Amended in Senate June 18, 2014

Amended in Senate May 28, 2014

Amended in Senate September 6, 2013

Amended in Senate June 17, 2013

Amended in Assembly May 15, 2013

Amended in Assembly April 11, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 280


Introduced by Assembly Member Alejo

begin insert

(Principal coauthor: Senator Padilla)

end insert

February 11, 2013


An act to add Chapter 5 (commencing with Section 400) to Division 0.5 of the Elections Code, relating to elections.

LEGISLATIVE COUNSEL’S DIGEST

AB 280, as amended, Alejo. Voting rightsbegin insert: preclearanceend insert.

Existing law, the federal Voting Rights Act of 1965, provides that a change in voting procedures may not take effect in a state or political subdivision that is covered by the preclearance requirements of the federal act until the change is approved by a specified federal authority. A state or political subdivision is covered by the preclearance requirements of the federal act if it maintained a specified test or device as a prerequisite to voting, and had low voter registration or turnout, in the 1960s and early 1970s. The federal act allows a state or political subdivision covered by the act to obtain an exemption from the preclearance requirements if it satisfies specified criteria. The United States Supreme Court has held that the coverage formula of the federal act is unconstitutional and may not be used as a basis for requiring a jurisdiction to subject a proposed change in voting procedures to federal preclearance. Prior to that holding, the Counties of Kings, Monterey, and Yuba were covered jurisdictions subject to the federal preclearance requirements.

begin delete

This bill would establish a state preclearance system applicable only to the Counties of Kings, Monterey, and Yuba. Under this system, if a county enacts or seeks to administer a voting qualification or prerequisite to voting, or a standard, practice, or procedure with respect to voting, that is different from that in force or effect on June 25, 2013, the county elections official would be required to submit the qualification, prerequisite, standard, practice, or procedure to the Attorney General for approval. This bill would require the Attorney General to approve the qualification, prerequisite, standard, practice, or procedure only if it neither has the purpose nor will have the effect of denying or abridging the right to vote on account of membership in a protected class, as defined. This bill would provide that the qualification, prerequisite, standard, practice, or procedure shall not take effect or be administered in the county until the county receives the approval of the Attorney General. The bill would allow the county to seek review of the Attorney General’s decision by means of an action filed in the Superior Court of Sacramento. The bill would allow a county to obtain an exemption from the state preclearance system if it satisfies specified criteria. The bill would repeal these provisions as of January 1, 2019. By requiring specified counties to seek approval of the Attorney General for changes to voting procedures, this bill would impose a state-mandated local program.

end delete
begin delete

This bill would make legislative findings and declarations as to the necessity of a special statute for the Counties of Kings, Monterey, and Yuba.

end delete
begin insert

This bill would establish a state preclearance system. Under this system, if a political subdivision enacts or seeks to administer a voting-related law, regulation, or policy, as specified, that is different from that in force or effect on the date this act is enacted, the governing body of the political subdivision would be required to submit the law, regulation, or policy to the Secretary of State for approval. The bill would require the Secretary of State to approve the law, regulation, or policy only if specified conditions are met. The bill would provide that the law, regulation, or policy shall not take effect or be administered in the political subdivision until the law, regulation, or policy is approved by the Secretary of State. The bill would allow the governing body of the political subdivision to seek review of the Secretary of State’s decision by means of an action filed in the Superior Court of Sacramento. By requiring local governments to seek approval of the Secretary of State for changes to voting procedures, this bill would impose a state-mandated local program.

end insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P3    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertChapter 5 (commencing with Section 400) is
2added to Division 0.5 of the end insert
begin insertElections Codeend insertbegin insert, to read:end insert

begin insert

3 

4Chapter  begin insert5.end insert State Preclearance
5

 

6

begin insert400.end insert  

For purposes of this chapter, the following terms have
7the following meanings:

8(a) “Citizen” means a citizen of the United States.

9(b) “Citizen voting-age population” means the population of
10citizens who are 18 years of age or older within a political
11subdivision, as calculated by the United States Census Bureau in
12the most recent federal decennial census.

