BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 2646
Author: Ting (D), et al.
Amended: 8/13/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-2, 6/24/14
AYES: Jackson, Corbett, Lara, Leno, Monning
NOES: Anderson, Vidak
ASSEMBLY FLOOR : 70-2, 5/15/14 - See last page for vote
SUBJECT : Civil rights: political structure equal protection
SOURCE : California Civil Rights Coalition
Mexican American Legal Defense and Educational Fund
DIGEST : This bill prohibits a statute, ordinance, or other
state or local rule, regulation, or enactment from denying a
minority group political structure equal protection of the law
by altering, restructuring, or reordering the policy
decisionmaking process in a manner that burdens the ability of
members of the minority group to effect the enactment of future
legislation, solely with respect to a matter that inures
primarily to the benefit of, or is primarily of interest to, one
or more minority groups. This bill provides that a statute,
ordinance, or other state or local rule, regulation, or
enactment shall be determined valid in an action brought
pursuant to this bill, only upon a showing by the government
that the burden imposed by the statute, ordinance, or other
state or local rule, regulation or enactment satisfies both of
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the following criteria: (1) the burden is necessary to serve a
compelling government interest; and (2) the burden is no greater
than necessary to serve the compelling government interest.
Senate Floor Amendments of 8/13/14 add a coauthor and clarify a
finding and declaration in the bill.
ANALYSIS : Existing federal law, the 14th Amendment to the
United States Constitution, provides that all persons born or
naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Existing law:
1.The California Constitution, provides that a person may not be
deprived of life, liberty, or property without due process of
law or denied equal protection of the laws; provided, that
nothing contained herein or elsewhere in this Constitution
imposes upon the State of California or any public entity,
board, or official any obligations or responsibilities which
exceed those imposed by the Equal Protection Clause of the
14th Amendment to the United States Constitution with respect
to the use of pupil school assignment or pupil transportation.
2.The California Constitution, prohibits the State from
discriminating against, or granting preferential treatment to,
any individual or group on the basis of race, sex, color,
ethnicity, or national origin in the operation of public
employment, public education, or public contracting, except as
specified.
Existing case law holds that the 14th Amendment does not
tolerate "a political structure that treats all individuals as
equals, yet more subtly distorts governmental processes in such
a way as to place special burdens on the ability of minority
groups to achieve beneficial legislation." (Washington v.
Seattle School Dist. No. 1 (1982) 458 U. S. 457, 467 (internal
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quotations omitted).) Such restructuring, "is no more
permissible than denying [the minority] the [right to] vote, on
an equal basis with others." (Hunter v. Erickson (1969) 393 U.
S. 385, 391.)
Existing case law provides that Section 31 of the California
Constitution "prohibits race- and gender-conscious programs the
federal equal protection clause permits but does not require.
As we explained in Hi-Voltage ? '[e]qual protection allows
discrimination and preferential treatment whenever a court
determines they are justified by a compelling state interest and
are narrowly tailored to address an identified remedial need.'
In contrast, "section 31 categorically prohibits discrimination
and preferential treatment. Its literal language admits no
'compelling state interest' exception [and] we find nothing to
suggest the voters intended to include one sub silentio.'
Section 31 poses no obstacle, however, to race- or
gender-conscious measures required by federal law or the federal
Constitution. This is the inescapable effect of the supremacy
clause (U.S. Const., art. VI, cl. 2), which section 31
implicitly acknowledges in a savings clause." (Coral
Construction Inc. v. City of San Francisco (2010) 50 Cal.4th
315, 327 (internal citations omitted).)
Existing case law holds that Section 31 does not violate the
political structure doctrine. (Id. at 329-330, holding that
"[n]othing in Hunter [?], or Seattle supports extending the
political structure doctrine to protect race- or gender-based
preferences that equal protection does not require.")
Existing case law provides that "'[a]s a matter of
'conventional' equal protection analysis, there is simply no
doubt that [section 31] is constitutional.' The clause provides
that '[n]o state shall ? deny to any person within its
jurisdiction the equal protection of the laws.' (U.S. Const.,
14th Amend., Sec. 1.) 'A core purpose' of the clause is to 'do
away with all governmentally imposed discrimination based on
race' [?],thus ultimately helping to create 'a political system
in which race no longer matters' [?]. To further this goal, the
clause renders racial classifications presumptively invalid,
regardless of purported motivation [?] and tolerates them only
when narrowly tailored to serve compelling governmental
interests [?]. Section 31 is consistent with equal protection,
under this analysis, because '[a] law that prohibits the State
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from classifying individuals by race or gender a fortiori does
not classify individuals by race or gender' [?] and because the
federal Constitution does not oblige the state to permit racial
classifications the federal Constitution itself does not
require. 'That the Constitution permits the rare race-based or
gender-based preference hardly implies that the state cannot ban
them altogether.'" (Id. at 327-328 (internal citations
omitted).)
