Under the threats of costly lawsuits, elected officials in Orange County have increasingly found themselves forced to switch to district voting after various groups claimed current election systems disenfranchise minority voters.

But this year, city council members in some of the county’s smaller cities like Cypress and Brea have pushed back against those claims, refusing to change their election system.

“We’ve got several other cities that have decided to stand up and fight and maybe we need to consider standing up and fighting,” Brea Mayor Cecilia Hupp said at the April 5 council meeting.

The resistance from some city council members is setting the stage for legal battles between cities and a lawyer who has found success fighting these types of cases in court across the state – Malibu-based attorney Kevin Shenkman. 

Shenkman has made a name for himself representing voting rights groups and forcing cities across California to switch their election systems under the state’s Voting Rights Act.

He argues at-large elections disenfranchises voters of color and keeps people of color out of office.

“It’s important that every neighborhood, every community has representation in their local government. When they don’t, bad things happen. People start losing faith in government and certain communities and neighborhoods get shit on,” he said in a Thursday phone interview.

Shenkman’s reputation has gotten to the point where a letter from him sent to city officials warning their current election system disenfranchises minorities is usually enough to get cities to make the switch from at-large elections to by district elections.

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 by-district elections, residents can only vote for one candidate to represent the district they live in. Candidates have to live in the district they seek to represent.

Officials in Brea and Cypress, as well as some residents, have argued against by-district elections because they say it strips them of their ability to vote for candidates running for each seat up for grabs in an election.

In Irvine, one of the bigger cities in the county, officials have also faced similar allegations of violating the state voting rights act and have been threatened with a lawsuit. Last week, they also opted not to change their system.

In cases where California courts have ruled on election lawsuits, judges routinely ruled at-large voting systems violate the state’s voting rights act.

Shenkman said chances of winning for the cities that do go to court are very slim.

“Just look at the results of every other CVRA case ever filed,” he said. “I bet every one of them that got sued wishes they had just made the change.”

Many cities have opted to comply with his demands rather than go to court.

Irvine Opts Not to Switch to District Elections

Irvine City Council meeting on June 22, 2021. Credit: JULIE LEOPO, Voice of OC

At their public meeting last week, Irvine City Council members narrowly rejected switching to district elections.

While Shenkman also sent a letter to Irvine last year telling them to switch to district elections or be sued, he said he hasn’t filed a lawsuit yet, and the city council appears split on whether or not they’ll make the leap. 

Shenkman argues the shift is needed to avoid racially polarized voting in the city, the city council has argued that the city’s too integrated for that to do anything, pointing to the fact that three of the five serving council members are people of color. 

[Read: Irvine Voters Might Get Choice To Expand City Council, Switch to District Elections]

However, some have argued it would work well for Irvine because of the city’s layout in “villages,” professionally planned neighborhoods that dominate the city’s housing development. 

Councilman Larry Agran tried to introduce a measure at the council’s meeting last Tuesday to both implement district voting and increase the council’s size from five to seven members, arguing it would increase representation for neighborhoods across the city. 

“District elections are not just about matters of race, they’re about matters of better representation,” Agran said. “We’re the largest city in the state of California without district elections … we will definitely have district elections, whether it’s by court order or a vote of the people.” 

Ultimately, the council voted 2-3 on moving forward with district elections, with Councilmembers Mike Carroll, Anthony Kuo and Tammy Kim against it, while Agran and Mayor Farrah Khan voted in favor. 

Agran then tried to vote on just placing a ballot initiative to increase the council’s size from 5 to 7 without district elections, but that failed to pick up support from any of his colleagues. 

Kim asked to make a subcommittee of two council members to study the issue and potentially put it on the ballot in 2024, but no one else signed on. 

Cypress Sued Twice

Cypress City Council members decided to push back on Shenkman after he threatened legal action against them.

So Shenkman, on behalf of his clients – Cypress residents Katie Shapiro and Malini Nagpal as well as the Southwest Voter Registration Education Project – made good on his threat and filed the lawsuit last month.

[Read: Cypress Sued For Violating Voting Rights Act After Refusing District Elections]

On Friday afternoon, city council members held a special meeting where they voted 4-1 to create an ad hoc subcommittee made up of Mayor Paulo Morales and Councilwoman Anne Hertz-Mallari to advise Gallante and City Manager Peter Grant on the lawsuit.

They also authorized Grant to retain special legal counsel over the case.

Councilwoman Frances Marquez was the dissenting vote Friday and said she has concerns about being left out of the discussion.

“I wanted the city to do the right thing and go to district elections and I don’t think it’s a good idea to have an ad hoc committee. I think all of us should know what is happening,” she said. “I think it’s really important that you have people with diverse opinions on the committee.”

