenging Santa Monica's at-large election system.

The lawsuit alleges that as a result of discriminatory intent, only one Latino candidate has been elected under the city's at-large system in 72 years. Plaintiffs' attorneys argued a district system would equalize minority voting power.

The city argues the system has empowered minorities all along. Pico Neighborhood Association v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

Plaintiffs are not counting Davis, who is part Latina, as one of the Latino candidates elected to the city council because they argue voters would not be able to identify her as one in the ballot box.

Defense attorneys argued the issue was not about racial perception but racial self-identification. Since Davis identified as part Latina, the defense argues two Latino candidates have been city council members. The other one, Tony Vazquez, was a mayor.

Under direct questioning by Gibson, Dunn & Crutcher LLP defense counsel Marcellus McRae, Davis said she was adopted by white parents but is part Latina by blood.

"By birth I am Latina but raised in a non-Latino household," said Davis, who opposes district elections in the city.

McRae asked her if her Latina heritage was a matter of race or ethnicity.

"I consider it a matter of ethnicity," she said, adding that on forms she's identified her race as white.

McRae also questioned Davis about how she knew she was Latina. Davis said her birth mother told her adoptive mother that her father was Mexican, which plaintiffs' attorney R. Rex Parris said was double hearsay.

"We all know what is relevant here is that the voters know whether she may or may not be Latina. There is zero evidence that she conveyed that to voters," said Parris.

"You can get into that in cross-examination," said Los Angeles County Superior Court Judge Yvette Palazuelos, allowing McRae to proceed.

During cross-examination by Kevin Shenkman, another plaintiffs' attorney, Davis was asked about a survey of city voters gauging the perception of candidate ethnicity. Davis was rated 2.8 out of 10.

"What this shows me is if you have a Latino last name, people perceive you as Latino," Davis said.

Santa Monica, long known as a liberal enclave, has been accused of not being liberal enough. The lawsuit, filed on behalf of the Pico Neighborhood Association, challenges the city's compliance with the California Voting Rights Act.

The lawsuit alleges the Pico neighborhood, which has a majority white population, also has a large concentration of Latinos who have been unable to elect their choices to the city council.

Critics of the lawsuit said it has taken advantage of the law because plaintiffs only need to show racially polarized voting. Polarized voting occurs when the racial majority's candidate of choice defeats the racial minority's candidate of choice.

The plaintiff said only one Latino -- former mayor Vazquez -- has been elected while the defense has framed the issue as being about Latino-preferred candidates, not necessarily based on their race.

In that scenario, Latino-preferred candidates, which include non-Latinos, have historically won elections since 2002, the defense said. Gibson Dunn attorneys said plaintiffs cannot prove voter dilution.

Discriminatory intent was also a major issue disputed by key expert witnesses on both sides. Morgan Kousser, a social historian, said the city's at-large system was installed and maintained with that intent.

Gibson Dunn countered with another historian, American University professor Allan Lichtman, who said although he has previously agreed with Kousser, he could not make a finding that discrimination had taken place in Santa Monica.

He said at-large elections gave residents more choices and cited white and black civil rights leaders from the city who did not oppose a switch to at-large elections years ago.

Earlier in the day, the judge issued $21,000 in discovery sanctions against the plaintiffs, ruling they engaged in a "misuse of discovery process" over the release of emails tied to the Pico Neighborhood Association. The plaintiff said the emails were insignificant and it was not intentionally hiding anything. The defense was seeking about $54,000 in sanctions.

Testimony has often slowed to a crawl as a result of attorney objections and disputes.

Throughout the trial, Plaintiffs sought to dig up what they claimed was a city-commissioned report showing racially polarized voting, but the judge ruled the work of a city consultant was privileged work-product information.

There will not be any oral closing arguments. Parties now must submit closing briefs. The judge has given no deadline for her decision.