The Anaheim Council’s Wrench in the Works — and How to Remove It

Anaheim’s City Council meets tonight for its second reading and final approval of the measures that it wants to place on the June 2014 ballot. (“Final,” that is, until and unless Judge Franz Miller tosses them out, perhaps as early as the hearing a week from today.) The main measure would introduce what I’m calling “candidate residency” districts — spreading out where candidates for Council would have to live. As we’ve covered elsewhere (and will do again below), it’s a bad proposal — not because of what it does, but because of what it doesn’t do. Its main point is to leave the Anaheim Hills and Resort Interests securely in charge of who runs the city.

The most important thing to know is that the Council majority lead by Councilwoman Kris Murray (aka the “Murrjority”) has intentionally structured the ballot measure to make a better ballot measure very difficult to pass — even if the city put together a citizen initiative.  A citizen initiative would not only have to exceed 50%, but it would have to get more votes than the Council’s referendum

The second most important thing to know is doing things this was is totally unnecessary and can easily be fixed.

Kris Murray Sticks Her Head in the Works

If you’ve never seen Chaplin’s “Modern Times,” you’re not going to get it, so just don’t worry.

1. Candidate residency “districts” aren’t districts

A candidate residency requirement is, other things being equal, usually a good thing — except when the entire electorate gets to vote on who will represent each district.  Then it ranges between “mostly pointless” to “actively bad.”

Imagine, for example, if Democrats passed such a law for the State Senate: all 40 State Senators would be chosen by the entire electorate rather than by the voters around them.  Pretty much only Democrats would win, even in the most conservative districts, given the statewide vote.  I’d be in the State Senate right now; so would Steve Young.  If Vern rented an apartment in San Clemente, the Democratic-leaning majority would elect him too.  See how bad it could get?)

“Candidate residency” districts are also known as “Santa Ana-style” districts (for the style of districts used in that city) — or, if it’s Kris Murray talking — just “districts.”  This is because Murray wants to fool people into thinking that they are just as much “districts” as “voter residency” districts — the sort with which we’re familiar in a legislature.  The overriding concern of the Council majority is that the less wealthy and influential parts of the city — coincidentally, where the Latinos tend to live — not be able to elect their own representatives for their own area.

They’re fine with the appearance of self-governance — as in “someone from the community is the representative” — so long as, like the British appointing a colonial administrator in India,  they get to choose who that is.  If it’s someone that serves the interests of the overlords rather than the people around them — well, to them that’s a feature of the system rather than a bug.  They want the district’s reps to follow the interest of the voters — and most of the voters will be outside of that district.

(Note also that a “community” of 55,000 people — that’s the size of each of the six districts Anaheim wants to establish — is a far cry from a “neighborhood.”  Most people won’t live anywhere near their representative.  And I’m sure that, in any event, the city would draw lines through a process that I’m sure would be just as fair and representative as the appointments to the Charter Review Commission — that is, barely at all.)

2.  What they’re doing is bad; how they’re doing it is worse

What the Council is doing is taking the “candidate residency” plan — already passed in an ordinance — and embedding it in a larger system that is incompatible with a “voter residency” system.  This isn’t happening by accident; it’s very intentional.

The reason is this: if there were another measure proposed — say a “citizen’s initiative” (as has been discussed) that would place a charter amendment on the ballot to create the sort of “voter residency” districts that we (and the law) normally think of as “districts” — that conflicted with the “candidate residency” plan, that measure could not go into effect at the same time as the Murrjority’s referendum.  Only the proposal with the greater number of votes would go into effect.

In other words, if the City Council’s proposed charter amendment received 99% of the vote and a citizen’s initiative charter amendment received 98% of the vote, only the former would become law.  Given an inexhaustible supply of money to use to confuse and mislead the public, it may not be easy to knock a popular initiative below 50%, but it should be very easy to knock it down enough that it would be exceeded by a benign-looking referendum.

That’s the point of it!  That’s why the City Council wants this referendum on the ballot — this ballot.  That’s why the referendum is written precisely so as to conflict with a citizen’s initiative measure.

3. Luckily, a Court Can Easily Fix It

I think that Judge Miller should be prepared to impose a voter-residency requirement himself, without a vote.  (This is a matter of a fundamental right to equal protection of the laws; it’s not something that we subject to a vote.)  But I can understand that it’s better for the citizens to vote it in — and that he’ll probably want to give the citizens a chance.  (It will be interesting to see the campaign against it, for one thing.)  So the second-best choice would be for him to use his powers to place it on the ballot.  The third-best option — a seeming waste of time and resources, but I suppose a good organizing tool — would be for him to stand aside and allow a citizen’s initiative campaign to take place

But what would a citizen’s initiative look like, given the problem identified above?  Here, Judge Miller can — and I’d say pretty much has to — use his powers to allow a citizen’s initiative campaign to go forward with a “clean” ballot measure, something like this:

“Districts of equal population within Anaheim will be established to choose representatives for City Council.  [Ideally this would be by a truly independent commission!]  Only voters residing within a given district may vote for the City Council representative for that district.”

For this not to run afoul of the problem identified above, though, Judge Miller would also have to do something else.  He’d have to take the convoluted and contradictory referendum passed by the Council and reduce it to this.

“Districts of equal population within Anaheim will be established to choose representatives for City Council.  [Ideally this would be by a truly independent commission!]  Only candidates residing within a given district may run for the City Council representative for that district.”

Now, we have two simple propositions.  Both create districts using exactly the same language, so there’s no contradiction.  One says that voters must live in those districts; one says that candidates must live in those districts.  As they do not contradict, both should be allowed to go forward independently.

(Note: there’s an argument that they do contradict, legally even if not logically, because they both deal with Council elections.  The City Council clearly doesn’t believe this, though.  The Murrjority approved separate ballot measures for a candidate residency requirement and for a change from 4 to 6 districts, which both deal with the subject matter of elections — but they never suggested that only the one of these that got the most votes would take effect!  So I think that the same logic should apply here.)

However, if Judge Miller finds that they do contradict — I believe that it would depend on how broadly he interpreted the term “subject matter” — then he can simply combine them into one measure.

The 6 vs. 8 seats question is more knotty because these truly are “competing measures” and 6 would almost surely win — people who want 8 would have to vote for 6 also so as to keep the city from staying at 4.  So, if the Council doesn’t relent and the city doesn’t change it, there’s a decent second-best solution: vote on 6 districts in June and vote on 8 districts in November.  That will eliminate any problem of conflicting measures.

The Council is not going to want to do this.  They will NOT want people to vote separately on compatible measures for voter-residency and candidate residency.  The question you’ll want to ask yourself is: why?

Judge Miller will, no doubt, be asking that same question.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)