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An Orange County City Could Soon Be Without A Functioning Government. Here's Why You Should Care

An empty city council chambers with text at the top reading "City Council Update." On the left-hand side, there's a screen showing the image of a seal reading "Mission Viejo, California." Further toward the dais, there's a stand with the U.S. and California flag and another flag.
"I don't think a lot of people were paying attention at that point," Mission Viejo resident Cathy Palmer said of the 2020 local election season.
(Official Instagram account of the City of Mission Viejo)
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The majority of the city council in the Orange County burb of Mission Viejo has been making decisions for its nearly 100,000 residents since 2020 without having been elected to do so.

That's the upshot of a legal decision handed down this week in a convoluted case with roots in a statewide effort to bolster the voting power of Latinos and other historically marginalized groups.

The case is raising uncommon questions for local government, like: how to function when the majority of elected officials have been removed? Others say this is a case about “how government is supposed to work in America.”

Or, it could just be a case about one city tangled up in legal minutiae.

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The details of the case are (insert mind-blown emoji). But after many fizzled neurons and many, many cups of coffee, we are ready to walk you through them. Hold on tight:

What Are The Details Of The Case, In A Nutshell?

In the latest in a string of lawsuits over elections in Mission Viejo, a resident alleged that three council members have illegally remained in office well past the two-year term (2018-2020) for which they were elected. On Wednesday, Orange County Superior Court Judge Walter Schwarm agreed and ordered the council members — Ed Sachs, Wendy Bucknum and Greg Raths — to vacate their seats.

"In essence, the judge has cast aside all of their excuses and requests for delay, and confirmed the fact that as of December of 2020 they did not have any legal right to continue holding office when they simply stayed in power by refusing to call an election when their seats expired," said Aaron Hand, one of the lawyers who brought the legal action.

Mission Viejo City Attorney Bill Curley maintains that the city was acting in good faith and according to a legal agreement that the judge had previously signed off on.

The three council members won't immediately be sent home: Judge Schwarm put a stay, or temporary pause, on the order for 30 days to give the city time to appeal, which they've said they plan to do.

Curley has warned that the city may be paralyzed if left with just two members on the five-person council. "A city needs three affirmative votes to pay bills," he said, citing California law.

Hand called Curley's warnings an "excuse" and said the case should rather serve as a warning to residents everywhere to keep tabs on their local government. "It is alarming to know what happens if the public is not paying attention," he said.

What Does This Case Have To Do With Latino Voters?

To answer that, we have to go back to the 2001 California Voting Rights Act, or CVRA.

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Mission Viejo is among likely hundreds of cities and other local districts that have been sued under the CVRA in recent years, sometimes by local Latino activists, sometimes, as in Mission Viejo's case, by one Malibu-based attorney. The law was intended to help remedy the historic lack of political power among Latinos and other groups whose votes are often diluted in local elections held at-large, meaning everyone votes on the candidates, and council members represent everyone in the city or district.

Up until recently, residents of most California cities elected their city council representatives at-large. But since the CVRA passed, many cities have had to switch to by-district, or district-based voting, where residents elect a representative from their geographic section of the city.

Mission Viejo agreed to study by-district voting in 2018 but ultimately scrapped the idea, saying there was no way to draw a district that would give the city's Latino population — 18.5% of the total — a better shot at electing a representative of their choice.

Instead, they agreed to pursue a different route toward remedying what demographers confirmed was racially polarized voting in the city: cumulative voting. In cumulative voting, voters cast as many votes as there are seats, and they can cast multiple votes for one candidate.

Cumulative voting is rare in California but common in some other areas, including corporate government.

How Does The Election System Change Lead Us To This City Council Mess?

In 2018, in anticipation of an imminent switch to cumulative voting, Mission Viejo voters were asked to choose three representatives on Mission Viejo's city council for a period of two years rather than the usual four years, with the idea that all city council seats would be up for election at the same time in 2020.

