Substack article: Irvine’s Special Election Must Be Citywide

This issue is the bad penny of redistricting, it seems to keep coming up. I thought we had finally gotten far enough away from the decennial redistricting that we had seen the last of it. Then along came the City of Irvine.

Irvine is preparing to hold a special election to replace former Councilmember Larry Agran, who just won a race for Mayor. He was elected to the city council in 2022 in an at-large term which expires in 2026, so there will be a special election to fulfill the remaining two years on his term. But rather than have a citywide election, Irvine wants to replace him with an election JUST among voters in their newly drawn 5th District.

But this isn’t how it works. The special election must be held citywide – not just because I say so – but also because former Attorney General Kamala Harris and current Attorney General Rob Bonta have said so in past decisions in other California jurisdictions. And, as one top redistricting attorney recently told me about a similar situation in a diferent jurisdiction: “Paul, it’s simple constitutional law!”

For people who need some convincing, let’s backup and review the basics. When you do a redistricting, the seats being drawn take effect at their next election. This is consistent if you are redistricting for Congress, city council, school board or any other electoral office. The new lines don’t effect current representation or undo past elections.

If you want a thought experiment, think of California’s 53rd Congressional District, represented in 2021 by Sara Jacobs. In 2021 the California Redistricting Commission released their final map with just 52 districts due to CA losing a seat in reapportionment.

When they passed that map, did Sara Jacobs get escorted out of Congress? Was her seat disappeared? Did it move to Texas? No. Jacobs still held the 53rd District for the full length of the term she was elected to, and in 2022 she ran for and won the newly drawn 51st Congressional District. The State had redistricted a year before she was sworn into her new seat, but at no time was any voter’s right to representation ripped away by the redistricting commission.

At the heart of it is the fact that when a voter elects someone, it is for a set term. And the voter action is the most important part of the process. The state redistricting commission or a county or city council can’t undo that voter’s right to a representative. When a redistricting comes along, that action doesn’t reach back in time and undercut that vote – that vote still stands and everyone who has a redistricting change their seat fulfills the full term they were elected to first.

This also holds if a member of congress dies, as was affirmed in the CA Supreme Court case Sloan v. Donoghue where the court affirmed that when redistricting was done to a congressman’s district after his election, and then the congressman died during his term, the special election to fill out the remainder of his term was to be held in the district as constituted at the time he was elected. The legislature couldn’t hold his replacement election under the new lines.

My earliest personal experience with this was back in 2013 when I was asked in my role at PDI to help a campaign get data for a potential special election in the City of Moreno Valley. Given that the 2011 redistricting had just been completed and the seat being replaced was up for election in 2014, I told the political consultant that the data they would need was for the OLD district lines. Those would be where the city would hold an election or select a replacement for the remaining year of the four-year term. Only in 2014 would they use the new boundaries of that district.

This caused confusion, and there was a lawsuit, and the legal opinion from then-Attorney General Kamala Harris was that the old lines were operative – not the new lines, and the city was incorrect to use the new lines that hadn’t been yet implemented.

Their finding was clear: “The redrawn boundaries should not be used for a given office until the first regular election for that office.” As with other AG opinions on the subject, the regular election for that office was set in the redistricting as 2014.

Similarly, in Irvine, the regular election for the 5th District was set by the redistricting to be 2026, and the city cannot move that election into 2025 to hold an election for that office before the seat has been implemented.

In talking to some in Orange County some have been told that it is different there – but it isn’t. The council recently converted to districts, and in doing so took advantage of a rule that allows them to simultaneously change their form of government and number of councilmembers. Rather than having five councilmembers elected citywide, they converted to an elected Mayor, and six district-based councilmembers.

In 2024, they had elections for districts 1-4, including three incumbents whose seats were up in 2024 and the additional seat created by the expansion of the council. Districts 5 and 6 were set for 2026, when those council members who were elected in 2022 would have their replacements elected. But, the city charter they adopted when they passed their new election system had a very strange bit of language that said if the mayor elected in 2024 comes from either districts 5 or 6, ONLY voters from one of those districts would elect their replacement in a special election in 2025.

