The following City of Mission Viejo announcement is reprinted from MV Life as a courtesy to web site viewers and provides clarifying information and amplification of my original statements (below) regarding changes in Mission Viejo council elections. -- Trish
After exhausting all efforts to ensure equality for minority voters, Mission Viejo will move to district-based voting
Date: July 15, 2021
After more than three years working toward a cumulative voting system to benefit minority voters, the Mission Viejo City Council will move to a district-based election system beginning in November 2022.
District-based voting would carve the City up into geographic districts, which would each be represented on the City Council by someone who lives there. The decision to move to this voting system comes after exhausting all efforts to ensure the best outcome for this community. It was sparked by a 2018 lawsuit claiming the City’s at-large election system dilutes the vote of the Latino community. While many cities immediately adopted district voting without a challenge, the Mission Viejo City Council took proactive community-oriented steps to see if a violation did exist and – if so – how to remedy it.
Mission Viejo’s demographics were first analyzed to determine if the at-large voting system truly produced voting results that violated the California Voting Rights Act – and it did. The Council then worked to determine which voting structures used across the nation would give a “real” voice to minority voters rather than immediately moving to less beneficial district-based voting.
Since minority residents live throughout the City, as opposed to one specific area, district voting does not remedy the issue of racial discrimination in the at-large voting system.
In addition, the Council pursued statutory interpretations recommended and supported by the minority voters to give the best voice to the vote cast by minority voters.
However, despite the Council’s extraordinary efforts on behalf of this community, the State will not allow the cumulative voting method in Mission Viejo or another City absent legislative action in Sacramento.
“The California Voting Rights Act allows judicially approved alternatives to district-based voting,” said Council member Greg Raths, who serves on the Voting Rights Subcommittee with Mayor Trish Kelley, in a joint statement. “The worthy alternative includes cumulative or rank-choice voting. However, these options for change are seemingly too significant for State staff to authorize. Thus, as Sacramento will not allow rank-choice voting or cumulative voting to best serve our minority residents, we must now defer to the one-size-fits-all district voting remedy. It is unfortunate that the best interest of our minority voters cannot be served, but your City Council worked very hard to achieve a system that would give them a greater voice. We had sincerely hoped for a better outcome for Mission Viejo minority voters, but Sacramento is not allowing any option other than district voting absent expensive legislative and legal efforts.”
The City Council meets next on August 24 and will provide a comprehensive report.
“We have actively been pursuing what we had hoped to be in the best interests of our community,” said Mayor Trish Kelley. “We do now have a plan and will be returning in August to discuss district maps and what the process will be and how residents can get involved.”
Clarifying the 2020 Election Confusion
I received a number of emails and phone calls after the Voice of OC published an article full of misinformation which also resulted in players on Facebook perpetrating the misinformation. What follows is my response to an upset constituent:
Thank you for taking the time to share your thoughts and concerns about the upcoming Mission Viejo election. I would like to give you some information since we are hearing from a number of residents who are concerned due to the Voice of OC article and because of some misinformation of individuals on Facebook and through emails. Some of the information in the Voice of OC article is incorrect. The Orange County Register published an article (available online), which is fairly accurate:
As a correction to allegations in the Voice of OC article, and what some are saying on Facebook and in emails:
1. There was no decision in closed session to cancel or change an election. Closed session subjects are very limited, including discussing litigation, personnel evaluations, etc. The City is very careful to comply with the Brown Act and only topics that are allowed for closed session take place in closed session!
2. The 2020 City Council elections have not been canceled. For the entire history of Mission Viejo, Council Members have been elected in this manner: two Council Members are elected in one election cycle and three are elected in the next election cycle (2 years later). The Council Members have always been elected to 4-year terms. In November 2020, two council seats will be up for election. They are currently held by Mayor Goodell and me.
