Brea City Council members are taking a serious look at switching to district voting – one of the latest cities in Orange County to do so – after facing allegations that their current system violates the state’s voting rights act by disenfranchising Asian and Latino voters.

City officials in Brea find themselves entangled in a debate that has played out in Orange County cities and in courtrooms over recent years regarding election systems and the representation they generate at the local level.

Now two Brea residents and former city council candidates, Richard Rios and Michael Kim, plan on taking the city to court to block the switch — a first for a district election effort in OC.

Brea City Manager Bill Gallardo said in a Tuesday afternoon phone interview the city has yet to receive the complaint and couldn’t comment on the matter.

“I’m aware that something’s coming. I don’t know what it is,” Gallardo said.

Steve Baric, the attorney representing Kim and Rios, said they are arguing the current at-large election system gives voters the greatest voice and that there has been a history of diverse representation on the council.

“Their ability to vote for all the people representing them, all five, which is how it works under the current system gives them the most voice and gives them the most power and by going into districts and only allowing them to vote for one council member, you’re taking power away,” Baric said in a Tuesday phone interview.

He also argued that the city currently has a diverse council that includes women and a Latino councilman.

“Maybe in bigger cities and other cities with a history of racially polarized voting there might be issues that would require districts but the city of Brea isn’t one of them,” Baric said.

Baric said the switch to district elections would cause the problem’s the state’s voting rights act was created to avoid.

But attorney Kevin Shenkman say that the city has historically not done a proper job of representing Asian and Latino communities and their interests on the dais.

“The election of one member of a minority community at some point in the city’s history, does not mean that they can have at-large elections,” Shenkman said in a Tuesday phone interview.

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Tonight, council members are expected to hold a public hearing at 7 p.m. and might choose a district map, as well as introduce an ordinance transitioning away from at-large voting to district elections.

The city has been examining the issue since Shenkman sent Brea officials a warning letter nearly three years ago.

Gallardo said that Shenkman’s letter caught the city by surprise.

“We want to make sure that we are doing everything we can to support our community’s efforts to select the best candidate,” Gallardo said.

He also said it was “unfortunate” that a lawyer not based in Brea can come to a community and force them to change to district elections.

“But that’s the process we have today and that cannot be changed unless the state makes some other modifications,” Gallardo said.

Shenkman, one of the founding attorneys for the Shenkman & Hughes law firm based out in Malibu, has routinely represented people and groups who sue cities throughout the state over the last decade under the California Voting Rights Act.

Usually, these efforts are successful and in recent years cities like Garden Grove, San Juan Capistrano, Fullerton, Orange and Santa Ana have made the switch from at-large elections to district elections.

“Every defendant that has been sued under the California Voting Rights Act … either the case is pending or they’ve already switched to district elections,” Shenkman said.

In at-large elections, voters get as many votes as there are seats up for election. For example, if three city council seats are up for grabs, all city voters get three votes.

In district elections, voters get to vote for only one candidate living in their district. For example, if a District 1 West Anaheim council seat is up for grabs, the voters living in that district only get one vote.

A May 2019 warning letter Shenkman sent Brea forced officials to examine district voting because he alleged the current system disenfranchising voters of color.

Following the letter, Brea officials were left with two options: look into transitioning from “at-large elections” to “by-district elections” and address the issue voluntarily or face a lawsuit.

In the letter, Shenkman said the city’s current system violates state law by disenfranchising Asian and Latino voices, two communities that are growing in the city and argued the communities have historically been underrepresented on the city council. 

He also noted the city has never had an Asian council member.

“Given the historical lack of representation of Asians and Latinos on the Brea City Council in the context of racially polarized elections, we urge the City to voluntarily change its at-large system of electing its city council members. Otherwise, on behalf of residents within the jurisdiction, we will be forced to seek judicial relief,” read the letter.

Shenkman included both Rios and Kim’s lost campaigns in 2004 and 2014 respectively as examples of vote dilution caused by the current election system in place in Brea.

“Despite significant support from the Asian voters of Brea, Mr. Kim lost that election. Similarly in 2004, Mr. Richard Rios sought a seat on the Brea City Council and despite significant support from the Latino community, Mr. Rios lost that election,” reads the letter. 

The two former candidates are pushing back against the notion that they lost their campaigns because of Brea’s election system.

“These two individuals are suing to say, ‘actually, no, we don’t need districts. I didn’t lose my election because of racially polarized voting or vote dilution,’” Baric said.

Shenkman said that argument reflects a lack of understanding of the law and said it was rejected by the U.S. Supreme Court back in 1986.

“There’s actually no way to show that someone lost an election because of something so the only relevant fact is that that person lost the election and what sorts of levels of support that person received in those elections?” he said.

Since Shenkman’s letter, Brea officials have been taking steps to cut up the city into districts after making the agreement with the law firm to curb a lawsuit.

In June 2019, council members adopted a resolution stating their intent to transition to district voting after they get the results of the 2020 census.

Baric, who said they’d be filing the complaint on Tuesday afternoon, is looking to get council members to delay the public hearing on district elections and the overall efforts until a court can weigh in.

Census results from 2020 show the city has a citizen voting age population of nearly 30,000 people – 51% are non-Hispanic white, 27% are Hispanic and 19% are Asian/Pacific Islander residents, according to the city’s demographic census summary.

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Brea’s not the first Orange County city to tackle the issue.

Anaheim ended up making a switch to district voting after settling a lawsuit in 2014 from the ACLU that alleged at-large voting was disenfranchising Latino voters. City officials over there spent over a million tax dollars in the process fighting the lawsuit.

Mission Viejo was also hit with a voting rights act lawsuit in 2018, which alleges the city’s at-large voting system disenfranchises minority voters.

[Read: Mission Viejo Resident Alleges Three City Council Members Illegally Extended Their Terms]

Shenkman said switching to district elections is about every community having a voice in their city government.

“In an at-large election system, a community’s vote oftentimes doesn’t matter one bit. If a minority community has even 40% of the vote, in an at-large system, they could very well end up with zero representation and that’s a problem,” Shenkman said.

Meanwhile, Baric said district voting is a good idea for some cities to help increase civic participation in disenfranchised communities, but in Brea it will have the opposite effect.

“I think it will adversely impact people that are traditionally disenfranchised, and I think it will magnify the ability of outside interests through the force of their money in their contributions to exert influence over people who can’t fight back,” he said.

“This is a very Brea specific lawsuit.”

It is not just cities transitioning their election systems. but school districts are doing so as well.

The local school district in Brea – Brea Olinda Unified – started their switch to district elections back in 2020.

Hosam Elattar is a Voice of OC Reporting Fellow. Contact him at helattar@voiceofoc.org or on Twitter @ElattarHosam.

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