Mission Viejo has been sued for its admitted violation of state voting law after failing to switch its city council to district elections.

Attorney Kevin Shenkman filed the lawsuit within days of learning Mission Viejo Mayor Ed Sachs circulated an online newsletter March 10, which said the city was safe from a district elections lawsuit. Currently, city council candidates run “at large,” meaning they are selected by voters citywide. Sachs did not return a voicemail seeking comment.

“Indeed, most recently the Mayor of Mission Viejo has stood in the proverbial schoolhouse door — using the City of Mission Viejo’s maintenance of an at-large election system that dilutes the vote of Mission Viejo’s minority citizens in contravention of state law to grandstand to local media outlets and reactionary political supporters,” reads the lawsuit filed March 22 by Shenkman.

Mission Viejo considered district elections after it received a Sept. 29 letter from Shenkman warning the city its voting system was racially polarized and demanding it fix it.

It’s an issue that has hit a number of Orange County cities in recent years, including Anaheim, Fullerton and Lake Forest. Santa Ana is in the middle of a political fight over whether it should put the district elections issue on the June primary election ballot. The city council has filed a lawsuit against the mayor. for refusing to sign the papers that would put it on the ballot.

The Mission Viejo City Council unanimously voted to reject switching to district elections at the last public hearing, Feb. 13, and instead decided to look into alternative forms of voting like one known as cumulative voting.  The move surprised residents who called on the council to discuss the issue throughout the public hearings. Unlike other cities that have wrestled with the state voting law, the only time the Mission Viejo council gave their thoughts on the issue was at the last public hearing.

Cumulative voting gives registered voters more than one vote, based on how many city council seats are up for election. For example, if three seats are up, a voter can cast one vote for each of three candidates. Or the voter could vote twice for one candidate and once for a second candidate. Finally, the voter could cast all three votes for a single candidate.

City Attorney Bill Curley said the court can help implement an alternative voting system and noted voting officials don’t like alternative voting systems. “Both the (California) Secretary of State and ROV (county Registrar of Voters) don’t smile upon alternative structures.”

“Shenkman had put forth the notion of what we call a friendly lawsuit to get the court to give an order upon a settlement,” Curley said in a Monday phone interview. “We could then workout the settlement terms and get the judge to say, ‘I approve’ and then the circumstances move forward. The city of Santa Clarita did that a few years back … for their alternative voting structure.”

Curley also said the registrar of voters doesn’t have voting machines capable of handling an alternative voting system and a judge’s order can help resolve that.

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.

At the Feb. 13 public hearing, the Cal State Fullerton demographer the city hired said while there is racially polarized voting in Mission Viejo, drawing a district map that would have given Latino residents a majority was impossible. The Latino population isn’t concentrated in one part of the city. Instead it is spread throughout the community.

Shenkman said going through the court is necessary because he thinks the City Council doesn’t have the legal authority to switch to anything but district elections.

“I think that through a court action, there is the ability to change all sorts of things. But absent the court action the council itself cannot do certain things like change to … cumulative voting, staggered elections,” Shenkman said in a Monday phone interview. “There’s a lot of tools the court has that the council does not have.”

He said he hopes Mission Viejo will be cooperative throughout the process.

“I think it, for a lot of reasons, requires our involvement. It requires court oversight, and in any of the cases we have ever filed, we continue to hold out hope that the jurisdiction will be cooperative,” Shenkman said.

When asked if Mission Viejo is being cooperative, Shenkman laughed.

“No comment.”

Spencer Custodio is a Voice of OC reporter who covers south Orange County and Fullerton. You can reach him at scustodio@voiceofoc.org.

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