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Mission Viejo Districting

The City of Mission Viejo (the "City") received a certified letter on September 29, 2017 from Kevin Shenkman, an attorney with the Malibu-based law firm of Shenkman & Hughes. The letter asserts that the City's at-large electoral system dilutes the ability of Latinos (a protected class) to elect candidates of their choice or otherwise influence the outcome of the City's council elections. As a result, the letter asserts that the City's at-large electoral system violates the California Voting Rights Act ("CVRA"). Mr. Shenkman claims "polarized voting" is occurring and threatens litigation if the City declines to voluntarily convert to district-based elections for the City Council.

The City currently utilizes an at-large election system, which means that the electors from the entire City choose each member of the City Council. A district-based election system is one in which the city is physically divided into separate districts, each with one council member who resides in the district and is chosen by the electors residing in that particular district.

Cities throughout the state of California have increasingly been facing legal challenges such as this to their "at-large" systems of electing council members. Almost all have settled claims out of court by voluntarily shifting to district-based elections. On September 28, 2016, the Governor signed Assembly Bill 350 into law, which attempts to provide a "safe harbor" from CVRA litigation for cities. If a city receives a demand letter, such as in Mission Viejo's case, the city is given 45 days of protection from litigation to assess its situation. Specifically, if within that 45 days, a city adopts a resolution declaring the council's intent to transition from at-large to district-based elections outlining specific steps to be undertaken to facilitate the transition, and estimating a time frame for action, then a potential plaintiff is prohibited from filing a CVRA action for an additional 90-day period.

After evaluation, the Office of the City Attorney and Executive Staff believe that taking advantage of the safe harbor language under Assembly Bill 350 is the most appropriate action for the City to take. Under this "safe harbor," the City is required to hold five (5) public hearings within the allotted 90-day framework. The public hearings will give the community an opportunity to weigh in on the composition of the districts and provide input regarding the content of the draft maps and the proposed sequence of elections. The final public hearing will be when the Council votes to consider an ordinance establishing district-based elections.

Comments

The city’s October 24, 2017, resolution, included a tentative timeline of action:

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MISSION VIEJO, DECLARING ITS INTENT TO TRANSITION FROM
AT-LARGE TO DISTRICT-BASED COUNCILMEMBER ELECTIONS,
OUTLINING SPECIFIC STEPS TO BE UNDERTAKEN TO
FACILITATE THE TRANSITION, AND ESTIMATING A
TIMEFRAME FOR ACTION PURSUANT TO ELECTIONS CODE
SECTION 10010

The timeline includes a hearing date set for December 26. Is that hearing date still scheduled for December 26?

Thank you for your interest in this important public process. To clarify the facts as to scheduling, we reference you to both the written materials and the related and concurrent public discussion of the schedule. We took great care to note the schedule was “tentative” and an estimate, subject to change based on real world circumstances. Even the controlling law references tentative schedules, as people understand that future realities and common sense may alter a schedule. Thus, a “mechanical” or “carved in stone” schedule is not legally required and so is not offered to the public.

Honoring and respecting the seasonal holidays, and likewise, residents and interests, personal time and commitments are seen as taking precedence over a “fluid” schedule. Rest assured that the legal requirements are noted and respected – but with an eye to our residents’ lives, celebrations, and availability. William P. Curley, III, City Attorney

Thank you for your explanation, but when the Tentative Timeline was released on October 24, 2017, the day after Christmas has always been December 26.

Other timeline events that have been missed were on December 5, 2017: Post Draft Maps and Potential Sequence of Elections, and the December 19 event to post any amended maps. What real world circumstances have caused those dates to be postponed?

The council has been silent. For transparency, should a public document that is part of the Resolution be publicly discussed and amended? I have relied upon that public timeline in communications with my distribution list.

The public has largely been absent from attending these very important Public Hearings. Without public participation and oversight, there is a real chance for gerrymandering to occur, as there is a real possibility that 3 or 4 of our current council members could be in the same district. When will the “Potential Sequence of Elections” be discussed? When will the city be posting its version of the potential district maps?

