BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Alex Padilla, Chair
BILL NO: AB 280 HEARING DATE: 6/24/14
AUTHOR: ALEJO ANALYSIS BY: Darren Chesin
AMENDED: 6/18/14
FISCAL: YES
SUBJECT
Voting rights
DESCRIPTION
Existing law , pursuant to the federal Voting Rights Act of 1965
(VRA), 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 Section 5 of the VRA until the
change is approved by a specified federal authority. A state or
political subdivision is covered by the preclearance
requirements of the VRA if it maintained a specified test or
device as a prerequisite to voting, and had low voter
registration or turnout in the 1960's and early 1970's.
However, the United States Supreme Court on June 25, 2013 in
Shelby County v. Holder (2013) 133 S.Ct. 2612, held that the
coverage formula of the VRA 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 decision, the counties of Kings, Monterey, and
Yuba were covered jurisdictions subject to the federal
preclearance requirements.
Existing law allows a state or political subdivision covered by
the VRA to obtain an exemption from the preclearance
requirements if it satisfies specified criteria.
This bill would establish a state preclearance system. Under
this proposed 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 bill is enacted, the governing body of the political
subdivision would be required to submit the law, regulation, or
policy to the Secretary of State (SOS) for approval.
This bill would require the SOS to approve the law, regulation,
or policy only if specified conditions are met and provides that
the law, regulation, or policy shall not take effect or be
administered in the political subdivision until it is approved.
The governing body of the political subdivision may seek review
of the SOS's decision by means of an action filed in the
Superior Court of Sacramento. Specifically, this bill would
provide for all of the following:
Application to Political Subdivisions
This bill applies to political subdivisions with two or more
protected classes that each represent 20 percent of the citizen
voting-age population.
Definitions
"Citizen voting-age population" means the population of citizens
who are 18 years of age or older within a political subdivision,
as calculated by the United States Census Bureau in the most
recent federal decennial census.
"Electoral jurisdiction" means a geographic area within which
reside the voters who are qualified to vote for an elective
office.
"Multilingual voting materials" means registration or voting
notices, forms, instructions, assistance, or other materials or
information relating to the electoral process, including
ballots, provided in the language of one or more language
minority groups.
"Political subdivision" means a geographic area of
representation created for the provision of government services,
including, but not limited to, a city, a school district, a
community college district, or other district organized pursuant
to state law.
"Protected class" means a class of voters who are members of a
race, color, or language minority group, as this class is
referenced and defined in the federal Voting Rights Act of 1965
(42 U.S.C. Sec. 1971 et seq.).
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"Voting locations" means places for casting a ballot.
Affected Laws, Regulations, and Policies
This bill provides that to ensure that the right of citizens who
reside in California to vote is not denied or abridged on
account of race, color, or language minority status through the
enforcement of a voting-related law, regulation, or policy that
is enacted or administered after the enactment date of this
chapter, the following voting-related laws, regulations, and
policies shall be subject to preclearance by the SOS:
a.A change to an at-large method of election that adds offices
elected at-large or converts offices elected by single-member
districts to one or more at-large or multi-member districts.
b.A change to the boundaries of an electoral jurisdiction or a
series of changes within a year to the boundaries of an
electoral jurisdiction that reduces the size of the citizen
voting-age population of a protected class by 3 or more
percent.
c.A change through redistricting that alters the boundaries of
an electoral jurisdiction in which a protected class has
experienced a population increase of at least 10,000 citizens
or 20 percent of the citizen voting-age population over the
preceding decade, as determined by the five-year estimates of
the United States Census American Community Survey.
d.A change to voting locations that reduces, consolidates, or
relocates one or more voting locations, including an early,
absentee, or election-day voting location, and results in a
net loss, on a per voter basis, of voting locations in 20
percent of the total number of census tracts in a political
subdivision with the highest proportion of voters from a
protected class that represents at least 20 percent of the
citizen voting-age population in the political subdivision,
provided that the net loss is greater than the net loss
resulting from the changes in 20 percent of the total number
of census tracts in a political subdivision with the highest
proportion of voters of any other protected class that
represents at least 20 percent of the citizen voting-age
population in the political subdivision.
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e.A change to multilingual voting materials that reduces the
voting materials available in languages other than English, or
alters the manner in which the materials are provided or
distributed, if no similar reduction or alteration occurred in
materials provided in English.