Essentially, this charter is saying that voters who elected Larry Agran to a citywide four-year term in 2022 can elect his replacement, but only if they happen to live in the district that takes effect in 2026. This means 5 out of 6 voters, or 83% of the electorate, are being robbed of their ability to elect the replacement for a council member who is vacating the seat to become mayor.

To dig into how wrong this is, let’s look at a recent official opinion from California Attorney General Rob Bonta who has been active in enforcing the law regarding elections for representatives in newly districted areas. In this opinion from 2022 his office was asked regarding a school board election (which is under the same FAIR MAPS laws as cities and counties) if the replacement of an at-large elected official can be replaced by just the voters in a district. The whole opinion is a great read, but this brief Q&A pretty simply lays it out:

Q: Where a school district changes from at-large elections of board trustees to by-trustee area elections (in which the district is divided into trustee areas, and trustees must live within specific trustee areas), and a vacancy arises in a seat held by a member who was elected at-large, do the new by-trustee areas apply in filling the vacancy?

A: No. In this circumstance, the boundaries in effect at the time the member was elected apply for the purpose of filling the vacancy.

Replace “school board” with “city council” and it is perfectly clear that what Irvine is trying to do is not lawful. The voters in Irvine who live in the boundaries in effect at the time the member was elected are the ones who get to vote to fill the vacancy.

But, what about the argument “It’s in the City Charter!”

Well, that doesn’t hold any water. One perfect example of this comes out of the City of Los Angeles, where the city charter says that council boundaries are implemented immediately after a redistricting, even for recall and replacement. This absurd charter language means that if someone was elected in downtown Los Angeles, but their district number moves to the Valley they have to move their district offices and instantly represent a whole area that never elected them. That’s hogwash! And, to make it worse, if their district number is moved to the Valley, voters there could recall that council member immediately. Insane.

And also, this isn’t how the Los Angeles City Clerk interpreted the law when confronted with a recall post-redistricting. Presented with a request to begin recall petitions against Kevin DeLeon in District 14 they had to review the conflict between the city charter language, the State FAIRMAPS Act, and Attorney General Opinions. When they released signature forms for that recall, they released them as valid within the lines of the OLD CD 14, not the district as it was redrawn. And, while Council District 6 didn’t change in their redistricting when the Clerk put out the materials for the replacement of Nury Martinez after she resigned, they made it clear the election was being held in the old lines to fulfill the remainder of her 2020 term.

And it’s not just Los Angeles. In Sacramento the City Council did their redistricting per their new city charter, and once the plan was adopted they used the language stating that it takes effect “immediately” to mean that everyone on the council represented their new districts. And, almost instantaneously conservative residents in the more posh East Sacramento communities tried to pull petitions for a recall against their new councilmember from Downtown, progressive Katie Valenzuela. The city approved recall petitions to go out for signatures, even though those voters weren’t in her district when she was elected in 2020.

This one didn’t go as smoothly. When I brought up to the Sacramento Bee that their reporting was wrong, I was told, “No, you’re wrong!” Then I talked with Mayor Steinberg and he wasn’t convinced, but told me to talk with the City Attorney, and then I talked to a few council members. It wasn’t until I was asked to present to the City Council and explain the law, and armed with another AG opinion that the City reversed course – the councilmembers got their old districts back – and those voters were told their recall petitions were invalid and some in East Sacramento have hated me ever since. (Funny side note, despite being blasted as some Katie Valenzuela activist, I had never met her until just last week when we finally had coffee in midtown.)

Relevant to Irvine, the AG opinion that gave Sacramento Councilmembers back their seats was based on a case out of Orange County. There the Supervisors, who didn’t have professional redistricting consultants, sought to make their districts take effect immediately, even to the extent that it seemed to punish a particular supervisor who was being told she could no longer represent the area in which she was running for re-election, because of how they had drawn and numbered the districts. In this Attorney General Opinion, AG Bonta stated:

A special election to fill a supervisorial vacancy must be conducted according to the district boundaries as they existed when the term began, not according to the district boundaries adopted by intervening redistricting.