That being said, we had hoped to have a change in elections this year because of the lawsuit brought against the City due to "racially polarized voting." Cities up and down the State have been confronted with this same lawsuit. This is a confusing issue and I can understand why many people are asking questions about this. I would like to give you a little bit of information and background. I have included a document that I wrote that fills in the history and why the 2018 election was initially planned to be a 2-year term instead of the normal, historic 4-year term. Briefly, the City is trying to comply with the California Voters Rights Act (CVRA) which states that "at-large" elections dilute the vote of minorities. Mission Viejo (and most cities) has always had "at-large" elections, where the voters choose from candidates who live anywhere in the City, and they are elected to serve 4-year terms. There are two remedies to fix the problem of "racially polarized elections" identified by the CVRA:
1. To switch to election by District, where the City would be divided into Districts and each of the five Council Members are elected by those who live in their specific geographic district. One of our City's school districts (Capistrano Unified School District), switched to this several years ago and many of us were unhappy with that decision. Where we used to have seven Trustees who were accountable to the entire district and had to be elected by all of the voters in CUSD, we now can only choose one Trustee, from our geographic area. The problem with this method is that each Trustee may only look out for his/her own area, as opposed to making decisions that benefit all of the children throughout CUSD. As the City discussed drawing Districts as an option, we heard the same concerns from many of our residents--there is a fear that a district-elected Council Member will only be accountable and look out for his/her own little area as opposed to what is best for the whole City. Honestly, it is easier and much cheaper for a Council Member [candidate] to run in a District rather than in a city-wide election; it is fewer doors on which to knock, fewer mail pieces, fewer signs, etc. But a District-based election would not solve the problem of racial polarization because we cannot draw a district that encompasses a large group of minorities.
The other remedy (approved by the courts and the attorney who is suing us) is:
2. Cumulative voting, where voters may cast all five votes on one candidate, or split up their votes among five candidates. Because of the math involved with cumulative voting it is imperative that all five seats are voted on in the same election (as I mentioned, historically we have had staggered elections--three seats in one election cycle and two seats two years later). As the Council struggled to comply with the SPIRIT of the CVRA law, as opposed to simply complying with the LETTER of the law, we studied maps and the demographics of Mission Viejo and learned that all ethnicities of our citizens live all over the City, not in one specific area, so it would be impossible to draw a district which would be comprised of a minority population. District elections would have been a relatively easy fix, but would not have solved the problem which the CVRA addresses--the dilution of the minority vote. The attorney who presented the City with the claim and lawsuit agreed that cumulative voting would be a good remedy, and he is actually anxious to see Mission Viejo be successful in making this switch. The problem with cumulative voting is that the California Secretary of State must approve it, and he will not, although we have been going back and forth with him for months. He has now said that in order to bring cumulative voting there would have to be a legislative change. And this takes time.
Since the 2020 election is coming up before we will be able to have a cumulative system approved through an action of the State Legislature, we have reverted back to the "at-large" election system which we have always had, and involves a 4-year term. At the time of the last election (2018) when Wendy Bucknum, Ed Sachs, and Greg Raths were elected, we had anticipated that the 2020 election would be cumulative to bring us to compliance with the CVRA; thus, the publicity stated that they were elected to a 2-year term. Since we are not yet approved for cumulative, those three seats revert to a 4-year term. The City will continue to pursue a change for the next election in 2022, either to cumulative or to district elections. All of the other jurisdictions that were sued went to district elections and we may need to go that direction as well. As I mentioned, in this 2020 election there are two seats up, which Mayor Goodell and I currently hold. If we are successful in bringing a cumulative system in 2022, those two seats would serve a 2-year term since cumulative requires that all five run at the same time. If it is necessary to take the other option (district elections), then the term will be four years. And regardless of whether we go to cumulative or district elections for the 2022 election, each Council Member elected at that time will have a 4-year term.
Our Mission Viejo Municipal Code states:
Section 2.04.140 Election of Members: City council members shall hold office for four years from the Monday succeeding the county clerk's certification of the election and until their successors are elected and qualified.
I hope this helps to explain things regarding this issue. I have provided a document I have written that gives additional details. Please feel free to let me know your thoughts, and if this makes sense! Also, please let me know if you would prefer cumulative or district elections. It seems many of our residents don't like either choice! But we will need to do one of them.
Thanks again for sharing your concerns!