Preclearance Procedures
a.The SOS must provide a written decision to the governing body
of the political subdivision within 60 days of a request to
enact or administer a covered voting-related law, regulation,
or policy. If the SOS fails to provide a written decision
within 60 days, the governing body of the political
subdivision may implement the law, regulation, or policy.
b.The governing body of the political subdivision may make a
written request for an expedited review of a law, regulation,
or policy if the political subdivision has a demonstrated need
to implement the proposed change before the end of the 60-day
review period. The written request shall describe the basis
for the request in light of conditions in the political
subdivision and shall specify the date by which a decision is
needed. The SOS shall attempt to accommodate a reasonable
request.
c.The governing body of the political subdivision shall have the
burden of establishing, by objective and compelling evidence,
that the law, regulation, or policy satisfies both of the
following:
Is not likely to result in a discriminatory effect on
the participation of voters from a protected class that
constitutes at least 20 percent of the political
subdivision's citizen voting-age population.
Is not motivated in whole or substantially in part by an
intent to reduce the participation of voters from a
protected class.
a.If the SOS denies a request to enact or administer a law,
regulation, or policy, the governing body of the political
subdivision may seek review of the decision by means of an
action filed in superior court. The SOS may file suit to
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enjoin the governing body of a political subdivision from
implementing a law, regulation, or policy in violation of this
section. Venue for such actions shall lie exclusively in the
Superior Court for the County of Sacramento.
b.The Attorney General, or a registered voter who resides in a
political subdivision where the change to a voting-related
law, regulation, or policy occurred, may file an action in
superior court to compel the political subdivision to satisfy
the requirements of this bill.
c.For purposes of this bill, any data provided by the United
States Census Bureau, whether based on enumeration or
statistical sampling, shall not be subject to challenge or
review by any court.
BACKGROUND
Voting Rights Act of 1965 and Shelby County v. Holder . The 15th
Amendment to the U.S. Constitution provides, in part, that
"[t]he right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any state on
account of race, color, or previous conditions of servitude."
Additionally, the 15th Amendment authorizes Congress to enact
legislation to enforce its provisions. The 15th Amendment was
ratified in February 1870.
In 1965, Congress determined that state officials were failing
to comply with the provisions of the 15th Amendment.
Congressional hearings found that litigation to eliminate
discriminatory practices was largely ineffective because state
and local jurisdictions would institute new discriminatory
practices to replace any such practices that were struck down in
court. As a result, Congress passed and President Johnson
signed the VRA. The VRA, among other provisions, prohibits any
"voting qualification or prerequisite to voting or standard,
practice, or procedure" from being imposed by any "State or
political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color."
Section 2 of the VRA is a nationwide prohibition against voting
practices and procedures, including redistricting plans and
at-large election systems, poll worker hiring, and voting
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registration procedures, that discriminate on the basis of race,
color, or membership in a language minority group. Section 2
allows the U.S. Attorney General (AG), as well as affected
private citizens, to bring lawsuits in federal court to
challenge practices that may violate the VRA. Section 4 of the
VRA sets the criteria for determining whether a jurisdiction is
covered under certain provisions of the VRA, including the
requirement for review of changes affecting voting under Section
5. Section 5 of the VRA requires certain states and covered
jurisdictions to receive approval for any changes to law and
practices affecting voting from the U.S. Department of Justice
(DOJ) or the U.S. District Court of the District of Columbia to
ensure that the changes do not have the purpose or effect of
"denying or abridging the right to vote on account of race or
color." The requirement to obtain approval under Section 5 is
commonly referred to as a "preclearance" requirement.
While much of the VRA is permanent, certain special provisions
of the VRA are temporary, including Section 5. When the VRA was
enacted, Section 5 was scheduled to expire in five years.
Subsequently, Congress extended those provisions for another
five years in 1970, an additional seven years in 1975, and an
additional 25 years in 1982, and again for an additional 25
years in 2006. As a result, Section 5 currently is scheduled to
expire in 2031.
In April 2010, Shelby County in Alabama filed suit in the U.S.
District Court for the District of Columbia challenging the
constitutionality of Section 5 of the VRA, and of the coverage
formulas contained in Section 4(b) of the VRA. Because the
State of Alabama was covered under the preclearance requirements
of Section 5, Shelby County was also covered as a political
subdivision of Alabama. In the lawsuit, Shelby County contends
that Congress exceeded its authority under the 15th Amendment
and thus violated the 10th Amendment and Article IV of the U.S.
Constitution when it voted to reauthorize Section 5 without
changing or updating the formulas that determined which
jurisdictions were covered under Section 5. The District Court
rejected Shelby County's arguments, and upheld the
constitutionality of the Section 5 reauthorization and the
coverage formulas contained in Section 4(b). On appeal, the
U.S. Court of Appeals for the District of Columbia Circuit
affirmed the ruling of the District Court, and Shelby County
subsequently appealed to the U.S. Supreme Court.
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On June 25, 2013, the U.S. Supreme Court, in Shelby County v.
