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.). AB 280 (ALEJO) Page 2 "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. AB 280 (ALEJO) Page 3 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 AB 280 (ALEJO) Page 4 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 AB 280 (ALEJO) Page 5 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. AB 280 (ALEJO) Page 6 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 AB 280 (ALEJO) Page 7 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 AB 280 (ALEJO) Page 8 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 AB 280 (ALEJO) Page 9 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. AB 280 (ALEJO) Page 10 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 AB 280 (ALEJO) Page 11 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 AB 280 (ALEJO) Page 12