13(c) “Electoral jurisdiction” means a geographic area within
14which reside the voters who are qualified to vote for an elective
15office.

16(c) “Multilingual voting materials” means registration or voting
17notices, forms, instructions, assistance, or other materials or
18information relating to the electoral process, including ballots,
19provided in the language of one or more language minority groups.

20(d) “Political subdivision” means a geographic area of
21representation created for the provision of government services,
P4    1including, but not limited to, a city, a school district, a community
2college district, or other district organized pursuant to state law.

3(e) “Protected class” means a class of voters who are members
4of a race, color, or language minority group, as this class is
5referenced and defined in the federal Voting Rights Act of 1965
6(42 U.S.C. Sec. 1971 et seq.).

7(f) “Voting locations” means places for casting a ballot.

8

begin insert401.end insert  

To ensure that the right of citizens who reside in California
9to vote is not denied or abridged on account of race, color, or
10language minority status through the enforcement of a
11voting-related law, regulation, or policy that is enacted or
12administered after the enactment date of this chapter, the following
13voting-related laws, regulations, and policies shall be subject to
14this chapter:

15(a) A change to an at-large method of election that adds offices
16elected at-large or converts offices elected by single-member
17districts to one or more at-large or multi-member districts.

18(b) A change to the boundaries of an electoral jurisdiction or
19a series of changes within a year to the boundaries of an electoral
20 jurisdiction that reduces the size of the citizen voting-age
21population of a protected class by 3 or more percent.

22(c) A change through redistricting that alters the boundaries of
23an electoral jurisdiction in which a protected class has experienced
24a population increase of at least 10,000 citizens or 20 percent of
25the citizen voting-age population over the preceding decade, as
26determined by the five-year estimates of the United States Census
27American Community Survey.

28(d) A change to voting locations that reduces, consolidates, or
29relocates one or more voting locations, including an early,
30absentee, or election-day voting location, and results in a net loss,
31on a per voter basis, of voting locations in 20 percent of the total
32number of census tracts in a political subdivision with the highest
33proportion of voters from a protected class that represents at least
3420 percent of the citizen voting-age population in the political
35subdivision, provided that the net loss is greater than the net loss
36resulting from the changes in 20 percent of the total number of
37census tracts in a political subdivision with the highest proportion
38of voters of any other protected class that represents at least 20
39percent of the citizen voting-age population in the political
40subdivision.

P5    1(e) A change to multilingual voting materials that reduces the
2voting materials available in languages other than English, or
3alters the manner in which the materials are provided or
4distributed, if no similar reduction or alteration occurred in
5materials provided in English.

6

begin insert402.end insert  

(a) If a political subdivision enacts or seeks to administer
7a voting-related law, regulation, or policy described in Section
8401 that is different from that in force or effect on the date the act
9adding this section is enacted, the governing body of the political
10subdivision shall submit the law, regulation, or policy to the
11Secretary of State for approval. The law, regulation, or policy
12shall not take effect or be administered in the political subdivision
13until the law, regulation, or policy is approved by the Secretary
14of State.

15(b) The Secretary of State shall provide a written decision to
16the governing body of the political subdivision within 60 days of
17a request to enact or administer a voting-related law, regulation,
18or policy described in Section 401. If the Secretary of State fails
19to provide a written decision within 60 days, the governing body
20of the political subdivision may implement the law, regulation, or
21policy. The governing body of the political subdivision may make
22a written request for an expedited review of a law, regulation, or
23policy if the political subdivision has a demonstrated need to
24implement the proposed change before the end of the 60-day review
25period. The written request shall describe the basis for the request
26in light of conditions in the political subdivision and shall specify
27the date by which a decision is needed. The Secretary of State shall
28attempt to accommodate a reasonable request.

29(c) The governing body of the political subdivision shall have
30the burden of establishing, by objective and compelling evidence,
31that the law, regulation, or policy satisfies both of the following:

32(1) Is not likely to result in a discriminatory effect on the
33participation of voters from a protected class that constitutes at
34least 20 percent of the political subdivision’s citizen voting-age
35population.