Holder , held that the coverage formula in Section 4(b) of the
VRA is unconstitutional and can no longer be used as a basis for
subjecting jurisdictions to preclearance under Section 5 of the
VRA. The Court stated that although the formula was rational
and necessary at the time of its enactment, it is no longer
responsive to current conditions. The Court, however, did not
strike down Section 5, which contains the preclearance
conditions. Without Section 4(b), however, no jurisdiction will
be subject to Section 5 preclearance unless Congress enacts a
new coverage formula.
The effect of the Shelby County decision is that the
jurisdictions identified by the coverage formula in Section 4(b)
no longer need to seek preclearance from the U.S. AG or the U.S.
District Court for the District of Columbia before implementing
new voting changes, unless they are covered by a separate court
order entered under Section 3(c) of the VRA.
All or specific portions of the following states were required
to have their voting changes precleared before the U.S. Supreme
Court decision in Shelby : Alabama, Alaska, Arizona, Florida,
Georgia, Louisiana, Michigan, Mississippi, New Hampshire, New
York, North Carolina, South Carolina, South Dakota, Texas, and
Virginia. Also included were the California counties of Kings,
Monterey, and Yuba. Merced County previously was subject to the
preclearance requirement, but it successfully bailed out from
Section 5 coverage last year through a court approved consent
decree negotiated with the U.S. DOJ (the Yuba County Water
Agency has also successfully bailed out from Section 5
coverage).
According to the U.S. DOJ, the ruling in Shelby County does not
affect Section 3(c) of the VRA. Jurisdictions covered by a
preclearance requirement pursuant to court orders under Section
3(c) remain subject to the terms of those court orders.
Additionally, the Supreme Court's decision states that Section 2
of the VRA, which prohibits discrimination in voting based on
race or language minority status, and which applies on a
permanent nationwide basis, is unaffected by the decision.
Likewise, other provisions of the VRA that prohibit
discrimination in voting remain in full force and effect, as do
other federal laws that protect voting rights, including the
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Uniformed and Overseas Citizens Absentee Voting Act, the
National Voter Registration Act, and the Help America Vote Act.
Why were Kings, Merced, Monterey and Yuba Counties Included ?
Section 5 of the VRA was targeted primarily at jurisdictions
that had a history of racial discrimination in voting. However,
the four California counties were covered because of compliance
with certain state laws in effect at the time (including
English-only ballots) and less than 50% of eligible voters were
registered or voted for President. The counties failed to meet
the voter participation thresholds because of large military
populations who were treated as eligible to vote in the
counties.
Other States . According to the National Conference of State
Legislatures (NCSL), bills to propose a state-based system to
address the removal of federal preclearance requirements in the
wake of the Shelby decision have been proposed in New York and
Florida. A still-pending New York bill would allow the state, a
political subdivision or municipality seeking to change a voting
standard, practice or procedure to institute an action in court
for a declaratory judgment that finds the change will not result
in the denying or abridging of a certain person's right to vote.
In Florida, two companion bills would have created the Florida
Voting Rights Act, which would have required the
Attorney General or the attorney of a county or municipality to
petition the Supreme Court for a judgment within 30 days to
determine if any change to election procedures or voting
qualifications denied or abridged a certain person's right to
vote. If such a petition was filed, the bills would have
required the Supreme Court to produce a judgment within 45 days.
The Florida bills died in committee.
The American Community Survey . According to the U.S. Census
Bureau, the ACS is an ongoing survey that provides data every
year. The ACS asks about age, sex, race, family and
relationships, income and benefits, health insurance, education,
veteran status, and disabilities.
COMMENTS
1.According to the Author : Protecting the voting rights is
critical to ensuring a working democracy. Often entire
communities across the state are shut out of the important
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decision-making process that impacts their day-to-day lives.
Providing voter protections not only increases civic
participation, but ensures that communities have a fair say in
representation in all levels of government.
This bill seeks to expand voting rights protections by requiring
political subdivisions in which racial or ethnic groups
represent 20% or more of the citizen voting age population to
have specified changes to their voting laws or procedures
approved by California's Secretary of State before enactment-a
process otherwise known as "preclearance".
The preclearance provision of the Federal Voting Rights Act of
1965 (VRA), better known as Section 5, was the result of
realizing that attempting to block voter disenfranchisement on
a case-by-case basis was ineffective. The purpose of
preclearance was to block voter disenfranchisement before it
could occur. In spite of this, the Shelby County v. Holder
decision has discontinued Section 5 coverage and left
communities without effective voting rights protections.
