Mission Viejo residents will have the opportunity to vote on their entire city council this November — a rare occurrence in local elections.
Although the city only wanted three members on the ballot this year, Orange County Superior Court Judge Walter Schwarm ruled that all five must be up for a vote.
It wraps up a long battle between the city and one resident, who claimed the city illegally decided two council members did not need to stand for reelection this year, despite their terms ending.
At the hearing Tuesday morning, Mission Viejo City Attorney Bill Curley did not challenge the decision.
But, he said after this year’s election, the city will not be able to have all five seats on the ballot for every election moving forward.
According to Curley, for the 2022 election, the city will consider designating some seats for four-year terms and the rest for six-year terms to stagger the next election.
All five seats would return to four-year terms for the following elections.
Aaron Hand, the attorney arguing against the city, said that implementing six-year terms is another attempt from the city to delay elections. Instead, he argued the city should designate two seats for four-year terms and three seats for two-year terms this year, with all five returning to four-year terms for the following elections.
“As to the suggestion that somehow the city believes it can somehow enact six-year terms, we think is a preposterous explanation,” Hand said at the hearing.
“If necessary, we could set a separate hearing on the issue because if the city were to call elections for six-year terms to try and once again use the judgment of this court to carry out its own bidding and agenda, that is going to be especially problematic.”
Schwarm said the conversation regarding term limits was not relevant to Tuesday’s meeting, as his only action was ordering two council seats to be up for election this year. He said the way the election is called is up to the city.
Curley said that when the city calls an election for this year, the wording needs to be carefully picked in order to avoid additional legal action.
“The city has the discretion to look at its code and determine the best way to implement that, taking into consideration the court’s action,” Curley said.
However, if the city does utilize six-year terms for the election this November, it could result in an additional legal challenge.
The council meets tonight, with a scheduled closed session discussion about the court case.
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The lawsuit stemmed from a series of events regarding the city trying to change its method of electing council members after facing a legal threat that claimed the current voting method disenfranchises communities of color.
Councilmembers Trish Kelley and Brian Goodell were elected to two-year terms in 2020 because of the expected changes to the election system, but the city voted for them to stay until 2024.
The city signed a legal agreement in July 2020 that all five council members would be up for reelection in 2022, but the city argued that agreement was only valid if the city moved to a cumulative voting system.
Cumulative voting would give people as many votes as there are city council seats up for election. Residents would be able to vote for multiple members or vote for one person multiple times.
Prior to 2022, Mission Viejo elections were conducted using an at-large model.
In at-large elections, residents citywide can vote for as many candidates as there are council openings. So if two seats on the council are up for grabs, residents can vote for two candidates.
In March 2022, the city moved to by-district elections in response to a lawsuit from the Southwest Voter Project claiming that at-large elections were racially polarizing and violated the California Voting Rights Act.
In by-district elections, residents can only vote for one candidate to represent the district they live in.
However, the city spent years trying to instead implement cumulative voting, although a majority of OC cities were moving to district-based elections after receiving legal threats from the Southwest Voter Project.
No other city in California operates using the cumulative voting model, but Mission Viejo city officials argued this was the best method to address the racially polarized aspect of at-large elections.
Ultimately, the efforts toward cumulative voting did not work because state officials said the city could not implement the system, causing the city to then move to election districts.
When the council voted to approve the new districts, the ordinance included details that Kelley and Goodell wouldn’t be up for reelection until 2024.
This vote sparked resident Michael Schlesinger to take legal action against the city and call for the two members to appear on the ballot in accordance with their term limits.
The tentative ruling voided the entire ordinance that the city adopted, but Schwarm amended the action to only void the section of the ordinance that included information about the 2022 election.
The city still has a demurrer motion, an objection that the opponent’s argument requiring the full council election is invalid because the agreement would only be implemented if the city adopted cumulative voting. That hearing is scheduled to be heard in September.
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The rest of the council members are also facing a lawsuit after California Attorney General Rob Bonta signed off on a request for quo warranto – the right to sue a public official for allegedly holding office improperly.
Schlesinger also filed the second lawsuit, claiming Bucknum, Sachs and Raths do not properly hold office because they were elected to two-year terms in 2018 and were never re-elected when their terms expired in 2020.
All three council members have been served with a summons and complaint, and their responses are due to be filed on July 11.
Angelina Hicks is a Voice of OC Reporting Fellow. Contact her at ahicks@voiceofoc.org or on Twitter @angelinahicks13.