This bill:
1.Provides that a statute, ordinance, or other state or local
rule, regulation, or enactment shall not deny a minority group
political structure equal protection of the law by altering,
restructuring, or reordering the policy decisionmaking process
in a manner that burdens the ability of members of the
minority group to effect the enactment of future legislation,
solely with respect to a matter that inures primarily to the
benefit of, or is primarily of interest to, one or more
minority groups. This bill also authorizes a member of a
minority group to bring a civil action challenging the
validity of a statute, ordinance, or other state or local
rule, regulation, or enactment, pursuant to this provision.
2.Provides that a statute, ordinance, or other state or local
rule, regulation, or enactment shall be determined valid in an
action brought pursuant to this section, only upon a showing
by the government that the burden imposed by the statute,
ordinance, or other state or local rule, regulation or
enactment satisfies both of the following criteria:
The burden is necessary to serve a compelling government
interest; and
The burden is no greater than necessary to serve the
compelling government interest.
1.Defines "minority group" to mean a group of persons who share
in common any race, ethnicity, nationality, or sexual
orientation.
2.Includes various findings and declarations.
Background
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The Equal Protection Clause of the 14th Amendment of the United
States Constitution provides that no state shall deny to any
person within its jurisdiction "the equal protection of the
laws." The clause requires that persons under like
circumstances be given equal protection and security in the
enjoyment of personal and civil rights, the acquisition and
enjoyment of property, the enforcement of contracts, and the
prevention and redress of wrongs, and that they be subject to
similar taxes and penalties. At the same time, federal equal
protection case law allows discrimination or preferential
treatment when a court has determined that it is justified by a
compelling state interest, and the discrimination or
preferential treatment is narrowly tailored to address that
interest. (8 Witkin Sum. Cal. Law Const. Law. Secs. 967 (citing
Coral Construction Inc. v. City of San Francisco (2010) 50
Cal.4th 315, 327) and 695.)
Of particular importance to this bill are three United States
Supreme Court cases covering a span of approximately 45 years.
The first of these is Hunter v. Erickson (1969) 393 U.S. 385,
wherein the Supreme Court declared unconstitutional an Akron,
Ohio initiative that was adopted by referendum to repeal open
housing laws and require voter approval of any such future laws
regulating real estate transactions "on the basis of race,
color, religion, national origin or ancestry" by a majority of
electors on the question at a regular or general election before
any such ordinance would be effective. (Id. at 389.) The Court
found that this was an "explicitly racial classification
treating racial housing matters differently than other racial
and housing matters" (as blacks, much more than whites, were
obviously harmed by creating obstacles to enactment of open
housing laws), and thereby invalidated the ordinance under the
14th Amendment. (Id.) The second of these is the case of
Washington v. Seattle School District No. 1 (1982) 458 U.S. 457,
where the Court, in the same vein, invalidated a Washington
initiative that provided that no school board could require any
student to attend a school other than the school geographically
nearest or next nearest the student's residence. The challenged
initiative thereby precluded students from being assigned for
the purposes of desegregation, and by purposefully frustrating
desegregation efforts, the initiative was held to be in
violation of the 14th Amendment. Even though the law nowhere
mentioned race and applied it in the same way to all races,
because "it uses the racial nature of an issue to define the
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governmental decision-making structure and thus imposes
substantial and unique burdens on racial minorities," the Court
found the ordinance to be a type of racial classification. (Id.
at 470.) Like in Hunter, the law "remove[d] the authority to
address a racial problem, and only a racial problem, from the
existing decision making body, in such a way as to burden
minority interest." (Id. at 474.) In both of these cases, and
others, the Court saw the initiatives as being motivated by
impermissible discriminatory purposes and therefore found denial
of equal protection.
As a result of the Hunter/Seattle cases, courts have come to
recognize a "political structure doctrine" (also referred to as
"political structure equal protection"). "The 'political
structure' doctrine that emerges from these decisions is perhaps
best summarized in the Seattle majority's statement that 'the
14th Amendment ? reaches 'a political structure that treats all
individuals as equals,' ? yet more subtly distorts governmental
processes in such a way as to place special burdens on the
ability of minority groups to achieve beneficial legislation.'"
(Coral Construction Inc. v. City of San Francisco (2010) 50
Cal.4th 315, 329.) As framed by some constitutional law
scholars, a person challenging a law under this doctrine (what
these scholars call the Hunter doctrine) must satisfy a two part
test: (1) she must show that the law in question is "racial" or
"racial in character" in that it singles out for special
treatment, issues that are particularly associated with racial
minority interests; and (2) she must show that the law imposes
an unfair political process burden by entrenching resolution of
such "racial matters" in a political process where minorities
are less able to succeed. Strict scrutiny is only triggered if
she (the challenger) satisfies both parts of this test. (Vikram
Amar and Evan Caminker, the Hunter Doctrine and Proposition 209:
A Reply to Thomas Wood (1997) 24 Hastings Const. Law Quarterly
1010, p. 1003.)
