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Is Mission Viejo guaranteed it won’t be sued for not creating individual districts to elect its five city council members?

“Bottom line here folks is that Mission Viejo is no longer threatened with a lawsuit demanding we move to district voting in the city,” Mayor Ed Sachs wrote March 10 in a personal newsletter to his subscribers.

Not so fast, responded election rights attorney Kevin Shenkman, who sparked the city’s study of district elections as a possible replacement for the current citywide elections.

“I think the most important thing is I didn’t say that or anything remotely close to that,” Shenkman said in a phone interview. “But Mayor dickhead (Sachs) decided to jump the gun and decided to talk about how district elections are off the table, before even attempting to gain understanding of other potential remedies.”

What caused the confusion?

Mission Viejo has been considering district elections since it received a Sept. 29 letter from Shenkman warning the city it had a racially polarized voting system 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 five Mission Viejo City Council members never gave their views on being elected by district, until the fifth and final public hearing. In the end, a unanimous council voted Feb. 13 to reject the switch from at-large elections to district-based elections and instead explore “alternative” options to fix the voting problem it admits is racially polarized under the California Voting Rights Act.          

Shenkman’s Sept. 29 letter warned the city its at-large city council districts violate state law by diluting the Latino vote. 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. But when the city looked at ways to draw district boundaries that would give Latinos and Asians a stronger voice, it found minority voters were too scattered throughout the community to draw sensible district lines.

The council now is looking at alternatives, possibly including a system called “cumulative voting,” an idea proposed by City Attorney Bill Curley during the Feb. 13 final council hearing on district elections.

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 opt to cast all three votes for a single candidate.

Sachs said his news letter was based on a report he received from Curley, who spoke by phone with Shenkman after the Feb. 13 city council meeting that turned down the district election option.

Curley said in a March 14 phone interview with a reporter that he discussed the council’s decision with Shenkman and later Shenkman called him again.

 “He (Shenkman) called me about two weeks later, and said ‘I had my experts look at it and they agree with you. It is kind of a unique situation that you can’t really do something with districts.’

“Practically, Shenkman agrees that districts are not really feasible, so why would he sue and say ‘court, compel them to go to districts even though I agree they don’t make any sense in that city?’”  Curley asked.

In his newsletter, sent from his personal email, Sachs wrote an account of the conversation between Curley and Shenkman but later said it was a “joke.” 

After the March 13 council meeting, Sachs told Voice of OC the emailed account of the conversation was part of his “imagination.” 

“That isn’t a transcript of the conversation,” Sachs said. “The end result isn’t a joke … It wasn’t meant as a rib or anything. It was just a joyous representation of the city’s path.” 

Shenkman clarified that he didn’t throw away the possibility of districts.

“This is maybe a bit of a nuance here — but in my view, districts would be a remedy, but likely not the best remedy in Mission Viejo,” Shenkman said. “But to say that districts are not a remedy is a mischaracterization … districts are the only really safe harbor (under state law) for better or for worse. And we operate based on what the law is and not what the law should be.”

He also said the city may think Shenkman is backing off and “we’re (Shenkman and his client) not going to do anything, [the city] got Shenkman to back down and that’s just not what happened.” 

During the March 13 meeting, Councilwoman Wendy Bucknam asked Curley to summarize his conversations with Shenkman about the city’s rejection of districts and its potential alternatives.

“They (Shenkman and his staff) had confirmed that our findings were correct: that districting would not solve the racial polarization in town,” Curley said.

“That he appreciated, that the council did an above board — took responsibility, acted in a professional manner. That we are moving forward to a solution,” Curley said. “To look to a solution that makes sense and that’s where we left it …  I told him we’d be forming an ad hoc committee to help us.”

The council appointed Mayor Pro Tem Greg Raths and Councilwoman Trish Kelley to the ad hoc committee.

But Shenkman said the committee could complicate things.  

“There’s no reason for a committee for this kind of thing … I’ve litigated these issues.” Shenkman said. “And frankly having a city council committee on this thing probably just gets in the way.”

In addition to sending the newsletter to his email list subscribers, Sachs tweeted a link to the newsletter March 10 and declared “Mission Viejo WINS!”  

“We’re going to fix it, we don’t see districting as a viable solution. If someone wants to consider that a victory, then fine,” Curley said March 14.

Shenkman said Sachs is using the district elections issue to further his political career.

“It was political grandstanding, let’s call it what it is. And I get that, you know, in some cities, in some circles, I’m the boogeyman and politicians can score political points by claiming that they slayed the boogeyman,” Shenkman said in a March 14 phone interview.

According to the Registrar of Voters candidate list, Sachs is running for the 73rd Assembly District seat against fellow Republican Bill Brough, who was first elected in 2014.

Former Mayor Cathy Schlicht told the council it should have discussed alternatives to solving racially polarized voting well before its decision to reject districts.

“At the public hearings, other remedies available were never discussed, and what case law do you have to back up those other unknown remedies?” Schlicht said. “Listening to this council speak at the February 13th public hearing, it was obvious to me that you do not have a grasp on the purpose of the CVRA (California Voting Rights Act). You were using sound bites as if they were Kodak moments. I think this process is over your head.”

Schlicht concluded, “Wendy Bucknam announced at the Casta del Sol Republican Club on Sunday that the city is not going to be sued. And now Ed (Sachs) has declared in his latest newsletter that Mission Viejo wins, Mission Viejo vindicated.”

Curley aggressively responded to Schlicht’s comments.

“What you just heard cannot be more legally, factually or intellectually wrong. I can only conclude it’s a calculated effort to attack the city. It is so grossly wrong that I’m embarrassed for the speaker,” Curley said. “But everything we’ve said, everything we’ve done is well within the law and when it comes to who doesn’t grasp it, I think we just had a demonstration of who doesn’t.”

Kelley, during council comments at the end of the meeting, reminded everyone Mission Viejo’s word of the month is “integrity.”

“Our character word, for March, is ‘integrity,” Kelley said.

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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