BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                     AB 182


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          Date of Hearing:   April 29, 2015


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          AB 182  
          (Alejo, Bonta, and Roger HernŠndez) - 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 HernŠndez) 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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