When Mission Viejo leaders in 2020 decided to delay plans for changing how voting is done in the city — after nearly two years of trying to implement a cumulative system — three council members ended up staying in office two years longer than the terms they were elected to.
Now, a resident is asking the state attorney general to allow his lawsuit over the extension of those two-year terms to four years without a public vote. And some residents say they are concerned it could happen again, as Mission Viejo leaders finalize plans for transitioning to a by-district voting system.
But the attorney for Mission Viejo, who is also representing the three council members being challenged, said the city is not making up new rules. Since officials couldn’t make cumulative voting work – state officials said it would need legislative changes – the city’s existing laws governing council member terms were followed, City Attorney Bill Curley said.
To settle a 2018 lawsuit against the city over its at-large election system, Mission Viejo leaders and the voting rights group that sued the city agreed cumulative voting was the best method for addressing minority voter dilution in the city. Under a cumulative system, voters receive as many votes as open seats and cast them however they like – including multiple for the same person. For the cumulative system, all City Council members would be up for election at the same time.
In order to align the terms of the council members, city officials in 2018 intended for the three winners for office that year to serve only two-year terms, so all five city leader positions would be on the ballot in 2020, when the new voting system was expected to launch.
When those plans were delayed due to pushback from state officials, the terms of the three council members – Wendy Bucknam, Greg Raths and Ed Sachs – were extended by a City Council vote.
Curley said officials went back to an Orange County Superior Court judge and asked for more time to get the cumulative-voting system implemented.
Because all five seats needed to be up for election in 2022, when city leaders expected to finally get the new system in place, the two winners from the ballot for 2020 were to serve for two years. Elected that year were Trish Kelley and Brian Goodell.
Now that Mission Viejo leaders have dropped the idea of cumulative voting in favor of a district-based system, some community members are questioning the term extensions for Raths, Sachs and Bucknum, which they argue were decided without public input.
And because terms would instead be staggered in a district-based system, some suspect Kelley and Goodell won’t end up facing a public vote in November.
Curley said that has yet to be decided.
Cathy Palmer, who has lived in Mission Viejo since the 1980s, said the council’s decision to extend officials’ terms in office beyond what residents believed they were voting for is “concerning.”
Palmer said she considers it breaking a “philosophical principle” by “taking away, as a citizen, my fundamental right to choose those who represent me.”
Another resident, Michael Schlesinger, filed an application with the state attorney general last month asking for a legal opinion on whether Raths, Sachs and Bucknum can be sued for remaining in office.
Lee Fink, the attorney representing Schlesinger, said if given the go-ahead by the state’s top prosecutor, they would file in Orange County Superior Court “and ask that the three council members be removed and the offices declared vacant.”
“We are hoping that we can get this matter resolved by the courts to prevent the City Council from further breaching their obligations to the public and allowing themselves to just serve beyond their term,” Fink said.
The filing notes that, under an amended lawsuit settlement agreement issued in 2020, Judge Walter Shwarm ordered all five council seats be up for election in 2022.
But Curley said the two-year terms on which the council members were elected was based on the plan that the city would implement cumulative voting, “and when that was ultimately not viable, particularly because of the concerns of the secretary of state, then we went to normal, if you will, to consistent with existing city and state law,” which puts council member terms at four years, he said.
“And so at no time were we making things up.”
He said that while it has been mentioned during public meetings that the switch to district-based voting will mean three candidates on the ballot in 2022 and two in 2024, officials are simply relaying what the standard process is, but that could be changed.
“We’re telling you what’s on the books, but the books can change in a month,” he said.
When the City Council adopts an ordinance formally implementing the district elections process and official map carving the city into geographic voting areas, “absent being unconstitutional, they can pretty much do what seems right for the community then,” Curley said.
That could mean rolling over the terms of Kelley and Goodell to 2024, he said. The council could, like some other cities that made the switch to district-based voting, also choose to elect the two seats to two-year terms in November to stagger voting for the future.
