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Matthew Leslie

In November Fullerton held its first ever City Council elections by district. Three candidates appeared on the ballot for 3rd District voters, where Jesus Silva prevailed with 53.5%, a majority of the vote.

But in the 5th District, as in many past city-wide council elections with many candidates running, the winner had only a plurality of support. Ahmad Zahra fin- ished first in a field of five candidates with 33.1% of the vote.

Congratulations are due to both candidates on their hard-fought campaign victories, but across the city, county and country many voters are asking whether or not a “winner take all system” where candidates are elected to office with less than half of the votes in a given election is the most democratic way to hold elections.

In some cities, candidates have been elected with small percentages of the vote—sometimes less than 10%—simply because there has been a crowded field of candidates in a race. Had there been more candidates in the District 3 election, it seems doubtful that any of them would have crossed the 50% threshold.

In 2016’s combined at-large election none of the three candidates who won seats on the City Council had even 20% of the vote. In a field of thirteen candidates, Jennifer Fitzgerald received 17.2%, Bruce Whitaker received 14.5%, and Jesus Silva 14.4%.

Some local voters have suggested that a runoff ought to be held to ensure that no one is elected without receiving a majority of the vote, but runoff elections are expensive, both for the city and the candidate, and simply extend the campaign season, making it even more costly to run for office.
How about an instant runoff built right into the voting process used for a single general election? It’s called Ranked Choice Voting (or sometimes Instant Runoff Voting), and it’s been used effectively by municipalities in countries around the world, by private organizations (like the Academy Awards), by many colleges and universities, and even, in some cases, by the U.S. military.
According to Fair Vote, Ranked Choice Voting (RCV) is currently used in some form for government elections in cities in six U.S. states, including Berkeley and Oakland, CA, Santa Fe, NM, Telluride, CO, and Minneapolis and St. Paul, MN. RCV has been adopted, and is awaiting implementation, in cities or counties in four additional states, including Memphis, TN, Las Cruces, NM, Amherst, MA, and Benton County, Oregon.

In 2018 Maine became the first state to use RCV for government elections statewide, includ- ing for U.S. Senate and Congress. Six other states use RCV for military and overseas voters.
RCV is being adopted by more and more municipalities because it offers a superior system to the winner- take-all elections we settle for now, where candidates can be elected with a small minority of support simply because so many candidates choose to enter a given race. The concept of ranking candidates is simple: instead of only getting to choose a single candidate from a list of several on a ballot, voters can rank their choices from “1” to however many candidates there are in the race (or stop at a lower number, if they choose).

If a single candidate is ranked “1” by more than half of the voters in the elec- tion, that candidate automatically wins, much like the current method used in Orange County primary elections.

But, if no candidate receives over half the vote, instead of having to schedule a separate runoff election RCV has a runoff built right into the system.

In an RCV election, the candidate with the least amount of number “1” rankings is eliminated from the race. Anyone who ranked that candidate as “1” will have their number “2” choice counted instead.

This process of eliminating candidates continues until a candidate has votes that total over half, or “50% plus one.”

Ultimately, the winner either has more than half of the electorate’s support out- right, or accrues it through rounds of counting votes where that candidate may have been the second, third, etc. choice of a voter whose first or second choice had little chance of prevailing in the end. (The threshold for winning can even be set at a higher or lower percentage of the vote, but for our purposes, over 50% is sufficient.)

A simple demonstration of how RCV works can be found at this link:

Ranked Choice Voting in Fullerton elections would be likely to result in:

 

•Better representation of the will of the voters. If voters are allowed to rank their candidates from best to worst, their votes will actually count for something, even if their most preferred candidate doesn’t fin- ish at the top of the list. It’s like having a runoff without an extra election.

 
•Less negative campaigning. Even though a candidate might know that some voters are likely to back one of their oppo- nents, they will still want those voters to consider them for their second or third choice, which will discourage candidates from running negative campaigns against one another, potentially alienating an opponent’s supporters.

 
•Eliminate the “spoiler factor.” With RCV there is less pressure to keep people from running for office for fear that they will “draw votes away” from another can- didate, and less incentive to intentionally run candidates for the same purpose. Voters can vote their consciences, even if they don’t think their first choice has the
best chance to win, because their second choice might be a candidate they don’t care for quite as much, but who they may think has a better chance of winning.

 
•Diversify funding by big donors. Big funders like the developers and the police and fire unions can’t afford to put all of their eggs in one basket, meaning they will have to spread their money around to support multiple candidates, leveling the playing field.

 
•Encouraging grassroots support of candidates by forcing them to appeal to a greater number of voters. Instead of settling for electing people with 40%, 30%, or even 20% or less support with our current system, Ranked Choice Voting would allow voters a more inclusive, more representative way of electing people to our City Council. The Fullerton City Council should place RCV on the ballot of the next election to allow voters to decide whether or not to adopt it for City Council elections in the future.

Coyote Hills Vista

Angela Lindstrom, Friends of Coyote Hills

The 4th District Court of Appeals side- stepped the people’s referendum right issue when it ruled against the Friends of Coyote Hills on their Measure W lawsuit on December 6, 2018.

The judges framed this lawsuit more narrowly as a business contract between Chevron-PCH and the City of Fullerton even though the subject of the 2012 Measure W referendum, the West Coyote Hills Development Agreement, was codified through a City ordinance which is subject to referendum.

