Two small Orange County cities could be the first in California to successfully fight back against a statewide trend of cities switching to district elections.
City council members in Brea and Cypress said they will not be switching to district elections after receiving a legal threat to make the change.
They could also be the latest in a string of Golden State cities to face costly legal battles and ultimately be forced by a judge to adopt district voting.
In by-district elections, residents can only vote for a candidate who lives in their district – only having a say on who gets to sit on one of the seats at the dais.
In at-large elections, voters across the city can vote for as many candidates as there are council seats up for grabs. For example, if three seats are up for election, voters can vote for three candidates – the top three vote-getters are then elected to those seats.
The switch is part of a larger trend – often pushed by voting rights organizations – to fix what they say is racially polarized voting, which means at-large voting disenfranchises minority voters and candidates.
In cases where California courts have ruled on election lawsuits, judges routinely ruled at-large voting systems violate the state’s voting rights act.
Yet Brea council members recently decided publicly that their city wouldn’t make a switch to district voting.
“Our constituents all feel very strongly for the most part that districting is not right for a city as small as Brea. Maybe it works for a larger city – but for us, everyone loses. Everyone in the city loses four votes,” said Brea Mayor Cecilia Hupp in a Thursday phone interview.
Brea’s also facing a lawsuit from two former city council candidates in an effort to stop the city from making the switch.
Both Brea and Cypress could potentially end up spending considerable amounts on legal battles – a dynamic that’s already played out in cities across California and Orange County, like in Anaheim, Fullerton and Mission Viejo.
Some cities, like Palmdale, rejected the switch and were ultimately forced to adopt district elections by a judge, and ended up paying the plaintiffs’ lawyers $4.5 million plus interest.
One of those lawyers in the Palmdale case is Malibu-based Kevin Shenkman, who is also the attorney who sent Brea and Cypress officials a warning letter about their election systems.
Shenkman, who’s been sending similar letters to officials throughout OC and the state, has developed a reputation for forcing cities to switch to district elections by representing people and groups who threaten to sue municipalities under California’s Voting Rights Act.
In a Wednesday interview, Shenkman said the Palmdale case changed city officials’ reactions to his letters.
“The reaction of most cities to a demand would be F you…After our victory in Palmdale, I think most cities at least got a hint that this is not the right way to go.”Kevin Shenkman, attorney
Shenkman said that officials in Brea and Cypress can expect a lawsuit for violating the California Voting Rights Act.
Shenkman represents Southwest Voter Registration Education Project, which alleges at-large voting in the two small cities is diluting minority voters’ voices.
He also said Brea officials abruptly backed out of an agreement.
“We had entered into an agreement some time ago in good faith based on representations made by the city and its council. Now, it seems that the council has reneged on those representations,” he said.
Cypress City Attorney Fred Galante sent a response letter to Shenkman last month arguing that legal action against the city is unwarranted.
“We would therefore respectfully request that you provide us any evidence you purport to have in support of your allegations so that we can understand the nature of your client’s demand. Your refusal to do so leaves the City without evidence of a [California Voting Rights Act] violation and no rationale for disenfranchising its residents by abandoning at-large elections,” the letter continues.
In Orange County, Garden Grove, San Juan Capistrano, Fullerton, Orange and Santa Ana switched from at-large elections to district elections stemming from litigation threats or lawsuits.
Anaheim ended up making a switch to district voting 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.
Brea Faces Two Competing Legal Threats
Brea council members stopped their switch to district elections less than two weeks before the deadline to submit their new voting map to Orange County Registrar of Voters following pressure from residents and a lawsuit by former city council candidates against the city to stop the switch.
The lawsuit against the city 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 created to avoid.
Steve Baric, an attorney representing Kim and Rios, said other cities are taking a stand against Shenkman.
“You’re starting to see cities like Brea, Cypress and the city of Irvine that are pushing back,” Baric said in a Wednesday phone interview. “They’re standing up for their citizens.”
Last year, Irvine also resisted Shenkman’s calls to change their election system.
Baric said Rios and Kim are reassessing their own legal challenge following the council’s decision.
Hupp, Brea’s mayor, refused to comment on the Kim and Rios lawsuit.
[Read: Will Brea’s Century-Old Election System Be Nixed? Residents Fight Switch to District Voting]
Hupp and her fellow Brea council members themselves have routinely said that they don’t want to make the change to by-district elections but felt forced to after receiving a legal threat three years ago.
“I feel like we’re being blackmailed, strong armed, scammed, however you want to put it…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 an April 5 council meeting
In a phone interview Thursday, Hupp said one of the reasons they decided against switching to district elections is because they’re waiting on the California Supreme Court to make a decision on a similar battle in Santa Monica.
But Shenkman said cities who choose to fight a switch to district elections are making a “dumb mistake.”
