Under threat of a lawsuit, Brea City Council members are being forced to look at switching to district voting – a change to their election system city officials don’t want to make and residents are fighting against.

But after allegations that the city is violating the state’s voting rights act by disenfranchising Asian and Latino voters, officials have no choice but to join other cities in the county.

It also comes as two residents, and former council candidates, are suing the city in an attempt to block the switch to district elections – a first for a city in Orange County. 

[Read: Battle Breaks Out in Brea Over District Voting, City Contemplates Election Changes]

At their city council meeting last Wednesday, city council members spoke out against the change that would divide the city into districts and only allow voters to vote for one council candidate to represent their district, with the top vote getter scoring the seat. 

“I’ve always been vocally opposed to this. I don’t agree with districting. I think it divides a community. It serves no purpose,” said Mayor Cecillia Hupp at last week’s meeting.

In at-large elections, voters across the city can vote for as many candidates as there are council seats up for grabs. For example, if three seats are up for election, voters can vote for three candidates – the top three vote-getters are then elected to those seats. 

Councilman Steven Vargas said a switch would limit the voter’s voice as it would restrict who could recall a council member to voters in their specific district and called it problematic.

“We don’t like this process,” he said. “We don’t like being threatened and sued by lawyers.”

Brea officials are looking at switching their election systems to avoid a costly lawsuit after being threatened by Kevin Shenkman, an attorney representing Southwest Voter Registration Education Project, in 2019 to make the change voluntarily or go to court and likely lose.

Shenkman argues that 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 in an interview last week.

He also argues that representation on Brea’s city council has historically not been diverse and noted the city has never had an Asian American on its council.

But now for the first time in Orange County, a city is getting sued for contemplating a transition to district voting.

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Last Wednesday’s special council meeting was held one day after Attorney Steve Baric filed a legal complaint against the city on behalf of Richard Rios and Michael Kim, two Brea residents and former city council candidates, who are looking to stop the switch with a lawsuit of their own.

Shenkman had used both Rios and Kim lost campaigns in his 2019 warning letter as examples of vote dilution caused by the current election system in place in Brea.

But the two former candidates argue the switch to district elections would cause the problem’s the state’s voting rights act was created to avoid.

“The new District election method being purposed by the CITY will lead to vote dilution of protected class members and will lead to ‘racially polarized’ voting,” reads the complaint provided by Rios and Kim’s attorney.

Kim and Rios argue district elections would lessen voters’ voices.

“Under the current system they could vote for all five members of the City Council. However, under the new system they would be precluded from voting for 80 % of the city council. Thus, forever diluting the significance of their vote.”

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Despite criticism and a lawsuit from two residents looking to stop the switch, council members last week considered how they could potentially carve district boundaries in a city of around 30,000 voters and narrowed down their selection to two maps.

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.

None of the maps presented to the council created a majority Latino or Asian voting district. One map still under consideration would create a district with a 36% Latino voter population and a district with a 36% Asian voter population.

Other maps no longer being considered would have created a district with a 40% Hispanic voter population.

Jim Markman, the city attorney, said he’d love to fight Shenkman in court because of how the two communities are dispersed throughout the city.

“I think it’s a very close call with Brea,” he said “It’s hard to pick a district that really helps them very much compared to the percentages that they are of the whole city so it would be a fierce battle.” 

Council members, however, held off on introducing an ordinance transitioning away from at-large elections to district elections.

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In the 2019 letter, Shenkman argued “voting within the City of Brea is racially polarized, resulting in minority vote dilution, and therefore, the City’s at-large elections violate the California Voting Rights Act of 2001.”

“The City of Brea’s at-large system dilutes the ability of Latinos and Asians (both ‘protected classes’) – to elect candidates of their choice or otherwise influence the outcome of the City’s elections,” Shenkman wrote.

City councilman Glenn Parker said he believes district elections are disadvantageous, but the cost of fighting back against a lawsuit would be a significant financial expense.

“We truly could be talking about millions of dollars and even if it’s only five – for us, that’s a significant amount of money that could be used to benefit our community so do we really want to go down that road. But that doesn’t mean I’m not going to go kicking and screaming at each step of the process,” he said.

Markmen said cost isn’t the only thing that the city would risk battling it out in court, but the city  could also lose its ability to draw up the districts.

Shenkman has routinely represented people and groups who sue cities throughout the state over the last decade under the California Voting Rights Act.

Over the past seven years, cities in Orange County and across California have switched to district elections after facing similar legal threats.

A couple of residents spoke out against the switch during last Wednesday’s meeting, including Heidi Gallegos, Emeritus CEO of the Brea Chamber of Commerce.

Gallegos said district voting could have negative impacts on the city’s economy.

“With almost 30% of the city’s budget dependent on retail sales tax, we, the board, are concerned about the potential lack of representation on the council that could impact and or increase fees or create other economic hindrances to businesses,” she said. 

Sean Thomas, a resident and former city council candidate, spoke in favor of the switch.

“This will give an opportunity to those who don’t have a lot of resources a chance to run for election,” he said. “The people with the money and the resources in this city or in any city …  control what happens during elections.”

Dwight Manley, resident and business owner, criticized the switch to district elections and called on the council to wait until lawsuits in other cities are sorted.

“We don’t have to say we’re never going to district, but it behooves us to not break the champagne glass that can’t be put back together and take a timeout while this Santa Monica and Irvine situation are resolved,” he said.

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 either facing threats of litigation or lawsuits themselves.

Anaheim and Mission Viejo have also been forced to change their election systems.

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

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