BILL ANALYSIS                                                                                                                                                                                                    






                           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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