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Mission Viejo is looking for an alternative to solve its racially polarized voting problem after the City Council unanimously decided district elections won’t work for the city in an unusual move for an Orange County city struggling with racially separated voting attitudes.
“The underlying effect here is that we do recognize that we have an issue based on the low-bar from the California Voting Rights Act, so that we do need to do something,” Mayor Ed Sachs said in a Feb. 16 phone interview. “Districting may not work especially in our city. We tried to create a majority-minority district and it looked like ink blotch spots. The professional demographer could not do it.”
The city received a demand letter from Malibu-based elections rights attorney Kevin Shenkman Sept. 29 that warned the city’s at-large city council districts violate state law. The letter spurred five legally required public hearings and public input on potential district maps. In his letter, Shenkman said Latino representation has been scarce throughout the city’s history and there hasn’t been a Latino on the council in over nine years.
According to the 2010 Census report, there are 93,300 residents in Mission Viejo. Nearly 70 percent are white, 17 percent are Latino, nine percent are Asian and just over one percent are black.
The Feb. 13 meeting was the first time the council publicly discussed district elections and gave their opinions on the issue. At previous hearings on district elections, council members heard residents’ opinions, viewed maps, then moved on to the next item without discussion.
City Attorney Bill Curley said, during the meeting, state law sets low requirements for proving there is racially polarized voting. None of the council members disputed the city has racially polarized voting.
“Again, it keeps coming back to that simple question: Did the minorities vote differently from the majority? If the answer is yes, then you’re polarized — it’s that simple. The California bar is so low, compared to the federal bar. It’s almost inescapable,” Curley said. He mentioned the city could do an educational outreach or adopt a system where voters get to cast ballots for more than one council candidate to help address the racial polarization.
In a system called weighted/cumulative voting, each voter gets a certain number of votes based on how many seats are up for election. For example, if three council seats are up for election, a voter may cast one vote for each of three candidates, two votes for one candidate and one for another or all three votes for one candidate, according to the Cornell Law School website.
“It’s not that common across the country. Districts are certainly the more common remedy (to racially polarized voting),” Shenkman said in a Feb. 15 phone interview.
He said he’s going to work with the city in “a good faith effort to do the right thing.”
“Prior to receiving a call from the city attorney today, we were actually getting ready to file a lawsuit next week,” Shenkman said. “To their credit, they came out and admitted they are in violation of this law. I don’t think they are in a position now to not change their election system at all.”
Shenkman, from the Malibu-based Shenkman & Hughes law firm, sent a similar letter to Lake Forest last year and represented a plaintiff in a voting rights lawsuit against Fullerton that ultimately switched the city to district elections last year. Lake Forest also switched to district elections late last year.
Councilwoman and former Mayor Cathy Schlicht said the council should have discussed the district elections and presented the other options at the previous four public hearings on the issue. She said district elections was the only solution offered until the Feb. 13 meeting and Curley’s alternative suggestions came as a surprise.
“I think in the very beginning the city attorney should have included in his report examples of other options. It shows door number three without knowing what’s behind it,” Schlicht said in a Feb. 16 phone interview. “They (the City Council) should’ve had some discussion and made some inquiries about what the other options are.”
But the city didn’t know for a fact that it had racially polarized voting until a week and a half before the meeting, Sachs said.
“We didn’t know we had a legitimate concern until it was pointed by our demographer until about 10 days before the meeting,” Sachs said. “It’s not like we’re trying to hide anything.”
The demographer is Deborah Diep with Cal State Fullerton’s Center for Demographic Research.
At the meeting, Diep said they analyzed the Latino vote for Measure D, a land use measure, and found the Latino community voted for it, while the majority community voted against it. She said the analysis proves the city has racially polarized voting.
While Curley didn’t offer any specifics on how alternatives would work in the city, council members directed staff to look into alternatives and report back at the council’s next meeting.
“So if and when we ever had to go to court and (the judge) asked do you have (racially polarized voting) … and said ‘yeah, we have this and are looking for solutions’ … there’s not a judge I know of that would penalize us for trying to find” an alternative solution, Sachs said during the meeting.
The demand letter is the result of a law Gov. Jerry Brown signed in October 2016 that provides an out-of-court process where attorneys can work with cities to move toward district elections. Once the city receives a demand letter, like Shenkman’s, it has a timeframe to begin public hearings and study the city’s racial make-up.
Under the law, attorneys seeking to eliminate at large voting have to wait 45 days after the city receives the letter before they can take any court action. Mission Viejo unanimously passed its resolution of intent to move toward district elections Oct. 24 and, according to the law, had 90 days before Shenkman could take any action against them.
The law also caps any fees Shenkman may charge at $30,000, as long as he provides the financial documents to support that amount.
Meanwhile, residents who spoke at the City Council meeting were divided on whether or not to switch to districts. Many, including two former mayors, said they wanted council members to discuss the issue.
“This is the first time we’ve had the opportunity to hear you discuss this,” former Mayor Gail Reavis said. “Personally … I don’t like the districts, but Cathy (Schlicht) has convinced me that switching is not a bad idea. We would have more access to our council person if we have a small district and a smaller group.”
Resident Nancy Sandoval, who noted she’s Latino, said the city shouldn’t give in to outside pressure and expressed her desire to stay with at-large elections.
“I hadn’t noticed any polarization of any kind and I think we are just trying to be very politically correct in trying to do this,” Sandoval said. “I don’t think we should give in to the pressure of this so-called polarization. I think it’s a fallacy. You should fight it. “
The council expressed its opposition to district elections during council discussion.
“The fact is, in Mission Viejo, we have about a 17 percent Hispanic population, by the way, this (demand letter) is only concerned about the Hispanic population,” Councilwoman Trish Kelley said.
Councilwoman Wendy Bucknam admonished Reavis and Schlicht for supporting district elections.
“I’m actually disappointed to see that some of our former council members are in favor of the districts … it’s shocking actually,” Bucknam said. “It’s not a conclusion that I can draw.”
Correction: An earlier version of this story reported the demographer analyzed Measure M, a school bond measure. She actually analyzed Measure D, a municipal land use measure. Voice of OC regrets the error.
Spencer Custodio is a Voice of OC reporter who covers south Orange County and Fullerton. You can reach him at email@example.com.