Again, counties are under the same FAIRMAPS provisions as cities. And if a city has to hold elections for vacancy under the district as it was when that representative was elected, then Larry Agran’s at-large seat replacement needs to be elected citywide!

I think that closes the book on Irvine.

But, for those who have hung on this long, I think this is a great opportunity to dive into a tangentail issue – that of how this all is complicated when we are dealing with four-year terms, in staggered two-year election cycles. And I want to propose a solution.

In most states with bicameral legislatures, there are State Senate seats that are four years, with half of the body elected each two years. In California, the redistricting was done in 2021, after which all the even-numbered State Senate seats were up for election in 2022 under the new lines. But the odd-numbered seats were not up for election. What happened to those?

Well, based on the primacy of the voter choice, nothing. In a 2021 redistricting, the seats that were up in 2022 get done in the new lines, but the seats that were up in 2024 don’t change at all, not until the 2024 election we just had when state senators in the odd-numbered seats were elected.

This process was affirmed by the CA State Supreme Court when they found after the 1973 court-enacted redistricting plan “Senators in odd districts elected in 1972 were entitled to serve until 1976, and if vacancies occurred in those districts before 1976, they would be filled using the districts in effect in 1972.”

This is probably the most complicated conversation in redistricting, but the staggered implementation of a redistricting plan creates pockets of the state where some voters were previously in even-numbered seats, and voted for their State Senator in 2018, but were moved from that even-numbered seat up in 2022 to an odd-numbered one up in 2024. When these voters went to their polling place in 2022, expecting to vote for State Senate, they didn’t have any race on their ballot. This is called a “deferral” since these voters are deferring their 2022 opportunity to vote until 2024.

In the inverse, if someone was in an odd-numbered seat and elected someone in 2020 but they were in an odd-numbered seat, they got to vote again in 2022 because of the new lines. They had their votes “accelerated.”

An area that is accelerated technically has two State Senators representing them at the same time – one they elected in 2020 and a second they elected in 2022 (lucky them!) but voters who are deferred don’t have any State Senator for a two-year period. Agencies like the California State Senate have processes they use to make sure that representation is managed during the two-year implementation of the new lines.

School Boards, City councils, and County Supervisors also commonly have four-year terms, and without the history of dealing with accelerations and deferrals, local governments have a tendency to trip over the rules, to the point of actually disenfranchising voters and, inadvertently violating their constitutional rights.

This is what is happening in Irvine. I think the council and attorneys correctly judged that it would be cleaner to have a process that allows for advancing that District 5 election. Alternatively, if someone was elected to a seat in 2025 in an at-large seat expiring in 2026, and did it in any of the Districts 1-4 there wouldn’t even be a seat for them to run for in 2026 as all those seats are up in 2028. So, it makes some logical sense. But it isn’t the right solution.

There is one ingenious way I found that cities can avoid this confusion of Accelerations and Deferrals and would be constitutional. I found this when doing the redistricting in the City of New York. There, the council with a whopping 51 seats has four-year terms, but in the election prior to each redistricting, those seats are elected to two-year terms. This means that when they were doing their redistricting prior to the 2023 election, they were drawing lines for half the council that was elected in 2019, and up in 2023, and the other half were elected in 2021, with shortened two-year terms, so they were also up in 2023. Then, in a much cleaner process than what is used in California, ALL the councilmembers were elected to new districts in 2023, with half again elected to two-year terms, and the other half to four-year terms, so they were again staggered.

This little NYC trick avoids all the headaches of accelerations and deferrals, and I personally think some election nerd in the CA State Legislature should make an amendment to the FAIRMAPS Act to allow for this type of system in our city council, school board, supervisor and other elections.

Who do I think I am? If you don’t know me I am Paul Mitchell, Vice President of Political Data, a voter data firm in CA, and owner of Redistricting Partners where we have done over 100 municipal redistrictings, advised states, ethics commissions and outside organizations in 15 states and were the demographers for the State of New York Redistricting Commission. I can be reached at paul@politicaldata.com or on Twitter at @paulmitche11