“Some of these cities may be looking at that case and then hoping, wishing against all indications, that somehow that case is going to allow them to continue diluting the votes of their minority residents, so that they can stay in power,” Shenkman said.
[Read: Brea Officials Consider District Elections While Facing Two Competing Legal Threats Over Voting]
In 2019, city officials received a letter from Shenkman, representing the Southwest Voter Registration Education Project, which alleged that voting in Brea is racially polarized and the city’s current election system violates the state’s voting rights act by disenfranchising Asian and Latino voters.
Census results from 2020 show the city has a citizen voting age population of nearly 30,000 people – 51% are white, 27% are Latino and 19% are Asian/Pacific Islander residents, according to the city’s demographic summary.
In the letter, Shenkman used both Rios’ and Kim’s failed campaigns as examples of disenfranchisement by the at-large election system in Brea.
He gave officials a choice: switch to district elections voluntarily or face a lawsuit.
Following the 2019 letter, Brea officials had initially been taking steps to cut up the city into districts after making the agreement with Shenkman to curb a lawsuit.
But at their April 5 meeting Brea city council members narrowly voted 3-2 to abandon the switch.
Councilmembers Christine Marick and Glenn Parker were the dissenting votes and both expressed concern about the legal exposure and the cost of a lawsuit.
“The results are not only financial, which could be extreme which would lead to service cuts or changes. We do not have an unlimited budget to fight the (State Voting Rights Act),” Marick said at the meeting. “There is the potential that in that potential lawsuit the districts are drawn for us and they’re not done through a deliberative process that we have had over the last year.”
She also noted the agreement they made.
Councilman Steven Vargas, who made the motion to not move forward with district elections, pointed to other cities standing up against Shenkman.
“With new information about Cypress, essentially, not responding to the Shenkman letter, and the city of Norco in 2017 got the Shenkman letter and didn’t respond to it and still hasn’t had any issues. I think that we should not do this,” he said.
Cypress Ignores Warning Letter
Last month, Cypress City Council Members voted behind closed doors 4-1 to reject a similar letter they received from Shenkman demanding the city switch to district elections.
The closed session meeting and vote sparked questions of whether the vote was illegal and violated California’s Brown Act – the state law that governs transparency for local government bodies, like city councils.
Galante, the city attorney, disputed any potential Brown Act violations in a phone interview Thursday.
“The Brown Act specifically allows public agencies to meet in closed session to discuss a threat of litigation,” he said. “All they did was review a threat of litigation and basically decided to not go along with it and rejected it. That happens all the time.”
Galante also said he reported the decision out of closed session.
David Loy, legal director of the First Amendment Coalition, said the city has the right under the Brown Act to take legal advice from their attorney over threats of litigation.
In a Thursday phone interview, Loy argued that there was also a policy issue at play in Cypress – should the city switch to district elections or not?
“Is it a good idea or a bad idea, litigation aside, to move from at large to district elections? That certainly is embedded in the decision by the council and is implicitly part of the decision they made and I think that should have been discussed and voted on in open session,” Loy said.
Regardless of Brown Act concerns, Shenkman said Cypress City Council members should’ve publicly debated the issue.
“This is certainly a matter of public concern and if the council members were so confident in their positions, there’s no reason for them to hide those positions,” he said.
Cypress council members were hit with a letter in September of last year from Shenkman, representing the Southwest Voter Registration Education Project, alleging the city was violating the state’s voting rights act by disenfranchising Asian American voters in the city.
In Cypress, Asian Americans comprise 37% of the city’s over 50,000 population, according to the Census Bureau. Citizen voting age population data was not available.
“The current complete absence of Asian representation on the City’s governing board is revealing,” the letter reads. “It appears that in the past 20 years, the city’s elections have been almost completely devoid of Asian candidates.”
Galante disputed the city is violating California voting law in his letter to Shenkman and argues that there has been a history of Asian Americans elected to the council.
“In1998 and again (in) 2002, Lydia Sondhi was elected to the City Council. Also, in 2006 and again 2010, Dr. Prakash Narain was elected to the City Council,” reads the letter. “Certainly, these undeniable trends of Asian Americans succeeding in the City’s at-large elections confirm that Cypress is not the appropriate target for your cookie cutter [voting rights act] letters.”
In November 2020, Carrie Katsumata Hayashida, an Asian American city council candidate, came close to being elected, but lost to Council Members Anne Hertz and Frances Marquez.
When Stacy Berry resigned from the Cypress Council, some residents voiced support for Hayashida to be appointed but the council instead appointed Scott Minikus.
Shenkman sent his letter about a month after Minikus was selected, using Hayashida’s failed campaign as an example in his letter of vote dilution.
In the city’s response letter to Shenkman, Galante argued that residents were concerned with losing their ability to vote for all five seats and that no areas in the city have a high concentration of any protected class 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.
Hosam Elattar is a Voice of OC Reporting Fellow. Contact him at email@example.com or on Twitter @ElattarHosam.