This doctrine has become a central basis for challenging
anti-affirmative action initiatives in recent cases before the
U.S. and the California supreme courts. One such case, and the
third case that is of particular importance to this bill, is the
case of Schuette v. Coalition to Defend Affirmative Action
(2014) 134 S.Ct. 1623 wherein a 2006 Michigan state
constitutional amendment prohibiting state universities from
considering race as part of its admissions process was
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challenged under the Equal Protection Clause, based upon the
political structure doctrine. In Schuette, a plurality opinion
of the U.S. Supreme Court held that the state amendment does not
violate the Constitution's Equal Protection Clause.
Likewise, the California Supreme Court has held that the
political structure doctrine does not invalidate state laws that
broadly prohibit discrimination and preferences based on race
and gender, including Proposition 209, which was challenged and
upheld by the court under the political structure doctrine in
the case of Coral Construction Inc. v. City of San Francisco
(2010) 50 Cal. 4th 315. In the case of Coral Construction Inc.
v. City of San Francisco, "the City argue[d] this doctrine
straightforwardly invalidates [Proposition 209] because that
provision uses the racial (or gender-based) nature of an issue
(i.e., preferences) to structure governmental decisionmaking, in
the sense that groups that seek race- or gender-based
preferences in public contracting, employment and education must
first overcome the obstacle of amending the state Constitution,
while groups that seek preferences on other bases (e.g.,
disability or veteran status) need not." The Coral court found
that "although superficially appealing, the City's argument is
not ultimately persuasive."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 8/13/14)
California Civil Rights Coalition (co-source)
Mexican American Legal Defense and Educational Fund (co-source)
Asian Americans Advancing Justice - Asian Law Caucus
Chinese for Affirmative Action
Dolores Huerta Foundation
Equal Justice Society
Legal Services for Prisoners with Children
NAACP San Diego Branch
NARAL Pro-Choice California
National Center for Lesbian Rights
ARGUMENTS IN SUPPORT : According to the author:
The equal protection clause of the California constitution
has been interpreted to protect Californians against
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discriminatory state action. This is the classic
interpretation of equal protection and should be
safeguarded. However, there are numerous forms of
discrimination minorities still face regarding policies
with a disparate impact. One such form is when a political
process is restructured such that it makes it more
difficult for a group to access rights after the
restructuring than it was before the change. This
sometimes occurs with voter initiatives as in the Hunter
[v. Erickson] case. Voters will pass an initiative that
changes the method in which that particular policy can be
altered in the future-often making it more burdensome for a
group to engage with the policy subsequent to the change.
For example, there may be an issue which is solidly within
the purview of the California [L]egislature and yet, voters
will take it upon themselves to place that issue in the
California Constitution making it much more onerous for
minority groups to further engage the issue. This was the
case in both Hunter v. Erickson and Washington v. Seattle
School District [No.1]. The United States Supreme Court,
recognizing that voter initiatives can seem facially
neutral and yet have an impact that clearly demonstrates
its discriminatory motivation, expanded equal protection to
include restructuring of the political process.
These types of voter initiatives also take place in
California and we want to protect minority groups, if not
by population numbers then by numbers in the electorate,
from the will of the people if that will is discriminatory.
We don't have to look too far to recall instances where the
electorate was either misled or society had not yet reached
a just or favorable perspective of a particular social
group and acted in a malicious manner when voting with
regard to the rights of that group. Indeed, on countless
occasions, California voters have enacted a law which was
subsequently found unconstitutional by the Court.
Thus, in enacting this bill, we further protect minorities
from discrimination as has been modeled by case law from
the United States Supreme Court on the federal level.
Anytime a powerful group can restructure a political
process, that policy will be subjected to strict scrutiny
to ensure its necessity outweighs the diminishing rights of
a protected class.
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ASSEMBLY FLOOR : 70-2, 5/15/14
AYES: Achadjian, Alejo, Ammiano, Bigelow, Bloom, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Chávez, Chesbro, Conway, Cooley, Dababneh,
Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Garcia,
Gatto, Gomez, Gonzalez, Gordon, Gray, Grove, Hagman, Hall,
Harkey, Roger Hernández, Holden, Jones-Sawyer, Levine, Linder,
Logue, Lowenthal, Maienschein, Medina, Melendez, Mullin,
Muratsuchi, Nazarian, Nestande, Olsen, Pan, Perea, John A.
Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Weber, Wieckowski, Williams, Yamada, Atkins
NOES: Donnelly, Wilk
NO VOTE RECORDED: Allen, Beth Gaines, Gorell, Jones, Mansoor,
Patterson, Waldron, Vacancy
AL:nl 8/14/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
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