11 Of SBC’s Municipal Council Elections Going Uncontested To The Incumbent

By Mark Gutglueck
Eleven incumbent council members due to stand for reelection this year throughout San Bernardino County, including all three up for election in the City of Highland and both of those in the upcoming Town of Apple Valley contests have been given a free ride back into office as no one in their jurisdictions had come forward to challenge them by Friday, August 7, the conclusion of the candidate-filing deadline for the balloting throughout San Bernardino County to be held in conjunction with the 2020 Presidential General Election on November 3.
Highland Councilman Jesse Chavez, who was first elected to the council in 2016 when the city transitioned to by-district elections and in December 2017 was appointed to serve a one-year term as mayor pro tem, was unopposed in his pursuit of reelection in Highland’s District 1. Highland Councilwoman Penny Lilburn, who has been on the council since 2004, has served as mayor as well as mayor pro tem in the past and represents Highland on the board of directors for the Valley Transportation Agency, the Omnitrans Board of Directors, and the San Bernardino International Airport Authority Board, will serve four more years representing District 3. Larry McCallon, who is currently serving as Highland’s appointed mayor and has formerly held that post as well as that of mayor pro tem and Highland’s voting representative on multiple governmental adjunct regional bodies such as the San Bernardino County Transportation Authority, the Southern California Association of Governments, the San Bernardino County’s Local Agency Formation Commission, and the South Coast Air Quality Management District, drew no opposition.
Apple Valley Councilman Art Bishop, a member of the San Bernardino County Transportation Authority and a delegate to the Mojave Desert and Mountain Recycling Authority, will accede to another term on the council representing Apple Valley, this time representing the town’s residents in the newly-formed Second District. This is the first year that Apple Valley has held by-district elections. No one in the Second District emerged to challenge Bishop, who is retired as the fire chief of the Apple Valley Fire Protection District, which serves as Apple Valley’s fire department. Similarly, Larry Cusack, who was chairman of Apple Valley’s planning commission before he was elected to the city council, was given a free pass in this year’s election, in which he was due to stand for election in Apple Valley’s First District.
In five other San Bernardino County cities this year – Chino Hills, Hesperia, Colton, Redlands and Twentynine Palms – at least one incumbent holder of a city council position elected by district is not facing any opposition.
In Chino Hills, Cynthia Moran, who is the council liaison with the Chino Valley Unified School District, a member of the Southern California Association of Governments’ Energy & Environment Policy Committee, a member of the Omnitrans board and its Plans & Programs Committee, on the Environmental Quality Policy Committee of the League of California Cities and the vice chair of the Chino Hills Community Foundation Board, has no opposition in that city’s District 5. In Hesperia, no one is challenging Brigit Bennington, who was appointed to the District 4 council position last year after the city council cited what it said were residency violations to forcefully remove Jeremiah Brosowske, who had eked out a narrow victory over Bennington in the November 2018 election. In Colton, neither Kenneth Koperski, the appointed incumbent in the city’s Third District, nor Isaac Suchil, the elected incumbent in the Sixth District, have opponents. In Redlands, which experimented with district elections in the 1990s and returned to at-large elections only to reinitiate by-district elections in 2018, incumbent Eddie Tejeda attracted no one to contest him for the city’s northside District 2 seat on the council. In Twentynine Palms, incumbent Steve Bilderain, who was most recently elected at-large in 2016 and is now seeking election representing District 1, has no opponent.
A significant number of the county’s cities and both of its incorporated towns were strong-armed into moving to by-district elections toward the middle of the last decade. A number of lawyers, R. Rex Parris, the Malibu-based law firm Shenkman & Hughes, the Los Angeles-based Law Office of Milton C. Grimes and Matthew Barragan had threatened lawsuits against those municipalities which those lawyers said would allege those cities and towns had engaged in racially-polarized or ethnically-polarized voting. The California Voting Rights Act conferred upon plaintiffs alleging the existence of such biased elections who were seeking to redress those circumstances certain strategic legal advantages, such that even if the challenge does not succeed a plaintiff is not required to pay the prevailing city’s legal fees. Conversely, a city which fails to vindicate itself in the face of such a challenge must pay the legal fees of the prevailing party.