The City wrote the West Coyote Hills development approvals so that if the Development Agreement was terminated, the other approvals such as the General Plan amendment, Specific Plan, and even the Environmental Impact Report (EIR) would be overturned.

The Friends of Coyote Hills sued the City of Fullerton after it gave final vesting rights to Chevron-Pacific Coast Homes in 2015, despite the people’s successful referendum which should have terminated the Development Agreement.

The appeals court ruled that while the Development Agreement was approved through an ordinance, the City and Chevron had the final say on whether it would be terminated even after a referendum because that was what they wrote in the Development Agreement. The people’s referendum veto was therefore moot. Since the City and Chevron chose not to terminate the Development Agreement after the referendum, the other development approvals stand.

While it’s not surprising that the appellate court avoided ruling on a constitutional matter, this case leaves the door open for the City of Fullerton and other California cities to write ordinances that deprive people their referendum veto, a right granted by our state’s constitution.

 
In recent years, the State Supreme Court has overruled Orange County courts when cities overstep their powers to make land use decisions at the cost of people’s right to participate.

 
In December 2016, the California Supreme Court unanimously sided with the citizens of Orange to reaffirm decades of well-established planning law that supports the right of voters to use the referendum process to challenge local land use decisions.

 
In March, 2017, the California State Supreme Court sided with the Banning Ranch Conservancy against the City of Newport Beach. The Orange County Register reported that “The case hinged on a simple question: Did the city of Newport Beach violate its own municipal ordinance in 2012 when city planners approved development at Banning Ranch, even though voters in the city had previously said they wanted the land to remain open space?”

 
The Friends of Coyote Hills have until January 15, 2019 to file a petition to the State Supreme Court to review this case. A generous donor has already kickstarted a $20,000 challenge grant to support the Friends of Coyote Hills’ continued effort to save Coyote Hills and preserve the public vote.

If you can make a donation please visit the Friends of Coyote Hills website at www.coyotehillls.org or call 657-325-0725.

The empty seat on the Fullerton City Council should be filled by election, not by appointment.

Diane Vena

(Reprinted from the Fulleton Observer and the Voice of OC)

When Jesus Silva was sworn in as the District 3 Fullerton City Council Member at the December 4 City Council meeting, he vacated the remaining two years of his at-large seat on the Council.  At the December 18 meeting, the new City Council should schedule a special election for the Fullerton voters to determine who will fill the remaining two years of his at-large seat rather than appoint his replacement.

On November 6, a majority on the Council approved a change to the Fullerton Municipal Code that no longer requires a special election to fill a vacancy on the City Council. The revised code still allows for a special election, but it also now gives the Council the power to appoint a council member for the second half of a four-year term without an election.

Residents who were able to attend that Council meeting while the polls were still open on election night, spoke in opposition to this change and expressed concerns that the Council was making this change just in time so that it could appoint a replacement if Silva won his bid for District 3.

Council Member Fitzgerald dismissed the residents’ concerns saying, “We are not having that debate (about whether the Council will appoint a replacement).” She and Council Member Whitaker each stated that the change was simply to align with a new state law – enacted in 2015.

But Fullerton’s code prior to the Council’s changes, last updated in 2011, was not out of synch with the latest version of California Government Code 36512. While the state law does allow a city council to appoint a replacement for the second half of a council member term without a special election, it does not require a city to adopt that option. Section (c)(1) explicitly states that “a city may enact an ordinance that requires that a special election be called immediately to fill every city council vacancy.”

When this important decision comes before the Council on December 18, the argument in favor of appointing will likely be that the cost of holding a special election is too much. When City staff introduced the ordinance at the October 16 meeting to change the code, they estimated a cost of $391,532- $428,150 to run a special election and $224,055 – $260,866 for an all-mail ballot election, which the City might be able to hold if it meets specific criteria in Elections Code Section 4005.

But how much is “too much” when the rights of voters to determine one of five people to represent a city of 130,000 for two years is at stake?

When the Council considers what our voting rights are worth, hopefully it will also consider the opportunities at which it failed to avoid the potential need to fill a council vacancy during the transition to by-district elections. The Council made the decision that created the potential for this vacancy when it chose to place District 3 on the ballot in 2018 knowing that there were two current council members residing in that district and that both would likely run and if the more recently elected was to win, he would have to vacate his at-large seat.

If the Council then argues that it had to put District 3 on the ballot in 2018 to “be fair” to Council Member Sebourn who, upon nearing the end of his at-large term in 2018, would otherwise not be able to run for re-election in his district, that problem was also created by the Council. In August of 2016 it chose the district boundaries. To avoid placing then Council Members Chaffee and Sebourn both in District 2, it approved a map that cut-out a small segment of District 2 to put Council Member Sebourn into his own district, District 3, where no other council member lived until Silva was elected in November 2016.

Voting rights are priceless and should not be taken away to fix any of the problems the Council created. We elect a council member to be one and only one representative on the Council. Making an appointment would give the council members more representation than they rightfully have. The Council makes important decisions that have far-reaching and long-lasting effects on all who live in Fullerton. Those decisions should only be made by voter-elected representatives.

It is unfortunate that when Fullerton is trying to increase voter representation on the Council through a change to district elections, there is now a move to decrease it, which is what would occur if an appointment rather than a special election is used to fill the vacancy on the Fullerton City Council.

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