But in 2019, the California Secretary of State nixed the city's plan to adopt cumulative voting, saying the law didn't allow for it. The city continued to pursue the idea, with by-district voting as a backup. But, in an agreement approved by Judge Schwarm in July 2020, they pushed back the date for implementation to the November 2022 election.

Meanwhile, the 2020 election rolled around and the ballot did not include the three seats held by the council members who had been elected in 2018 to a two-year term. They kept their seats, which, for a while, no one seemed to question.

Similarly, until recently, the city hadn't planned to put the remaining two council seats on the ballot for the November 2022 election, even though the council members occupying those seats had been elected in 2020 to two-year terms.

Why Did The City Think It Was OK To Extend The Term Length?

The city argues that under the agreement approved by Judge Schwarm, the city council terms should have been extended to four years.

"We relied on the court's judgment of 2018 and 2020, we did what it said we were supposed to do, and now that's being reinterpreted," Curley, the city attorney, said.

But Judge Schwarm has disagreed — twice now — first, forcing the city to put all five seats up for election in November, and now, saying three of the five sitting council members should turn in their city hall badges until voters decide whether they want them back in office.

Why Didn't Residents Complain In 2020?

It wasn't until 2021 that some residents started vocally questioning why three council seats hadn't been on their November 2020 ballot. "We were in the middle of the pandemic," said Hand, the lawyer, who is also a Mission Viejo resident.

Hand also said that the way the city set up remote meetings to comply with COVID-19 safety protocols — for example, requiring residents to submit comments on agenda items in advance via email — made it difficult for residents to participate. (The city went back to in-person meetings in April 2021.)

Cathy Palmer, a Mission Viejo resident who has supported the lawsuit, said she hadn't initially paid much attention to the 2020 council election. But after Republicans took back some key state and federal seats in Orange County in that election, Palmer, who is a member of a local Democratic club, picked up her political activism.

Palmer collected documents from the O.C. Registrar of Voters as evidence against the city's position and spoke about the case at city council meetings, asking council members to honor their two-year terms. She said she and others who spoke up were told they didn't understand the law.

They simply decided, we are not going to put ourselves up for election when our terms expire, which is a really, really alarming concept when you think about how government is supposed to work in America.
— Aaron Hand, lawyer challenging Mission Viejo elections

"If you were not a confident public speaker and you saw the treatment that we were getting, you wouldn't want to go stand up in public and say something that you thought you were going to be attacked for," Palmer said.

Hand argues that nothing less than U.S. democracy is at stake in the case.

"They simply decided, we are not going to put ourselves up for election when our terms expire, which is a really, really alarming concept when you think about how government is supposed to work in America," he said.

On the other side of the dais, council members said they had been subject to verbal and written attacks by a small group of critics when they were merely trying to follow the court's orders.

Will The Ousted Council Members Be On The November 2022 Ballot?

Yes. All five sitting council members are running again in November, and the residents behind the lawsuit wanted the now (sort of) ousted council members not to appear on the ballot as incumbents. But the judge denied that request.

So, for example, Bucknum's candidate statement, which will appear in official voting guides, will identify her as "Mayor/Businesswoman." (Bucknum currently serves as the city's mayor, as well as council member.)

So The (Ousted, Sort Of) Council Members Are Still Holding Their Seats. What Happens Now?

The city now has 30 days to appeal the judge's decision, which brings us pretty close to the November election. If three out of five council members are finally forced to vacate their seats, the city would have to come up with a way to reach a quorum — three votes, per California law — in order to carry out at least some key city business … including accepting the results of the 2022 election.

Hand said that's up to the city to figure out, and quickly. "I have concerns that they're going to once again try to delay this and delay it and delay it and delay it so that they can try to escape the inevitable," he said.

In the meantime, Hand thinks council members Sachs, Bucknum and Raths should recuse themselves from all decisions made by the city council. Their next meeting is scheduled for Sept. 13.

What questions do you have about Southern California?