Why has there not been a discussion on the option for the entire voting public to vote for a At Large Mayor for a 4 year term vs. the current system of the council appointing its Mayor for a one year term. Where in the public record does it show a discussion on creating 5 districts, when we could go anywhere from 4 to 9 districts.

The only major discussion by the council has been its consideration of a lawsuit. It has been well noted that not a single city or school district has successfully won a lawsuit fighting the "by-district" elections. Those who have fought - and lost - have paid out millions of dollars to the attorney's on both sides of the fight.

Other concerns: at the November 28 Public Hearings, the city attorney not only stated that workshops will be held, but also stated that school districts, HOA’s, water districts and “whatever” districts are the criteria for a fair and balanced district, yet those maps are not available or easily accessible to all residents, equally.

As the public’s submission map only has one layer, and that is population, what is the possibility of the maps submitted by the public being rejected as improper or unpopular because it did not meet any, all or some of the other criteria that the city attorney referenced , including voting, age, and ethnicity.

What is the status of the city attorney’s citizen committee? At the end of the public hearing, City Attorney Bill Curley went out into the audience and selectively handed out his business cards.

Where is the outreach? Where is the transparency?

I suggest that we remain as we are now with district-wide elections. Otherwise, I am fairly confident that the quality of candidates will suffer. This is pretty much a "numbers thing". The best representatives are not necessarily spread evenly over the entire geographic area. I am a resident of Mission Viejo since 1978.

I do not believe we need districts in order to get a good representation of who lives in Mission Viejo. There are not areas that would stand out as needing representation that are not represented or have not been represented. This will limit the quality of people running- if there is only a small number of residents and nobody steps up to run, it will be a mess.

The CVRA districting policy makes race the only factor and it should be challenged. I believe our minority population is too small to create a voting district with a “minority-majority” voting block. None of the districts created would include a Latino voting majority because there is no one area of the city where most Latinos live, and because their numbers are too small in any event. The Assignment spread sheet appears to point this out. The expense of implementing this is also a concern. I understand a Federal Court Judge in San Diego is being asked to file a preliminary injunction to halt this lawsuit. Resident of Mission Viejo for 47 years.

I also believe that restricting elections to pre-established map areas could limit the quality of candidates. We should have city representatives who truly want to do the job, not just a person who is running for office because their area needs someone. Mission Viejo appears to be pretty evenly spread out in terms of race, so I don't think the issues outlined in the lawsuit really apply to our city.

Special interest groups are at it again! Everyone thinks they are a "protected class". The only group that needs protection is civic minded American citizens. Our community has no racially divided areas because of the good planning and foresight of the Mission Viejo Company. I have lived in this here since 1986, prior to city hood in 1988. Our demographics are uniform with no high density of "protected classes" that can be isolated into a district. Therefore we should be exempt from this frivolous lawsuit. If the city attorney can't shake this on off quickly then we should find one who can.

A clarification of this residents post is needed. There is no lawsuit at this time. Only the threat of a suit if the facts show actual racial polarization. There may never be a lawsuit. This is a fact gathering time. If a lawsuit is filed, ever, it would be properly addressed. Please do not believe that there is a lawsuit and please do understand that the facts, not unsupported opinion, will lead to the conclusions reached.

Thank-you for the clarification.

I like the idea of districts. It will help us know which person to contact.

Stay as we are. Stand. up to this Malibu based law firm and say no!

In order to attract the most qualified candidates for positions, an at-large approach would provide the most effective way to encourage a wide variety of candidate participation. We are a diverse community with excellent representation. Keep the process open to all to best serve the residents of Mission Viejo.