While many city officials and residents in cities where racially polarized voting had been alleged denied those charges and expressed umbrage at the suggestion that there was a systemic or institutionalized racial or ethnic bias built into their political establishments, ultimately most did not resist being forced into adopting ward or district electoral systems. That was because a handful of California cities that resisted challenges made to their election systems under the California Voting Rights Act were unsuccessful in their legal defenses and were forced by the courts to pay substantial amounts to cover those legal fees.
In 2001, the California Legislature enacted the California Voting Rights Act, under which a plaintiff or plaintiffs can file legal action against a governmental jurisdiction alleging polarized voting has taken place in its past elections and seek the remedy of having that jurisdiction switch from at-large elections to ones involving ward or district systems. The theoretical justification for having a city or governmental jurisdiction form such districts is the perceived likelihood that it will create political subdivisions in which the election of a member of an ethnic or racial minority is more likely to take place than in an at-large election. Upon proof being presented that such polarized voting exists, the courts will then require that the governmental entity in question adopt the ward system and require that the governmental entity pay the legal fees for the attorney or attorneys representing the plaintiff[s].
In San Bernardino County, many cities were perceived to have foreclosed minority rights because of the relative scarcity of elected Hispanic office holders, despite a substantial Latino population. Highland was among those cities and it was the first San Bernardino County city served with a demand that it alter the way it elects its council members. That lawsuit was filed July 18, 2014 in San Bernardino Superior Court by a Lancaster-based lawyer, R. Rex Parris, in conjunction with the Malibu-based law firm Shenkman & Hughes and the Los Angeles-based Law Office of Milton C. Grimes on behalf of Lisa Garrett, a Latino resident of Highland. In response, the city put an initiative on the November 2014 ballot, Measure T, asking if the city’s residents were in favor of a ward system. Measure T went down to defeat, with 2,862 votes or 43.01 percent in favor and 3,793, or 56.99 percent opposed. The lawsuit proceeded and the city sought to assuage the demand by proposing to allow cumulative voting, in which each voter is given one vote for each contested position and is allowed to cast any or all of those votes for any one candidate, or spread the votes among the candidates. When the matter went to trial, despite making a finding that the socio-economic-based rationale presented by the plaintiff’s attorneys to support the need for ward elections was irrelevant and that the plaintiff’s assertion that district voting was the only way to cure the alleged violation of the Voting Rights Act was false, San Bernardino Superior Court Judge David Cohn mandated that Highland adopt a ward system.
Thereafter, when Parris, Kevin Shenkman, Mary Ruth Hughes, Grimes and Barragan made threats, city after city and town after town – Barstow, Big Bear Lake, Chino Hills, Chino, Fontana, Hesperia, Rancho Cucamonga, Redlands, Twentynine Palms, Upland, Yucaipa, as well as Apple Valley and Yucca Valley – complied with the demands for shifts to ward systems, with those cities in many cases paying the lawyers the costs they claimed they had sustained in forcing those cities into compliance. Many of those observing that element of what was occurring independently remarked that it thus appeared that Parris, Shenkman, Hughes, Grimes and Barragan were not truly committed to redressing so-called polarized voting but rather shaking cities down in looking for a lucrative payday. In virtually every case, the cities and towns in question used consultants such as National Demographics Corporation to draw up district or ward lines that were gerrymandered to provide the incumbent councilmembers an advantage by placing them into districts that did not include other incumbents, and by timing the elections in such a way that their districts held elections at the end of the electoral cycle they were put into office in their most recent at-large election. In none of those cases did Parris, Shenkman, Hughes, Grimes or Barragan raise any objections to how those district lines were drawn, even when they appeared to perpetuate the racially-polarized or ethnically-polarized voting that their actual or threatened lawsuits were ostensibly aimed at curing.
This year, the degree to which the mass move toward ward/district electoral systems in San Bernardino County has undercut the democratic process it was intended to boost was evinced in the nine separate elections in Highland, Apple Valley, Chino Hills, Hesperia, Redlands and Twentynine Palms where those nine incumbent councilmembers are not being challenged. For decades, Colton has had a by-district election system.
