BILL ANALYSIS Ó
AB 182
Page 1
Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 182
(Alejo, Bonta, and Roger Hernández) - As Amended April 9, 2015
SUBJECT: California Voting Rights Act of 2001.
SUMMARY: Expands the California Voting Rights Act of 2001
(CVRA) to allow challenges to district-based elections to be
brought under the CVRA, as specified. Specifically, this bill:
1)Prohibits, pursuant to the CVRA, district-based elections from
being imposed or applied in a manner that impairs the ability
of a protected class of voters to elect candidates of its
choice as the result of the dilution or abridgement of the
rights of voters who are members of a protected class.
2)Provides that the fact that a district-based election was
imposed on a political subdivision as a result of an action
filed pursuant to the CVRA shall not be a defense to an action
alleging that the district-based elections violate the
provisions of this bill. Provides that a court-ordered
district-based election system that is adopted on or after
January 1, 2016, as a result of an action filed pursuant to
the CVRA, shall be subject to a rebuttable presumption that
the system does not violate this bill. Provides that this
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presumption applies only to the exact district-based election
system that was approved by the court.
3)Requires a court, upon finding that a political subdivision's
district-based elections violate this bill, to implement an
effective district-based elections system that provides the
protected class the opportunity to elect candidates of its
choice from single-member districts. Permits the court, if it
is not possible to create a district plan in which the
protected class has the opportunity to elect candidates of its
choice without increasing the size of the governing body, or
if the additional districts alone will not provide an
appropriate remedy, to order additional remedies, including,
any of the following:
a) Incrementally increasing the size of the governing body,
if approved by the voters in the jurisdiction;
b) Approving a single-member district-based election system
that provides the protected class the opportunity to join
in a coalition of two protected classes to elect candidates
of their choice if there is a demonstrated political
cohesion among the protected classes;
c) Requiring elections for members of the governing body of
the political subdivision to be held on the same day as a
statewide election; or,
d) Issuing an injunction to delay an election.
4)States that the purpose of the Legislature in enacting this
bill is to address ongoing vote dilution and discrimination in
voting as matters of statewide concern, in order to enforce
the fundamental rights guaranteed to California voters under
specified provisions of the California Constitution. Requires
the provisions of this bill to be construed liberally in
furtherance of this legislative intent to eliminate minority
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vote dilution. Declares the intent of the Legislature that
any remedy implemented under this bill shall comply with the
14th Amendment to the United States Constitution.
5)Contains a severability clause.
EXISTING LAW:
1)Prohibits, pursuant to the CVRA, an at-large method of
election from being imposed or applied in a political
subdivision in a manner that impairs the ability of a
protected class of voters to elect a candidate of its choice
or its ability to influence the outcome of an election, as a
result of the dilution or the abridgement of the rights of
voters who are members of a protected class.
2)Defines "protected class," for the purposes of the CVRA, to
mean 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 (52 U.S.C. Sec. 10301
et seq.) (VRA).
3)Provides that a violation of the CVRA may be established if it
is shown that racially polarized voting occurs in elections
for members of the governing body of the political subdivision
or in elections incorporating other electoral choices by the
voters of the political subdivision. Provides that elections
conducted prior to the filing of an action are more probative
to establish the existence of racially polarized voting than
elections conducted after the filing of the action.
4)Provides that the occurrence of racially polarized voting
shall be determined from examining results of elections in
which at least one candidate is a member of a protected class
or elections involving ballot measures, or other electoral
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choices that affect the rights and privileges of members of a
protected class. Provides that one circumstance that may be
considered when determining whether a violation of the CVRA
exists is the extent to which candidates who are members of a
protected class and who are preferred by voters of the
protected class, as determined by an analysis of voting
behavior, have been elected to the governing body of a
political subdivision that is the subject of an action.
5)Provides that the fact that members of a protected class are
not geographically compact or concentrated may not preclude a
finding of racially polarized voting, but may be a factor in
determining an appropriate remedy.
6)Provides that proof of intent on the part of voters or elected
officials to discriminate against a protected class is not
required to find a violation of the CVRA.
7)Provides that other factors such as the history of
discrimination, the use of electoral devices or other voting
practices or procedures that may enhance the dilutive effects
of the election system, denial of access to those processes
determining which groups of candidates will receive financial
or other support in a given election, the extent to which
members of a protected class bear the effects of past
discrimination in areas such as education, employment, and
health, which hinder their ability to participate effectively
in the political process, and the use of overt or subtle
racial appeals in political campaigns are probative, but not
necessary factors to establish a violation of the CVRA.
8)Requires a court, upon finding that an at-large method of
election violates the CVRA, to implement appropriate remedies,
including the imposition of district-based elections, which
are tailored to remedy the violation.
9)Permits any voter who is a member of a protected class and who
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resides in a political subdivision where a violation of the
CVRA is alleged to file an action in the superior court of the
county in which the political subdivision is located.
