Orange Sued for Allegedly Violating State Election Law

District elections could be implemented in Orange, following a voting rights lawsuit claiming the city’s current at-large election method disenfranchises the Latino electorate and hinders the election of Latino candidates.

“The imposition of at-large elections by the City of Orange has resulted in vote dilution for the Latino residents and has denied them effective political participation in elections to the five-member Orange City Council,” reads the Feb. 13 court filing by attorney Kevin Shenkman.

Shenkman is representing the Southwest Voter Education Representation Project (SVREP), a nonprofit that tries to increase Latino and other minority political participation through voter registration, networking and promote upcoming elections. The SVREP has also sued multiple cities across the state over at-large elections, including Mission Viejo.

Latinos make up 39 percent of Orange’s population, according to 2017 estimates from the U.S. Census Bureau.

Orange city officials said they won’t comment on the case because it the suit hasn’t been served to the city yet.

“Them not commenting and using the complaint hasn’t been served yet as an excuse is nonsense. This is not something that pops up all of a sudden … we tried to get them to switch their election system nearly two years ago. So, they know what the issues are, they know this is coming, not a surprise,” Shenkman said.

The city was sent a letter April 2017 by Shenkman, warning the at-large voting could be disenfranchising Latino voters and violating California Voting Rights Act.

“I believe I got a letter (from Orange), but it really didn’t deal with the issue. It was just about this is the color of this person’s skin and this is the color of that person’s skin,” Shenkman said. “We’re looking at who the preferred candidates of Latino voters are … it’s a pretty clear cut case.”

Shenkman was also the attorney for the voting lawsuit against Fullerton, which eventually led to voters deciding in 2016 to switch to district elections. Fullerton first used the district election system in 2018.  

The SVREP, represented by Shenkman, sued Mission Viejo, settled in July 2018 and agreed to implement cumulative voting in 2020, making it the first city in the state to use that type of voting.

Santa Monica is the latest city to lose a voting rights lawsuit. A judge ruled Feb. 15 the city must switch to district elections and adopt a seven-district map drawn by the plaintiff. The judge also ruled that all current council seats be vacated Aug. 15, so the city will have to conduct a special election in order to get a new City Council. Shenkman is also the attorney in that case and the City Council voted to appeal the decision.

Local politics and elections expert Fred Smoller, a Chapman University political science professor, said if Orange fights the lawsuit, the city will likely lose.

“They (cities) generally lose, particularly when you got about 40 percent Latino (population) and I think the failure to appoint Betty (Valencia) really tipped it,” Smoller said.

Valencia ran for City Council last year and came in third place in a race for two council seats. Many residents in the city wanted her appointed to fill a council vacancy after Mayor Mark Murphy vacated his council seat after winning the mayoral race.  

The City Council voted Jan. 22 to hold a special election in November.

“It’s not for me to substitute my opinion about what they should’ve done with respect to an appointment. I do find it a little bit odd that they didn’t. The reason being is because typically when a city council has a vacancy, they look to who got the next most votes in the last election,” Shenkman said.

The lawsuit also references the 2018 elections.

“Rather, in Orange’s recent elections – including the most recent election in 2018 – Latino candidates, preferred by the Latino electorate, were all defeated by the bloc voting of the non-Latino electorate. All of this reveals a lack of access for Latinos to the political process,” the lawsuit states.

Smoller said the City Council is to blame for the lawsuit because it voted last year to oppose the state’s sanctuary law, SB54.

“The city of Orange — they did this to themselves. Fred Whitaker (former councilman) was the chair of the OC Republican party and in April of 2018, Fred got the city in a meeting that went to like 2 in the morning, to sign on to the SB54 attack … which they simply could’ve left alone, but they symbolically signed onto an effort to get rid of the sanctuary law,” Smoller said.

Nearly 18,000 non-citizens live in Orange, according to estimates from the U.S. Census Bureau’s 2017 American Community Survey. Although, the survey doesn’t specify if people are documented or not.

Shenkman also noted the sanctuary city fight.

“And of course, more recently, they … did the anti-SB54 resolution and more recently (the December meeting) they got somebody pulling a knife in that City Council meeting because that person doesn’t like Betty Valencia. I mean, this is crazy,” Shenkman said.

Smoller said the sanctuary city law opposition by cities throughout OC last year is similar to the state Republican party in 1994 when it backed Proposition 187 along with former Gov. Pete Wilson.

The proposition allowed law enforcement to conduct immigration status checks on arrestees and restricted programs like healthcare, public school enrollment and other social services to legal residents and citizens. The law was eventually killed in 1999 after a series of court battles and after Gov. Gray Davis withdrew the case from the federal appeals court.

“They (Orange and other city councils) did not study what happened to Pete Wilson,” Smoller said, adding proposition 187 eventually significantly hurt Republicans. “The exact parallel. Pete Wilson wins a short term victory in the process, wins reelection and destroys his party … they’re (Orange City Council) doing the same thing.”

Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.