36(2) Is not motivated in whole or substantially in part by an intent
37to reduce the participation of voters from a protected class.

38(d) If the Secretary of State denies a request to enact or
39administer a law, regulation, or policy, the governing body of the
P6    1political subdivision may seek review of the decision by means of
2an action filed in superior court.

3(e) The Secretary of State may file suit to enjoin the governing
4body of a political subdivision from implementing a law,
5regulation, or policy in violation of this section.

6(f) Venue for an action filed pursuant to subdivision (d) or (e)
7shall lie exclusively in the Superior Court for the County of
8Sacramento.

9

begin insert403.end insert  

A political subdivision with two or more protected classes
10that each represent 20 percent of the citizen voting-age population
11shall not implement a previously enacted or adopted voting-related
12law, regulation, or policy described in Section 401 that has not
13yet been implemented, unless the law, regulation, or policy is
14approved pursuant to Section 402.

15

begin insert404.end insert  

(a) The Attorney General, or a registered voter who
16resides in a political subdivision where the change to a
17voting-related law, regulation, or policy occurred, may file an
18action in superior court to compel the political subdivision to
19satisfy the obligations set forth in this chapter.

20(b) In an action brought pursuant to this section, a court shall
21provide as a remedy that the voting-related law, regulation, or
22policy be enjoined unless the court determines that the law,
23regulation, or policy is not subject to this chapter or has been
24precleared by the procedures established in Section 402.

25

begin insert405.end insert  

For purposes of this chapter, any data provided by the
26United States Census Bureau, whether based on enumeration or
27statistical sampling, shall not be subject to challenge or review
28by any court.

end insert
29begin insert

begin insertSEC. 2.end insert  

end insert
begin insert

If the Commission on State Mandates determines that
30this act contains costs mandated by the state, reimbursement to
31local agencies and school districts for those costs shall be made
32pursuant to Part 7 (commencing with Section 17500) of Division
334 of Title 2 of the Government Code.

end insert
begin delete
34

SECTION 1.  

The Legislature finds and declares all of the
35following:

36(a) The United States Congress enacted the federal Voting
37Rights Act of 1965 (42 U.S.C. Sec. 1971 et seq.) to address the
38numerous obstacles and barriers that had been erected by many
39states and local governments to prevent the free exercise of the
P7    1right to vote and to participate on an equal basis in the electoral
2process by members of racial minorities.

3(b) Section 4 of the federal act provides a coverage formula
4identifying jurisdictions with histories of discriminatory voting
5practices. Under the coverage formula, a covered jurisdiction is a
6state or political subdivision that maintained a specified test or
7device as a prerequisite to voting, and had low voter registration
8or turnout, in the 1960s and early 1970s. Section 4 prohibits a
9covered jurisdiction from denying a person the right to vote because
10of his or her failure to comply with that test or device.

11(c) Section 5 of the federal act requires federal approval before
12a covered jurisdiction may enact or seek to administer any voting
13qualification or prerequisite to voting, or standard, practice, or
14procedure with respect to voting. This approval process is known
15as “preclearance.” A jurisdiction may obtain preclearance only by
16proving that the change has neither the purpose nor the effect of
17denying or abridging the right to vote on account of race or color.

18(d) In this state, the Counties of Kings, Monterey, and Yuba
19were each identified as a covered jurisdiction for purposes of
20federal preclearance, which required each county to receive federal
21approval for a proposed change to its voting procedures.

22(e) Sections 4 and 5 of the federal act have contributed to the
23immense progress in protecting and expanding the right to vote
24over the past few decades by ensuring that state and local election
25practices are just and fair.

26(f) Recently, in Shelby County v. Holder (2013) 133 S.Ct. 2612,
27the United States Supreme Court held that the coverage formula
28in Section 4 of the federal act is unconstitutional in violation of
29the Tenth Amendment to the United States Constitution and can
30no longer be used as a basis for requiring jurisdictions to subject
31proposed changes in voting procedures to federal preclearance.
32As a result, a covered jurisdiction will no longer be required to
33submit proposed changes to its voting procedures for federal
34preclearance, leaving states and political subdivisions that have
35histories of voter discrimination without safeguards to protect
36against discriminatory voting practices.