10)Permits a prevailing plaintiff party in an action brought
pursuant to the CVRA to recover reasonable attorney's fees and
litigation expenses, including, but not limited to, expert
witness fees and expenses as part of the costs. Prohibits a
prevailing defendant party from recovering any costs unless
the court finds the action to be frivolous, unreasonable, or
without foundation.
FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS:
1)Purpose of the Bill: According to the author:
AB 182 will expand the California Voting Rights Act of
2001 to better protect minority communities across the
state. Voter disenfranchisement still persists today.
This measure is a means for us to protect voters from
being excluded and ensure that we have a working
democracy in California for years to come.
This bill will allow challenges to district-based
elections that are being imposed or applied in a
manner that impairs the ability of a protected class
of voters to elect candidates of their choice. In
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this context, the court may issue a range of remedies
all provided within the framework of a districted
system. AB 182 provides a non-exhausted list of
remedies intended to provide guidance for courts and
local governing bodies considering possible remedial
action.
2)California Voting Rights Act of 2001: SB 976 (Polanco),
Chapter 129, Statutes of 2002, enacted the CVRA to address
racial block voting in at-large elections for local office in
California. In areas where racial block voting occurs, an
at-large method of election can dilute the voting rights of
minority communities if the majority typically votes to
support candidates that differ from the candidates who are
preferred by minority communities. In such situations,
breaking a jurisdiction up into districts can result in
districts in which a minority community can elect the
candidate of its choice or otherwise have the ability to
influence the outcome of an election. Accordingly, the CVRA
prohibits an at-large method of election from being imposed or
applied in a political subdivision in a manner that impairs
the ability of a protected class of voters to elect the
candidate of its choice or to influence the outcome of an
election, as a result of the dilution or the abridgement of
the rights of voters who are members of the protected class.
At the time the CVRA was enacted, challenges to at-large
elections systems that diluted the voting strength of
protected classes of voters generally were brought under
Section 2 of the VRA. In Thornburg v. Gingles (1986) 478 U.S.
30, the U.S. Supreme Court announced three preconditions that
a plaintiff first must establish to prove that an election
system diluted the voting strength of a protected minority
group, in violation of Section 2 of the VRA:
a) The minority community was sufficiently concentrated
geographically that it was possible to create a district in
which the minority could elect its own candidate;
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b) The minority community was politically cohesive, in that
minority voters usually supported minority candidates; and,
c) There was racially polarized voting among the majority
community, which usually (but not necessarily always),
voted for majority candidates rather than for minority
candidates.
While plaintiffs must establish the three preconditions
outlined in Gingles in order to prevail in a challenge brought
under Section 2 of VRA, the CVRA was designed so that
plaintiffs would not need to establish that a minority
community was geographically concentrated in order to prevail.
Instead, the CVRA provides that the fact that members of a
protected class are not geographically compact or concentrated
"may be a factor in determining an appropriate remedy," but
"may not preclude a finding of racially polarized voting."
The first case brought under the CVRA was filed in 2004, and
the jurisdiction that was the target of that case-the City of
Modesto-challenged the constitutionality of the law.
Ultimately, the City of Modesto appealed that case all the way
to the U.S. Supreme Court, which rejected the city's appeal in
October 2007. The legal uncertainty surrounding the CVRA may
have limited the impacts of that law in the first five years
after its passage.
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Since the case in Modesto was resolved, however, many local
jurisdictions have converted or are in the process of
converting from an at-large method of election to
district-based elections due to the CVRA. In all, more than
140 local government bodies have transitioned from at-large to
district-based elections since the enactment of the CVRA.
While some jurisdictions did so in response to litigation or
threats of litigation, other jurisdictions proactively changed
election methods because they believed they could be
susceptible to a legal challenge under the CVRA, and they
wished to avoid the potential expense of litigation.
This bill expands the CVRA to permit challenges to be brought
to district-based election systems that impair the ability of
a protected class of voters to elect the candidates of its
choice, as a result of the dilution or the abridgement of the
rights of voters who are members of the protected class.
Challenges to district-based election systems under the CVRA
would be subject to the same standards and procedures that
currently apply to challenges to at-large election systems
that are brought under the CVRA. As is the case with
challenges to at-large election systems under the CVRA,
prevailing plaintiff parties that bring successful challenges
to district-based election systems under this bill would be
able to recover attorney's fees, including expert witness fees
and expenses. Prevailing defendant parties are not able to
recover costs, unless the court finds the action to be
frivolous, unreasonable, or without foundation.
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The primary difference between challenges brought under the
CVRA to at-large elections and challenges brought to
district-based elections under this bill are the remedies that
would be available when a court finds that a violation exists.
While existing law does not explicitly limit the remedies
that a court may consider in response to an at-large election
system that violates the CVRA, it does state that the
imposition of district-based elections may be an appropriate
remedy for such a violation. By contrast, if a district-based
election system were found to violate the CVRA under the
provisions of this bill, the court would be required to devise
a single-member district-based election system that provides
the protected class of voters the opportunity to elect
candidates of its choice from single-member districts. If a
plan cannot be created that would give the protected class the
opportunity to elect candidates of its choice, the court would
be allowed to consider other appropriate remedies, including
increasing the size of the governing body if approved by the
voters of the jurisdiction, creating a single-member
district-based election system in which a coalition of two
protected classes that are politically cohesive can elect the
candidates of their choice, requiring elections for the
governing board of the political subdivision to be held on the
same day as a statewide election, or issuing an injunction to
delay an election.