Without street names and landmarks, such as schools and parks designated on the city's Plan Proposal Submission Map, it is difficult to pinpoint on the map, the boundaries for the three water districts and two school districts within Mission Viejo's borders. These are two of the needed layers to support a well-balanced district map as stated by the city attorney. Also, to maintain cohesiveness and integrity, the boundaries of HOA’s are to be preserved in the same District. Where can the public find that information?

What are the Census Block Numbers of the current city council members? In my review, it appears that Wendy Bucknum resides in Census Block Number 28, Brian Goodell resides in Census Block Number 49, Greg Raths is in Census Block Number 55, with Ed Sachs in Census Block Number 57, and Trish Kelley in Census Block Number 59. Please verify and/or correct my information.

Thank you.

This appears to be both an attempt at reverse discrimination and a money-grab by unscrupulous litigators. The at-large system in current use permits the city as a whole to vote, and representation is in accordance to the total distribution of voters. There is no discrimination there. Setting up districts is an attempt to concentrate voters so that certain groups will gain disproportionate influence in the elections.
I am completely against this attempt to influence our politics to the interest of a small number of the constituents.
I have been a resident of MV since 1995.

The Mission Viejo City Council that has been elected through the at-large election process since the City’s inception has made Mission Viejo the beautiful family community that it is now. I do not see a need to change our method of electing our City Council. I believe the concerns the potential plaintiffs have about diluting the voice of a protected class does not apply to our City.

If someone from a protected class chooses to run for a seat at the City Council, I don’t see how he/she is prevented from running. Like any candidate he/she needs to make their case to the voters that he/she will look out for the best interest of the citizens of the City.

My husband and I are in the minority group. We purchased our home in Mission Viejo with our two young sons in 1990 because of the City’s beauty, cleanliness and, most importantly, it’s reputation as a family community. We were not disappointed. The City Council has always looked out for the best interest of all the ciitzens of Mission Viejo.

I hope that at the final hearing the City Council will vote to decline to transition to district-based elections and, if possible, attempt to obtain a permanent safe harbor status for our City. We don’t need to waste our tax dollars in transitioning to a district-based election process unnecessarily.

Thank you for allowing us to voice our opinions online.

I like the idea of Districts. I think it would help to diversify the council members who represent our city. It would also allow voters to really get to know their representative... Mission Viejo has nearly 100,000 residents. You can't expect every council member to be able to be in touch with all the different neighborhoods and demographic groups for a city that large. I would love to have ONE city council member who I could speak to about the concerns I have that affect my specific neighborhood, for example, the public schools my children attend; or the parks that we visit; or the stores that are closing or opening. etc. Just because something has been done one way for as long as we can remember, doesn't mean our processes can't be improved upon.

I have lived in Mission Viejo since 2008.

i second this comment & for exactly the same reasons,.
now if i could just find the maps.....

I hope our city will not support Affirmatively Furthering Fair Housing Rule (AFFH) or feel that we need to change to district-based elections. Please avoid this idea of social engineering of America’s neighborhoods. I hope for protection of our American property rights and local representation in the City of Mission Viejo. Do not change from at-large elections please.

I am opposed to districts in our city elections.

I have lived in Mission Viejo since 1974. It seems our country is being changed by loud voices rather than by citizen majority. I have seen and heard lots of comments stating to allow the M.V. residents to vote for or against this potential law suit. Why could this not be done this election year and if the decision is to remain with electing our Council as we do now, why would a majority vote not hold up over this law suit? Is there a CA State law that is motivating this issue? I will be disappointed if the Council votes to change and if there is an election I would support the decision of Mission Viejo residents. Brenda Cooper

On September 29, 2017, the law firm of Shenkman & Hughes issued a demand letter to Mission Viejo, threatening a lawsuit based on the claim that the city is violating the California Voters Right Act (CVRA). Shenkman is exploiting bad law that does not require him to produce evidence of polarized voting.

Every city or school district that has sued or been sued, has lost. The last thing we need to do is get involved in a lawsuit.

The law is written in such a manner that cities or special districts cannot win in state court. What needs to happen is for the cities to band together and lobby the state legislators that created this bad law.