In an effort to remedy the abrupt ending of Section 5 coverage
and ensure that the right to vote is not abridged or denied in
California, this bill requires California's Secretary of State
to approve any changes to at-large elections, jurisdiction
boundaries, redistricting, voting locations, and/or
multilingual voting materials in covered jurisdictions. In
doing so, this bill will eliminate the inordinate amount of
time and effort needed to pursue costly and repetitive
litigation.
2.Drafting Error ? This bill applies to political subdivisions
with two or more protected classes that each represents 20
percent of the citizen voting-age population. However, based
on information provided by the author, committee staff
believes that the author intended for this bill to instead
apply to political subdivisions in which two or more of any
racial or ethnic groups each represents 20 percent or more of
the citizen voting-age population. The difference is
significant in that the intended language would apply to a
much greater number of jurisdictions.
3.Which Political Subdivisions Are Included ? According to
census data, and assuming the author intended to include all
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political subdivisions in which two or more of any racial or
ethnic groups each represents 20 percent or more of the
citizen voting-age population (see comment #2, above), this
bill would apply to 38 counties, 482 cities, and approximately
1,000 school districts.
4.Opposition Arguments . In a June 18, 2014 letter in opposition
to AB 280, the California Association of Clerks and Election
Officials wrote, in part:
The legal protections afforded by the Voting Rights Act remain
in statute, along with remedies should the protections be
violated. As an Association, we are hopeful that the Federal
government will soon amend the provisions of the VRA struck
down by the Court, thereby restoring oversight of voting
practices in jurisdictions in which the voting rights of
minorities has been, is, or might be in jeopardy. While the
intent of AB 280 appears be an effort to bridge the gap
between now and then, some of the proposed changes requiring
preclearance would be administratively impossible.
The pre-clearance provisions of the Federal Voting Rights Act
were directed at jurisdictions with a history of suppressing
minority populations' voting rights and were never targeted at
jurisdictions based solely upon the presence of minority
populations as is done in this bill. AB 280, as amended,
arguably has little to do with the Federal Voting Rights Act
or the exercise of civil rights. The single, arbitrary
criterion of minority populations in excess 20% of a county's
population as the basis for determining that a county has a
pattern of discrimination and disenfranchisement of minority
populations is not accurate. Such a sweeping criterion for
subjecting local governments to state pre-clearance
misrepresents the efforts made by election officials across
the state to equitably administer elections.
Obtaining preclearance of changes to voting locations is an
example of only one of several mandates that is unachievable.
Current law provides that polling locations be established no
later than 29 days prior to an election and makes provision
for replacement of a site prior to the election should
unforeseen events render it unusable. It is challenging for
election officials to locate sufficient poll sites that meet
statutory requirements for location and accessibility.
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Preclearance of tens of thousands of the sites covered by this
bill would not be possible to achieve in a timely way.
Efforts to comply with this single requirement would require a
commitment of time, cost and personnel resources that could
jeopardize counties' abilities to conduct other election
duties. Furthermore, hindering or delaying the process of
replacing polling locations would infringe on the rights of
all voters not solely those of a minority.
Additionally, the proposed bill bases the formula for
determination that a voting location change is a covered
practice on census tract data within the political
subdivision. AB 2692 (stats. 2012) deleted the requirement
that tied precinct boundaries to census tracts.
Reestablishing this data in counties' information management
systems to comply with this mandate would require extensive
efforts and result in significant costs.
The mandates in this bill placing responsibility for
pre-clearing and policing counties by the Office of the
Secretary of State is impractical and extremely costly both in
the increased staffing that would be required and in
recruiting those who have the experience and qualifications to
make such determinations. The addition of another layer of
bureaucracy will dramatically increase the costs of elections
across the state and will negatively impact the voting
experience for all voters.
5.Related Legislation . The Legislature adopted Senate Joint
Resolution 14 (Yee), of 2013, which urged Congress and the
President of the United States to enact amendments to the VRA
that would restore Section 4 of the VRA with a new coverage
formula and update the entire VRA in order to address ongoing
violations of voting rights in the states.
PRIOR ACTION
This bill was completely rewritten in the Senate therefore the
Assembly votes are irrelevant to the current version.
POSITIONS
Sponsor: Mexican American Legal Defense and Education Fund
California Civil Rights Coalition
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Support: American Civil Liberties Union
Asian Americans Advancing Justice-Los Angeles
California Immigrant Policy Center
Chinese for Affirmative Action
Dolores Huerta Foundation
Equality California
Equal Justice Society
Japanese American Citizens League
Kings County Latino Round Table
Lawyers' Committee for Civil Rights
League of Women Voters of California
Richard Valle, Supervisor, Kings County
Tri-County Association of Latino Elected Officials
Oppose: California Association of Clerks and Election
Officials
County of Yuba, Board of Supervisors
Rural County Representatives of California
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