Accordingly, a group of county residents, among whom are a number who were opposed to the ward/district electoral system switch-overs during the last two election cycles, are looking at the potential for taking legal action against the cities in question either collectively or individually, as well as against Parris; Parris’s law firm; Shenkman; Hughes; the Shenkman & Hughes Law Firm; Grimes; Grimes’ law firm; Barragan; the Mexican American Legal Defense Fund, for whom Barragan then worked; the National Demographics Corporation; and any others who participated in or profited from the move to design the electoral ward/district systems.
Now being explored is whether the contemplated plaintiffs would have adequate legal grounds and valid causes of action to file suit to have at-large elections restored and prevail in that action, and whether including Parris, Shenkman, Hughes, Grimes, Barragan and their current and former law firms in the legal action as defendants would be efficacious and permissible under the statute of limitations, which some theorize might not yet have begun to run or may have been tolled because none of those entities followed through to ensure that districts/wards put in place met the full criteria of the California Voting Rights Act. Also under review is whether the provision of the California Voting Rights Act which indemnifies plaintiffs alleging a voting rights violation would extend to the plaintiffs in the contemplated action.
In emails sent and phone calls made to the offices of Parris, Shenkman, Hughes, Grimes and Barragan, the Sentinel sought to determine whether they were aware that there are nine separate municipal elections in San Bernardino County in which the incumbent in a recently created district or ward is facing no opposition, and whether they agreed with the observation of some San Bernardino County residents that this is an outgrowth of the mass move toward by-district or by-ward elections that took place across San Bernardino County over the last five years, in which Shenkman, Grimes, Parris and Barragan were prime movers.
The Sentinel further sought to ascertain whether Shenkman, Grimes, Parris and Barragan had remained focused on the transitions to by-district or by-ward voting sufficiently to recognize the degree to which the districts and wards in the cities and towns in question had been gerrymandered to confer an advantage on the incumbents then in office, and whether, with the benefit of hindsight, any of them now wish that he had acted to prevent the gerrymandering that occurred in virtually every case where a San Bernardino County city or town adopted the by-district election model.
Similarly, the Sentinel inquired of each of them as to whether they believed the gerrymandering that took place undercut the reformist goal they individually and collectively were pursuing in pressing these municipalities to adopt by-district elections, and whether they anticipated that moving to by-district elections would result in a significant number of elections that would go uncontested. The Sentinel, as well, sought to press them on whether they considered that the circumstance in which 11 council races throughout the county are now going uncontested represents a diminution of the democratic process, and if they believe that a greater frequency of uncontested elections is a legitimate price that needs to be paid by the community to create the widespread regime of by-district voting and its hopefully consequent reduction in racially-polarized and ethnically-polarized voting.
Neither Shenkman, Grimes, Parris nor Barragan responded to those inquiries and they did not address the assertions of some San Bernardino County residents that in certain cases what the by-district changeover did is actually make the election of protected minority candidates less likely. The four lawyers did not deign to respond to whether they thought the reform they succeeded in effectuating achieved its goal.
In Chino Hills, the city council in 2017 considered a district map that had been drawn by the National Demographics Corporation, which was gerrymandered such that it placed the then-current five members of the council into five separate districts. Ultimately, however, the city council rejected that map in favor of the one drawn by city residents Brian Johsz and Richard Austin, a far more formulaic one that generally defied the categorization of gerrymandering and which put three of the incumbents in separate districts and created two other districts, including one in which none of the then-current council members resided and one in which two members were living.
Johsz was subsequently appointed to the Chino Hills City Council and then elected to represent District 4 in that city in the 2018 election. In that election, he defeated two Hispanic candidates, Gabriel U. DeLuna and Rosanna Mitchell-Arrieta, as well as a fourth candidate, Ronald Eaton. One of the rationales for having Chino Hills switch to a by-district voting system was that it would likely result in the election of Latinos or Latinas to the city council.
Johsz, unlike Shenkman, Grimes, Parris and Barragan, consented to addressing the issue of by-district elections.
“I am by no means a defender of districts,” Johsz said. “Our city had it imposed on us. I just happened to be a resident who saw an issue out there, and tried to find a solution as best we could.”