3)Federal Voting Rights Act of 1965 & 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
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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
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.
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Department of Justice (DOJ) or the U.S. District Court of the
District of Colombia 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 argued 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
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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.
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.
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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 in 2012
through a court approved consent decree negotiated with the
U.S. DOJ.
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 Uniformed and Overseas Citizens Absentee Voting Act, the
National Voter Registration Act, and the Help America Vote
Act.
4)Consolidation Issues and Los Angeles County: Existing law
requires all state, county, municipal, district, and school
district elections that are held on a statewide election date
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to be consolidated with the statewide election, except that
the Los Angeles County Board of Supervisors is allowed to deny
a request for consolidation of an election with the statewide
election if the voting system used by the county cannot
accommodate the additional election. This unique provision
allowing Los Angeles County to deny consolidation requests was
created through the passage of SB 693 (Robbins), Chapter 897,
Statutes of 1985, in response to attempts by a number of
cities in Los Angeles to move their municipal elections to the
same day as statewide elections. Los Angeles County sought
the ability to deny consolidation requests because its voting
system could accommodate only a limited number of contests at
each election, and the county was concerned that the move by
cities to hold their elections at the same time as the
statewide election would exceed the capacity of their voting
system. Los Angeles County still uses a variant of the voting
system that it used in 1985, though the county is currently in
the planning and design stage for developing and transitioning
to a new voting system. One of the principles that the county
has articulated to guide the development of its new voting
system is having a system that has "sufficient technical and
physical capacity to accommodate?consolidation of elections
with local districts and municipalities." That voting system,
however, may not be available for use countywide until 2020.
Because of the capacity limitations of Los Angeles County's
voting system, the county routinely has denied requests from
various local governmental bodies in the county that have
sought to hold their elections at the same time as-and to have
their elections consolidated with-statewide elections. Last
month, however, the Los Angeles County Board of Supervisors
voted to change its policy regarding requests for
consolidations of local elections with the statewide primary
or general election. Rather than routinely denying such
requests, under the new policy, the Board of Supervisors will
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consider approving requests by local government bodies to have
their elections consolidated with statewide elections on a
case-by-case basis. The board will consider approving such a
request from a local governmental body if an analysis
indicates that the ballots in the area of the county where the
governmental body is located have had sufficient capacity to
accommodate additional contests at previous statewide
elections.
This bill provides, as one potential remedy for a violation of
its provisions, that a court may order that a jurisdiction's
governing board elections be held on the same day as a
statewide election. A jurisdiction in Los Angeles County,
however, may not be able to receive approval for its election
to be consolidated with the statewide election until Los
Angeles County replaces its voting system. In that case, such
a court order could force a local jurisdiction in Los Angeles
County to hold its elections on the same day as a statewide
election, but not have that election be consolidated with the
statewide election. When two elections are held on the same
day, but are not consolidated, those elections are commonly
referred to as "concurrent" elections. When concurrent
elections are conducted, voters who are voting in both
elections have separate ballots for each election, and can
have separate polling locations for each election. As a
result, concurrent elections can cause voter confusion, and
otherwise can create challenges for voters, candidates, and
election officials. If a jurisdiction is required to hold
concurrent elections as a result of this bill, any benefit to
changing the election date may be limited.
5)Related Legislation: AB 1301 (Jones-Sawyer), which is also
being heard in this committee today, would require local
governments to submit specified changes to elections policies
and procedures to the Secretary of State for approval before
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those changes could go into effect. AB 1301 is loosely
modeled after the preclearance requirements in the VRA, as
outlined above.
AB 277 (Roger Hernández) provides that the CVRA applies to
charter cities, charter counties, and charter cities and
counties. AB 277 was approved by this committee on a 5-2 vote,
and is pending on the Assembly Floor.
6)Previous Legislation: This bill is similar to SB 1365
(Padilla) of 2014, which was vetoed by Governor Brown. In his
veto message, the Governor stated "[w]hile there is progress
to be made, the federal Voting Rights Act and the California
Voting Rights Act already provide important safeguards to
ensure that the voting strength of minority communities is not
diluted."
7)Double-Referral: This bill has been double-referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union of California (co-sponsor)
Asian Americans Advancing Justice-Los Angeles (co-sponsor)
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Lawyers' Committee for Civil Rights of the San Francisco Bay
Area (co-sponsor)
Mexican American Legal Defense and Educational Fund (co-sponsor)
National Association of Latino Elected and Appointed Officials
Educational Fund (co-sponsor)
Secretary of State Alex Padilla (co-sponsor)
California Common Cause
California Communities United Institute
California Immigrant Policy Center
National Association of Social Workers, California Chapter
Opposition
None on file.
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094
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