BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair AB 280 (Alejo) - Voting Rights: Preclearance Amended: June 18, 2014 Policy Vote: E&CA 3-1 Urgency: No Mandate: Yes Hearing Date: August 4, 2014 Consultant: Maureen Ortiz This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 280 provides that if a political subdivision enacts or seeks to administer a voting related law, regulation, or policy as specified, it must first obtain approval from the Secretary of State (SOS). Fiscal Impact: Approximately $2.1 million annually to the SOS (General Fund) Potential costs of $16.8 million after every U. S. Census to SOS (General Fund) Potentially tens of millions of dollars in state reimbursable mandate costs for county expenses - see below (General Fund) The Secretary of State's Office indicates the need for 7 PYs (5 attorney positions) to review the changes submitted for preclearance by local jurisdictions resulting in costs of about $2.1 million annually. Costs could be higher if the SOS were required to contract out for legal reviews during peak periods. In addition, the SOS would incur costs of approximately $1 million annually to conduct statistical analyses of an estimated 1,000 voting location changes per year assuming costs of $1,000 each. The U. S. Census triggers redistricting which would result in requests for preclearance of an estimated 3,362 districts that would require statistical analyses. Assuming a cost of $5,000 for a review of each district, costs every ten years would be an additional $16.8 million to the Secretary of State. AB 280 (Alejo) Page 1 The county elections officials have indicated significant reimbursable state mandate costs as follows: 1) up to $700,000 to link precincts to census lines; 2) up to $24 million to mail sample ballots first class if the polling places were not approved in sufficient time to use bulk postage rates; 3) up to $14 million in rush printing costs; 4) up to $3 million in administrative costs for submitting requests to SOS for approval; and 5) up to $2 million for other administrative expenses. Background: The federal Voting Rights Act (VRA) was enacted in 1965 and, among other provisions, prohibits any voting qualification or pre-requisite 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 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, 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. 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 AB 280 (Alejo) Page 2 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. All or specific portions of the following states were required to have their voting changes pre-cleared 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. These California counties were included 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. Proposed Law: AB 280 provides that if a political subdivision seeks to change any of the following voting related laws, regulations, or policies, it must first obtain approval from the Secretary of State: 1) 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. 2) 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. 3) 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. AB 280 (Alejo) Page 3 4) 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, as specified. 5) 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. AB 280 requires the Secretary of State to provide a written decision to the governing body of the political subdivision within 60 days of a request to enact or administer a voting-related law, regulation or policy described above; but allows implementation if the SOS does not meet the 60 day requirement. AB 280 also authorizes the political subdivision to make a written request for an expedited review if a need has been demonstrated to implement the proposed change before the end of the 60 day timeframe. The governing body of the political subdivision shall have the burden of establishing, by objective and compelling evidence, that the law, regulation or policy meets the following criteria: a) It 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. b) It is not motivated in whole or substantially in part by the intent to reduce the participation of voters from a protected class. AB 280 authorizes a political subdivision to seek a review of the decision by means filed in superior court if the Secretary of State denies a request; and authorizes the SOS to file suit AB 280 (Alejo) Page 4 to enjoin the governing body of a political subdivision from implementing a law, regulation, or policy in violation of this bill's provision. The venue for either of these actions will be exclusively in the Superior Court for the County of Sacramento. Additionally, this bill prohibits a political subdivision with two or more protected classes that each represent 20 percent of the citizen voting-age population from implementing a previously enacted or adopted voting-related law, regulation, or policy that has not yet been implemented unless it is approved by the Secretary of State. Staff Comments: AB 280 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". According to census data, this bill would apply to 38 counties, 482 cities, and approximately 1,000 school districts. According to the California Association of Clerks and Election Officials, obtaining pre-clearances of changes to voting locations as provided in AB 280 is unachievable. Current law provides that polling locations be established no later than 29 days prior to an election. Counties often face challenges to locate sufficient poll sites that meet statutory requirements for location and accessibility. Preclearance of tens of thousands of sites would not be achievable in a timely manner and would result in tremendous costs to cities, counties and districts.