There is hope though. The private sector is suing the California State Attorney General in Federal Court over the election code that is forcing the cities into district based voting. Don Higginson from Poway agreed to be the plaintiff. He was contacted by The Project on Fair Representation, an organization that fights for voting rights and the 14th amendment. Popular opinion is the case will end up in the U.S. Supreme Court. So we need to be patient and let that lawsuit work thru the system.

The best attorney's are in the private sector.

Just google “California Voters Right Act”, and numerous links to cities across the state will pop up, and all of the council members are understandably upset, knowing that they are being forced to the change from at large voting to district based voting. But they are making the fiscally responsible decision to switch over to district based voting, and not sue or be sued.

Right now, district based voting is the law and suing Shenkman & Hughes will only enrich attorney's on both sides, forcing the taxpayer to pay the enormous legal bills.

The city cannot afford to sue the California State Attorney General on its own. And why should the MV taxpayers foot the bill for a statewide problem?

The bigger concern we have right now is the district Map Z, giving each sitting council member their own district. Map Z is so controversial, that at the January 9 Public Hearing where the map was rolled out – no one saw it because the council did not put Map Z up on the giant screen in the council chambers. So the only way for the public to see the map at that council meeting was to go out into the lobby and look thru the single agenda notebook available for the public or go on-line.

The city attorney stated that Map Z was just the starting point, but not a single council member moved to modify any of the boundaries. But why would they? The map was drawn giving each council member their own district.

The city attorney has stated that the map is defendable in court, but many voters will view it as a benefit for the incumbents.

From: Robert Schick <rschick@cityofmissionviejo.org>
Sent: Thursday, January 25, 2018 10:39 AM
To: 'CA Schlicht'
Subject: RE: Records Request - Public Outreach - District Based Voting

Good morning,

This email is in response to the Public Records Act request that you placed regarding “What steps has the city taken for public outreach in regards to districting?” and your follow-up query “am I to understand that the city has not made any extraordinary outreach to the public for its participation in a process that demands high participation by the public?” Your email of 1/15/18 was processed pursuant to the California Public Records Act as seeking a record concerning “steps” which the City has “taken for public outreach in regards to districting.” The response of 1/19/18 was that “There are no applicable records relative to ‘steps,’” and nothing else was addressed or intended by that response.

Robert Schick
(949) 470-3034

From: CA Schlicht [mailto:CASchlicht@hotmail.com]
Sent: Monday, January 22, 2018 10:46 AM
To: Robert Schick <rschick@cityofmissionviejo.org>
Subject: Re: Records Request - Public Outreach - District Based Voting

So, besides a quiet link to the district website, am I to understand that the city has not made any extraordinary outreach to the public for its participation in a process that demands high participation by the public?

A table was created this week to address the ongoing assertion that the city has not done enough public outreach for the district elections matter. Here is a listing of what has been communicated to the public and how many actual or potential views occurred.
Date
Item
Link
No. of views or subscribers
11/8/17
News Story
249
11/8/17
Facebook post
Public hearing on Nov. 14 will focus on district-based Council Member elections in Mission Viejo
2,027
11/9/18
eNewsletter
Public hearing on Nov. 14 will focus on district-based Council Member elections in Mission Viejo
13,000
11/9/18
Council Agenda
November 14 agenda subscribers notification
1,155
11/22/17
News Story
126
11/22/17
Facebook post
Second public hearing regarding potential district-based elections set for Nov. 28
2,670
11/22/17
eNewsletter
Second public hearing regarding potential district-based elections set for Nov. 28
13,000
11/23/17
Council Agenda
November 28 agenda subscribers notification
1,155
12/19/17
News Story
299
12/19/17
Facebook post
Help decide whether to change the way Mission Viejo leaders are elected in the future
1,980
11/21/17
eNewsletter
Help decide whether to change the way Mission Viejo leaders are elected in the future
13,000
12/21/17
Facebook video
Video: how-to for creating maps
381
12/22/17
News Story
199
12/22/18
Facebook post
Additional public hearings regarding potential district-based elections set for January 9& 12
1,721
1/4/18
eNewsletter
Additional public hearings regarding potential district-based elections set for January 9& 12
13,000
1/4/18
Council Agenda
January 9 agenda subscribers notification
1,155
1/18/18
Council Agenda
January 23 agenda subscribers notification
1,155
1/25/18
News Story
117
1/25/18
Facebook post
Council to consider switching to district-based elections February 13
809
1/25/18
eNewsletter
Council to consider switching to district-based elections February 13
13,000
11/3/18
Newspaper ad
1st public hearing (Nov. 14)
Unknown distribution #s
11/18/17
Newspaper ad
2nd public hearing (Nov. 28)
Unknown distribution #s
12/29/17
Newspaper ad
3rd public hearing (Jan. 9)
Unknown distribution #s
*
Newspaper ad
4th public hearing (Jan. 23)  *Awaiting affidavit from OC Register
Unknown distribution #s
*
Newspaper ad
5th public hearing (Feb. 13) *Awaiting from SVN
Unknown distribution #s
 