37(g) In an effort to remedy the abrupt ending to the federal
38preclearance safeguards against discriminatory voting practices,
39this bill establishes a state preclearance system, under which the
40 Counties of Kings, Monterey, and Yuba must receive the approval
P8    1of the state Attorney General before a change to voting procedures
2may take effect in that county.

3(h) It is the intent of the Legislature in enacting this act that the
4preclearance safeguards against discriminatory voting practices
5under the federal Voting Rights Act of 1965 (42 U.S.C. Sec. 1971
6et seq.) that existed before the ruling in Shelby County v. Holder
7remain in effect in the Counties of Kings, Monterey, and Yuba
8until the United States Congress updates the coverage formula of
9the federal act.

10(i) This act shall not be construed to suggest that a county shall
11not be subject to a federal preclearance system enacted at a future
12date if the county is able to obtain an exemption from the state
13preclearance system pursuant to this act.

14

SEC. 2.  

Chapter 5 (commencing with Section 400) is added
15to Division 0.5 of the Elections Code, to read:

16 

17Chapter  5. State Preclearance
18

 

19

400.  

This chapter applies only to Kings County, Monterey
20County, and Yuba County.

21

401.  

For purposes of this chapter, the following terms have the
22following meanings:

23(a) “Minority” means a person who is a member of a protected
24class.

25(b) “Protected class” means a class of voters who are members
26of a race, color, or language minority group, as this class is
27referenced and defined in the federal Voting Rights Act of 1965
28(42 U.S.C. Sec. 1971 et seq.).

29(c) “Test or device” means any requirement that a person as a
30prerequisite for voting, or registration for voting, demonstrate the
31ability to read, write, understand, or interpret any matter,
32demonstrate any educational achievement or his or her knowledge
33of any particular subject, possess good moral character, or prove
34his or her qualifications by the voucher of registered voters or
35members of any other class.

36

402.  

(a) If a county enacts or seeks to administer a voting
37qualification or prerequisite to voting, or a standard, practice, or
38procedure with respect to voting, that is different from that in force
39or effect on June 25, 2013, the county elections official shall submit
40the qualification, prerequisite, standard, practice, or procedure to
P9    1the Attorney General for approval. The Attorney General shall
2approve the qualification, prerequisite, standard, practice, or
3procedure only if it neither has the purpose nor will have the effect
4of denying or abridging the right to vote on account of membership
5in a protected class. The qualification, prerequisite, standard,
6practice, or procedure shall not take effect or be administered in
7the county until the county receives the approval of the Attorney
8General.

9(b) The Attorney General shall provide a written decision to the
10county within 60 days of a request to enact or administer a voting
11qualification or prerequisite to voting, or a standard, practice, or
12procedure with respect to voting. If the Attorney General fails to
13provide a written decision within 60 days, the county may
14implement the qualification, prerequisite, standard, practice, or
15procedure. A county may make a written request for an expedited
16review of the qualification, prerequisite, standard, practice, or
17procedure if the county has a demonstrated need to implement the
18proposed change before the end of the 60-day review period. The
19written request shall describe the basis for the request in light of
20conditions in the county and specify the date by which a decision
21is needed. The Attorney General shall attempt to accommodate a
22reasonable request.

23(c) The county shall have the burden of establishing, by
24objective and compelling evidence, that the qualification,
25prerequisite, standard, practice, or procedure has neither the
26purpose nor will have the effect of denying or abridging the right
27to vote on account of membership in a protected class.

28(d) If the Attorney General denies a request to enact or
29administer a qualification, prerequisite, standard, practice, or
30procedure, the county may seek review of the decision by means
31of an action filed in superior court.

32(e) The Attorney General may file suit to enjoin a county from
33implementing a qualification, prerequisite, standard, practice, or
34procedure in violation of this section.

35(f) Venue for an action filed pursuant to subdivision (d) or (e)
36shall lie exclusively in the Superior Court of the County of
37Sacramento.

38

403.  

