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Mission Viejo City Council members have opted to cancel elections for some of their colleagues, voting this past week to extend three of their members’ terms ahead of the 2020 election, leaving them in their seats for an additional two years without public discussion on the issue.
The council discussed the changes in closed session, and voted unanimously in open session to cancel the 2020 election without any conversation from the council. None of the three council members whose election were being discussed recused themselves from the vote that granted them new terms in office.
Under this decision, Mayor Brian Goodell and Councilwoman Patricia Kelley will run for council after their elections in 2016, but the remaining council members elected in 2018 are safe for another two years.
City officials also chose to file for a delay in updating their current voting system, which the city has admitted violates the California Voting Rights Act. If the delay is approved by a Superior Court judge, that system won’t be updated until the 2022 election at the earliest.
The request for the delay was also discussed in the closed session.
That decision comes after nearly two years of discussing revisions to Mission Viejo’s elections code, when a lawsuit against the city found their current voting system violates the California Voting Rights Act of 2001 as it disenfranchises minority voters.
“The violation is a mathematical one,” said Mission Viejo City Attorney Bill Curley in a phone call with Voice of OC on Thursday. “It isn’t an emotional thing like we’re trying to stifle the voices of this or that group, it’s just the way it works out.”
“We have to cure it, we know that, we’ve admitted it, we’ve acknowledged it.”
But nearly two years into the process, Mission Viejo has not made any changes to its voting system.
Currently, Mission Viejo uses a plurality vote system that gives voters a chance to allocate one vote to several candidates in a city-wide election. All candidates are on the ballot, and voters get to place one vote each towards as many candidates as there are open seats.
Rather than institute a voting district system similar to the way many other Orange County cities with the same problem have, Mission Viejo is trying to establish a new system called cumulative voting.
Under the proposed system, voters would still have access to all the candidates on the ballot, and would be given as many votes as there are positions on the ballot. However, instead of allocating just one vote per candidate, voters could give multiple votes to a single candidate.
Cumulative voting is utilized by other states, but has never been used by general law cities in California.
In September 2019, Curley gave a presentation to the council extremely critical of Secretary of State Alex Padilla’s stance on the implementation of cumulative voting, stating that it was entirely within Padilla’s power to open up access.
“The only impediment we have is Gov. Newsom’s administration or one wing of it saying they don’t want to,” Curley said. “We’re fighting with our own government to do the right thing.”
However, Curley received letters from Padilla over a year ago that said cumulative voting would not be an option in the 2020 election.
“We do not find any authority for the adoption of cumulative voting for the City of Mission Viejo,” Padilla wrote in a letter to Curley in May 2019. “The voting system currently in use by Orange County has not been certified for cumulative voting elections.”
According to Padilla, the only way the city could adopt this voting method is to pass legislation at the state level calling for its use, and it is not within the Secretary’s power to approve the method without direction from the state legislature.
Padilla also sent a letter expressing his “profound disappointment,” with Curley’s characterization of the city’s work to Mayor Brian Goodell.
“The Secretary of State’s office has NEVER agreed that ‘there are both strong merits and substantial obstacles presented (in Mission Viejo’s plan),’” Padilla wrote in a letter just last month. “As we have expressed repeatedly to the City Attorney…the Secretary of State’s office DISAGREES with the City Attorney’s claim that cumulative voting is currently authorized under state law.”
“To be crystal clear, I will state again that our office HAS NOT AGREED to draft or sponsor any legislation related to authorization of alternative voting systems. Our office offered ONLY to provide general input to any draft legislation.”
Curley has maintained that a district system would be a “sham” because there would be no way to establish a “majority minority” district in the city. The Hispanic vote represents just under 18% of the city’s population.
“We are proud of what we’re doing,” Curley said. “We’re all doing everything we can to add another arrow in the quiver…that might help a voting population have its voice be heard.”
Due to the city’s failure to establish a new system, Curley defended the council’s decision to extend their terms, saying that councilmembers are traditionally supposed to hold office for four years under a standard election.
“We have not changed yet the actual city ordinance on elections. The law as it is on the books is still four year terms. So we’re not really changing anything that’s not already in the law,” Curley said.
But the resolutions adopted by the city council ratifying the results of the 2018 election clearly state that council members Greg Raths, Wendy Bucknam and Ed Sachs would be serving two years. No exceptions were listed to extend their terms in those documents.
Members of the council also took to Facebook nearly two weeks ago to speak about how they would be serving through 2022 before any vote was taken.
Councilman Ed Sachs commented that he was not up for reelection this year on June 12 after a resident asked if he was attempting to build his image ahead of election season, over a full week before it was discussed by the council.
“I was not up for election in 2020. Up for election in 2022. Council members elected for 4 year terms. I was re-elected in 2018. It’s math. People are making you look foolish.” Sachs wrote underneath comments asking how he could extend his term.
At that time, the city’s website showed that all three council members’ terms would expire in 2020, but have since been updated to reflect the council’s decision to extend the terms to 2022 before a judge has agreed to the change.
When asked about the term limits, Sachs said there had been no changes made.
“This is what happens when idiots are allowed to use Facebook,” Sachs said. “Nothing was done with term limits or extending term limits, this is the fantasy of a few deluded people in the city.”
Sachs also appeared unsure if the city would even proceed with cumulative voting by the 2022 election.
“The 2022 election would be an election utilizing cumulative voting, or we may go to district voting, or we may go to some other form of voting to remedy the complaint,” Sachs said.
Voice of OC could not locate any posts on the city’s website informing members of the public about the change as of Friday.
For the city to continue using their previous system, they’ll need approval from the courts which is still being scheduled according to Curley, but he expects quick approval. If approved, it would give the city two more years to try and pass state legislation on its own to implement the cumulative vote system statewide.
“We’re going to file with the court to shove it off for two years to finish getting cumulative as a statewide option,” Curley said. “We need to push it down a little to complete it, we honestly have no expectation that a judge would say no.”
“If everyone’s in concert…courts like to solve problems not make problems.”
Noah Biesiada is a Voice of OC Reporting Fellow. You can contact him at email@example.com or on Twitter @NBiesiada.