Latinos More than Fairly Represented on Santa Monica Council, Defense Argues in Voting Rights Case

By Jorge Casuso

August 6, 2018 -- Latinos in Santa Monica are not only proportionally represented on the City Council, they are over-represented, making changing the City's at-large elections a case of fixing a system that "ain't broken."

That was the case made in the defense's opening arguments by Marcellus McRae, a partner in the law firm Gibson, Dunn and Crutcher, LLP, which is representing the City in a voting rights lawsuit that started last week.

While Latinos make up 13.6 percent of the city's voting age population, Tony Vazquez, who has been elected to the City Council three times, is one of seven council members, or 14.3 percent of the total number, McRae argued.

"This isn't a case about Latinos being able to break through in some great era where they can finally get representation on the City Council," said McRae according to a transcript of the hearing Wednesday. "They already have the representation."

Not only is there one Latino currently serving on the Council, McRae said, there are two -- the other is Mayor Pro Tem Gleam Davis.

"She is a Latino-preferred candidate," McRae said. "Her father is Latino. She was adopted by non-Latino parents.

"If we add her and Mr. Vazquez together, that's two out of seven, or 28.6 percent, of the city council is Latino. The CVAP (City Voting Age Population) again being 13.6 percent, 28.6 percent is more than twice 13.6 percent."

"So why are we here, your Honor? Why are we here?"

What the plaintiffs are asking, McRae said, is to toss out the democratic process and override the will of the voters, who twice rejected district elections -- in 1975 and 2002.

To show that the Latino vote has been diluted, McRae said, the plaintiffs would have to show that they could increase their ability to elect candidates of their choice under an alternative system.

"If you can't improve your ability to elect candidates of your choice in another system, the system ain't broken," he said. "So
there's nothing to fix."

The Voting Rights Act requires the plaintiffs to show much more than that racially polarized voting has taken place, which is the cornerstone of their argument, McRae said.

"If there were racially polarized voting without dilution, there'd be no harm. There'd be nothing to remedy," McRae said.

The Voting Rights Act's purpose "is not to end racially polarized voting," he said. "It is to end what can be the harmful effects of racially polarized voting which could be a diminution or dilution of voting rights."

The plaintiffs, McRae said, can't prove racially polarized voting or vote dilution and, in that case, there is no available remedy.

"The imposition of districts predominantly motivated by race would be
racial gerrymandering, which is unconstitutional," he said.

The cases of other cities the plaintiffs have been involved in are "irrelevant" to Santa Monica's case, including the suit against Palmdale where the plaintiffs prevailed, McRae argued.

In Palmdale, the citizen voting age population was almost half Latino, while in other cities it "was double, if not triple, the size of Santa Monica."

McRae then went on to challenge in the arguments that have been made by witnesses the plaintiffs plan to call as experts and comparing unfavorably the probable outcome under district elections for candidates preferred by Latinos.

In the 2014 and 2016 elections, McRae said, six candidates preferred by Latino voters were elected. District elections, he said, "would only potentially increase the likelihood of Latinos maybe electing one candidate of choice."

McRae also countered the plaintiffs contention that "it is the Pico neighborhood that doesn't have representation on the City Council because they can't get a candidate of their choice" elected.

The California Voting Rights Act, he said, "is not a neighborhood voting rights act."

"That's not what it's designed for, for people from a neighborhood in a city to come in and say... we don't want that guy, we want our guy from our neighborhood."

The City Council has not neglected the Pico Neighborhood as the plaintiffs, contend, McRae said. In fact, the City has spent nearly $95 million since 2001 to create or expand three parks and a build a library.

"Money is not everything, but that's a lot of money," McRae said. "And it certainly doesn't present any picture of neglect or marginalization or disrespect."