Marquez was the only council member who voted against rejecting Shenkman’s letter and has publicly accused her colleagues of not wanting to switch elections because they’re worried they’d be put in the same districts.

Her colleagues censured her in June for allegedly violating the state’s public records act, a couple of city policies and codes, as well as for disclosing closed session information.

Cypress Civic Center on April 17, 2022. Credit: AYDA TUNCAY, Voice of OC

Shenkman said the council members have a fiduciary duty to their city.

“It is not appropriate to spend millions and millions of taxpayer dollars to gain some perceived political advantage for themselves,” he said.

“Be grownups. Do the right thing for your city.”

Morales did not respond to a request for comment.

The lawsuit comes months after a majority of council members voted behind closed doors in March to reject a similar letter Shenkman sent them accusing the city of violating the state’s Voting Rights Act by allegedly disenfranchising Asian American voters.

Cypress City Attorney Fred Galante – in a response letter to Shenkman – has argued that no areas in the city have a high concentration of minorities under the state’s voting rights act.

“​​It would be impossible to show that districts would enhance the ability of any protected class to elect candidates of its choice or influence election outcomes. To the contrary, splitting up the votes of those protected classes would have the effect of preventing them from voting as a larger class to elect a candidate of their choice,” Galante wrote.

The March decision landed Cypress officials in more than one lawsuit.

Californians Aware (CalAware), a prominent First Amendment and transparency group, filed a lawsuit against the city in May over the closed door vote – accusing city officials of violating the Brown Act, the state’s government open meeting law.

[Read: Cypress Officials Face Lawsuit For Allegedly Violating State’s Open Meeting Law]

Could Brea Be Sued Next?

Shenkman told Voice of OC he has warned Brea officials that they will be sued next, but didn’t say when the lawsuit would be filed against the city.

Brea City Council members received a letter from Shenkman in 2019 accusing them of violating the state’s voting rights act by disenfranchising Asian and Latino voters and demanding the city switch to district election.

Under threat of a lawsuit, the city ended up entering an agreement with Shenkman to consider a switch following the 2020 U.S. Census results to avoid the costs of having to go through the process twice because of the changes in census data.

But council members ended up stopping their switch to district elections less than two weeks before the deadline to submit their new voting map to Orange County Registrar of Voters earlier this year.

[Read: Will Brea’s Century-Old Election System Be Nixed? Residents Fight Switch to District Voting]

Photo of Brea city civic and cultural center, on Saturday, Feb. 26, 2022. Credit: DEVON JAMES, VOICE OF OC

They backed out of district elections amidst resident pushback on the transition and after being sued by two residents over the switch – something not seen before in an OC city considering a switch to districts.

The lawsuit against Brea was filed by two former city council candidates, Richard Rios and Michael Kim, who argued the switch to district elections would cause the exact problems that the state’s Voting Rights Act was intended to solve.

Shenkman had used both Kim and Rios’ failed campaigns in his letter as examples of disenfranchisement by the at-large election system in Brea.

One Brea resident, Dwight Manley, cut the city a check for $100,000 during a council meeting to help pay for legal fees if the city declines to transition to district elections and gets sued.

[Read: Could Two of OC’s Smaller Cities Buck California’s Trend Toward District Elections?]

Mayor Cecilia Hupp refused to comment for this story when reached by phone on Thursday and deferred to City Manager Bill Gallardo.

Gallardo also declined to comment.

How Will Districts Work in One of OC’s Smallest City?

La Palma officials received a letter from Shenkman in March alleging that the city was disenfranchising Latinos and demanding that the city transition from at-large elections into district elections.

About a month after they received the letter, La Palma City Council members unanimously decided at a special meeting to comply with Shenkman’s demands.

Now La Palma – a city with an area of 1.8 square miles and significantly smaller than the size of districts in Anaheim – plans to move to district elections by 2024.

At their meeting on Tuesday, city council members will hold their fourth public hearing on mapping out the districts.

La Palma Civic Center. Credit: JESSICA RUIZ, Voice of OC

Anaheim was forced to switch to district elections after settling a lawsuit in 2014 from the American Civil Liberties Union that alleged at-large voting was disenfranchising Latino voters

The legal battle cost Anaheim taxpayers more than $1 million. 

“Anaheim was the largest city at the time who didn’t have district elections,” said Mike Moodian, local politics expert and Chapman University professor, in an interview earlier this year. “There was an outcry from residents who felt they didn’t have representation on the city council.” 

Before Anaheim switched to district elections, its city council members were all white and none lived in a Latino neighborhood.

Other cities in Orange County faced with similar legal threats and lawsuits have also made the switch like Garden Grove, San Juan Capistrano, Fullerton, Orange and Santa Ana.

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

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