(a) Section 401 shall not apply to a county that obtains
39a declaratory judgment pursuant to this section from the Superior
40Court of the County of Sacramento.

P10   1(b) To obtain a declaratory judgment pursuant to this section,
2a county shall demonstrate, by objective and compelling evidence,
3that during the 10 years preceding the filing of the action, and
4during the pendency of the action, the county has satisfied all of
5the following:

6(1) A test or device has not been used within the county for the
7purpose of, or with the effect of, denying or abridging the right to
8vote on account of membership in a protected class.

9(2) Any change by the county to a voting qualification or
10prerequisite to voting, or a standard, practice, or procedure with
11respect to voting, has been approved under Section 5 of the federal
12Voting Rights Act of 1965 (42 U.S.C. Sec. 1971 et seq.) or Section
13401 of this code before its implementation.

14(3) A change by the county affecting a voting qualification or
15prerequisite to voting, or a standard, practice, or procedure with
16respect to voting, has not been the subject of an injunction obtained
17by the United States Attorney General or the state Attorney General
18or a denial of a declaratory judgment under Section 5 of the federal
19Voting Rights Act of 1965 (42 U.S.C. Sec. 1971 et seq.) or this
20section.

21(4) There have been no judgments adverse to the county in
22lawsuits alleging voting discrimination on account of membership
23in a protected class.

24(5) There have been no consent decrees or settlement agreements
25that resulted in the abandonment by the county of a discriminatory
26voting practice on account of membership in a protected class.

27(6) There are no pending lawsuits against the county that allege
28voting discrimination on account of membership in a protected
29class.

30(7) Federal examiners or observers have not been assigned in
31the county under the federal Voting Rights Act of 1965 (42 U.S.C.
32Sec. 1971 et seq.).

33(8) There have been no violations by the county, as determined
34by a court of law, of the Constitution or federal, state, or local laws
35with respect to discrimination in voting on account of membership
36in a protected class, unless the county establishes that the violation
37was trivial, promptly corrected, and not repeated.

38 (9) Voting procedures and methods of election in the county
39that inhibit or dilute equal access to the electoral process have been
40eliminated.

P11   1(10) Constructive efforts have been made by the county to
2eliminate intimidation and harassment of persons seeking to register
3and vote, to expand opportunities for voter participation, including,
4but not limited to, opportunities for registration and voting, and
5to appoint minority officials throughout the county and at all levels
6and stages of the electoral process.

7(c) To assist the court in determining whether to issue a
8declaratory judgment under this section, the county shall present
9evidence of minority participation, including evidence of the levels
10of minority group registration and voting, changes in the levels
11over time, and disparities between minority-group and
12non-minority-group participation.

13(d) A county seeking a declaratory judgment under this section
14shall publicize the intended commencement and any proposed
15settlement of the action in the media serving the county and in the
16United States post offices located in the county.

17(e) A county seeking a declaratory judgment under this section
18shall establish that every city, town, school district, or other
19political subdivision within its boundaries has satisfied the
20requirements of this section.

21(f) Any aggrieved party may as of right intervene at any stage
22in an action under this section. An appeal from an action under
23this section shall be made directly to the California Supreme Court.

24(g) This section shall not prohibit the Attorney General from
25consenting to entry of a declaratory judgment if, based upon a
26showing of objective and compelling evidence by the county, and
27upon investigation, the Attorney General is satisfied that the county
28has complied with the requirements of this section.

29

404.  

This chapter shall remain in effect only until January 1,
302019, and as of that date is repealed.

31

SEC. 3.  

The Legislature finds and declares that a special law
32is necessary and that a general law cannot be made applicable
33within the meaning of Section 16 of Article IV of the California
34Constitution because of the history of discriminatory voting
35practices in the Counties of Kings, Monterey, and Yuba.

36

SEC. 4.  

If the Commission on State Mandates determines that
37this act contains costs mandated by the state, reimbursement to
38local agencies and school districts for those costs shall be made
39pursuant to Part 7 (commencing with Section 17500) of Division
404 of Title 2 of the Government Code.

end delete


O

    93