 
KNOWN REACH
10,578
 
 
UP TO POSSIBLE REACH
80,198 + newspaper

 

The proposal to change our voting system is a transparent attempt to gerrymander voting blocks in order to prevent the Mission Viejo electorate from voting in accordance with the desires of the majority. This Malibu lawyer is obviously a profiteering opportunist taking advantage of legalistic details to blackmail cities into settling out of court to their benefit, or subvert their democratic process.
Don't give in. Report this legal firm to the BAR.

Leave things the way they are. No district voting.

In the beginning, I was opposed to district based voting. I had wanted the right to vote for five council members.

But after a lot thought, I am now in strong support of District Based Voting.

My #1 reason is that I believe district voting will restore accountability. It seems all too often that once a council member takes office, they tend to cater to the needs of special interest and will only turn their attention to the public during election time. With districts, it will be election time all the time.

We will return to a citizen based council instead of a city council tending to their own personal agendas, that we have all witnessed and experienced with At Large elections.

Imagine having five council members directly accountable to their voters – that is what District Based Voting will bring back to Mission Viejo.

Stay Unified:
I don't feel that Mission Viejo is large enough to warrant districting. Having multiple council members representing the community is important, but districting may create unnecessary friction within the community and the city operation. Is there guidance on the size of the population necessary to have value-added by districting. Doing something just to bow to 'political correctness' without due consideration of the impact to the community as a whole would be unproductive/wasteful at a minimum, and could prove damaging in the long run.

The city can be sued for not switching to district based voting. On September 29, 2017, the city received a demand letter from Shenkman & Hughes with a claim that our current At Large voting is violating voters rights as defined by the California Voter Rights Act (CVRA). The CVRA is written in such a way , with a very low bar, that a city or a school district or any district, cannot win in state court.

The Poster Child is the City of Palmdale – its Jauregui vs. City of Palmdale lawsuit cost that city over $7 million along with a Court of Appeal decision that has become the precedent setting case. When you lose in Court, the Court then draws the district boundaries. Every council member in the state who has faced this decision to turn to district based voting, has realized that a lawsuit is an expensive uphill battle.

Another lawsuit, this one filed in Federal Court on October 3, 2017 by the private sector - Higginson v. Becerra, Case #3:17-cv-02032 - has some hope of winning. However, whoever loses will take it to the higher court for appeal. So it will take quite a while for the final conclusion on the constitutionality of the CVRA.

Why should the citizens of Mission Viejo foot the bill for a lawsuit that will have statewide ramifications. We need to be patient and go to district based voting, and let the private sector battle it out against the State of California. Depending on the outcome, the city can switch back to At Large voting.

There are pros and cons to both forms of voting, but I am hopeful that District Based Voting will be successful in Mission Viejo.

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