California Voting Rights Act Explanation and Impact on MV Elections
There is a great deal of confusion around the 2020 City Council election. To help to explain the situation, I will give a little bit of history. Mission Viejo City Council terms have always been 4 years. Since 2001, when the California Voting Rights Act was adopted, local agencies have had to avoid election procedures that acted to impair voters’ rights. The California Voting Rights Act prohibits the use of any election system “that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election.” Jurisdictions can be sued if they elect their governing body using an at-large election system, which is the system we have always used in Mission Viejo. If the court finds against a jurisdiction, the jurisdiction must change its election system and pay the plaintiff’s attorneys, experts, and other expenses. Jurisdictions that fought CVRA claims have paid settlement or judgment amounts ranging from $100,000 to $4.7 million. So far, no jurisdiction has successfully defended itself against a CVRA lawsuit. Mission Viejo was served with a claim of voting rights violation and a demand to cure in September 2017. At that time, the City confirmed a violation was present and explored options to cure the violation. We looked at the demographics of Mission Viejo and learned that our Hispanic population (about 18% of our city) is evenly spread throughout the city. We studied dozens of map options to determine if it would be possible to draw a District that was predominately Hispanic, but it is impossible because citizens of all ethnicities live throughout the city, not in separate areas. We also learned that our Mission Viejo residents who responded at that time rejected District voting, because it can result in elected representatives who are only interested in their own district, as opposed to having concern for the whole city. The City sought a fair remedy that served both the letter and the spirit of the law. The closest system to “at large elections” (the system we have always used, where voters can choose the candidates they feel will do the best job, regardless of where they live in the city), is “cumulative voting.” This is a system that requires all five council members to run at the same time, and voters can vote for 5 different candidates, or place all 5 votes on one candidate, or any split of the 5 votes. Mission Viejo approved a settlement that respected the voters, the law and good policy by agreeing that we will proceed forward with “cumulative voting,” with “district voting” as a backup. The State has not yet allowed cumulative voting, and as the City continues to work with the State towards this solution (which may require legislation), we have run out of time. Thus, we will revert to the old system, “at-large,” for the 2020 election and continue pursuing the other options in the coming months for the 2022 election. This is where the confusion lies: if we had been successful in bringing cumulative voting, the terms of Wendy Bucknum, Ed Sachs, and Greg Raths would have been 2 years, to provide for all 5 seats to be voted on in 2020. Since cumulative voting is not yet approved and we remain under the old system until the next election, the 4-year term for the 3 members elected in 2018 applies. If we do bring a cumulative voting system for 2022, then the two seats filled in the 2020 election will be 2 years (because all 5 members will be required to run at the same time in the next election cycle,) but if we find the District voting system is the one that works, then the term will be 4 years. If the 2022 election is cumulative (all 5 seats up for election), then all 5 seats will be for a 4-year term, and every 4 years all 5 seats will be elected to 4-year terms.
The City website includes an article that has provided the following explanation related to this issue:
In light of the City Council’s vote regarding cumulative and district voting and subsequent misinformation circulating online, the City is clarifying the various perceptions about the City Council’s terms and goals. To simplify the responses, a bullet point listing is the most efficient way:
• The City adheres to the rule of law – as the law exists, not as it is wished to be.
• The hierarchy of government enactments is that “ordinances” (a law of the city) supersede and rule over resolutions, which are policy statements or directives.
• As set forth in Mission Viejo Municipal Code Title (Section 2.04.140), the law is that Council Members serve four-year terms. Commentators over the past year note that the ordinance has not been changed to reflect a two-year term. It has not, by intent, and won’t be until a complete cumulative voting system ordinance to replace the current ordinance law is established.
• The resolution noting a two-year term was done with the anticipation that the replacement cumulative voting ordinance would be completed and adopted in time for the 2020 election. It has not been and so, to ensure the law is followed, the current law is being followed. As observed, a law (ordinance) outranks a resolution (policy direction).
• All efforts to construct the replacement ordinance continue. As soon as the new local ordinance is assured of legal validity, it will be adopted.
• All aspects of law are being followed and opinions to the contrary are the right of the holder but are not reflective of the law.
• Mission Viejo voters made their voices extremely clear and overwhelmingly expressed opposition to districts. The City has two choices – cumulative and districts. If it is cumulative, then all five seats will be up for election in 2022. However, if it is district, then the two seats filled in 2020 would be four-year terms (to 2024), and seats for the three other districts would be up for election to a four-year term in 2022.
From the Mission Viejo Municipal Code: “Sec. 2.04.140. - Election of members.
City council members shall hold office for four years from the Monday succeeding the county clerk's certification of the election and until their successors are elected and qualified.”
© 2020 Trish Kelley for City Council 2020 ID#1382478