BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                     AB 182


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          Date of Hearing:   May 5, 2015





                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 182  
          (Alejo) - As Amended April 29, 2015


          SUBJECT:  California Voting Rights Act of 2001


          KEY ISSUE:  SHOULD THE CALIFORNIA VOTING RIGHTS ACT BE EXPANDED  
          TO PERMIT CHALLENGES TO A DISTRICT-BASED ELECTION SYSTEM THAT  
          consistently DENIES VOTERS OF A PROTECTED CLASS THE ABILITY TO  
          ELECT A CANDIDATE OF THEIR CHOICE?


                                      SYNOPSIS


          The California Voting Rights Act (CVRA) of 2001 permits members  
          of a "protected class" to bring an action to challenge an  
          at-large election system that impairs the ability of the  
          protected class to elect candidates of its choice or influence  
          the outcome of an election.  (A "protected class" generally  
          means any racial, ethnic, or linguistic group that constitutes a  
          minority of a political subdivision.)  If a court finds that the  
          at-large election system did indeed abridge the voting rights of  
          members of the protected class, the court must implement  
          appropriate remedies, including the imposition of a  
          district-based election system.  When CVRA was enacted, it had  








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          already long been recognized that at-large elections, coupled  
          with polarized voting patterns, diluted the voting strength of  
          racial and ethnic minorities, because in such situations the  
          majority could effectively determine all members of the  
          governing body.  District-based elections, on the other hand,  
          allowed racial and ethnic minorities to elect at least some  
          members to the governing body.  But even a district-based system  
          can dilute minority voting power, depending upon how lines are  
          drawn, the geographical distribution of minority voters, and the  
          degree of racially polarized voting.  This bill, therefore,  
          would extend the reach of the CVRA to permit challenges to a  
          district-based election system if it can be shown that, due to  
          racially-polarized voting, the system impairs the ability of a  
          protected class to elect candidates of its choice.  As noted in  
          the analysis, this bill differs from CVRA in a number ways,  
          especially as to the remedies available to a court that finds a  
          voting rights violation.  The bill is co-sponsored by several  
          civil rights and civil liberties groups.  A similar measure was  
          vetoed by the Governor last year, and it is unclear whether the  
          relatively modest differences in this bill will yield a  
          different outcome this year.  The bill recently passed out of  
          the Assembly Elections and Redistricting Committee on a 5-2  
          vote.  There is no registered opposition to the bill. 


          SUMMARY:  Expands the California Voting Rights Act (CVRA) of  
          2001 to include challenges to district-based elections.   
          Specifically, this bill: 


          1)Prohibits 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  








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            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. 


          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.  If it is not possible to  
            create a district plan in which the protected class has the  
            opportunity to elect candidates of its choice, the court may  
            do any of the following: 


             a)   Increase the size of the governing body, if approved by  
               the voters in the jurisdiction.
             b)   Approve 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, as specified.


             c)   Require elections for members of the governing body of  
               the political subdivision to be held on the same day as a  
               statewide election.


             d)   Issue an injunction to delay an election.


          4)States that the purpose of the Legislature in enacting this  
            bill is to address ongoing voter dilution and discrimination  
            in voting as matters of statewide concern, in order to enforce  
            the fundamental rights guaranteed to California voters under  
            the California Constitution.  Requires the provisions of this  
            bill to be construed liberally in furtherance of this  








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            legislative intent.  Declares the intent of the Legislature  
            that any remedy implemented under this bill shall comply with  
            the 14th Amendment to the United States Constitution.  Finds  
            and declares that this act is consistent with a specified  
            court case.
          5)Contains a severability clause.


          EXISTING LAW:


          1)Provides, under the 14th Amendment of the U.S. Constitution,  
            that "[n]o 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."  (U.S. Const., 14th Amend.)


          2)Provides, under the 15th Amendment of the U.S. Constitution,  
            that "[t]he rights 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 condition or  
            servitude."  (U.S. Const., 15th Amend.)


          3)Provides, under the federal Voting Rights Act, that "[n]o  
            voting qualification or prerequisite to voting or standard,  
            practice, or procedure shall be imposed or applied by any  
            State or political subdivision in a manner which results in a  
            denial or abridgement of the right of any citizens of the  
            United States to vote on account of race or color, [or  
            language minority group.]"  (42 U.S.C. Sec. 1973 et seq.) 


          4)Provides, under the California Voting Rights Act (CVRA) of  
            2001, that an at-large election method may not impair the  
            ability of a protected class to elect candidates of its choice  








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            or to influence the outcome of an election, as a result of  
            dilution or abridgement of voter's rights.  (Elections Code  
            Section 14027.  Unless stated otherwise, all further  
            references are to that Code.)


          5)For purposes of the CVRA, defines "protected class" as a class  
            of voters who are members of a race, color, or language  
            minority group, consistent with the federal Voting Rights Act.  
             (Section 14026; see also 42 U.S.C. Sec. 1973 et seq.)


          6)Provides that an at-large method of election is conducted  
            when: (1) members of the governing body are elected by voters  
            of the entire jurisdiction; (2) candidates are required to  
            reside in an election district (a divisible part of the  
            political subdivision) and elected by voters of the entire  
            jurisdiction; or (3) an at-large election method is combined  
            with a district-based election.  (Section 14028.)


          7)Provides that a district-based method of election is conducted  
            when candidates are required to reside in an election district  
            (a divisible part of the political subdivision) and elected  
            only by voters residing within that election district.   
            (Section 14026.)


          8)Provides that a violation of the CVRA may be established if  
            racially polarized voting, as defined, occurs in an election  
            of members to the governing body of a political subdivision.   
            (Section 14028.)


          9)Provides that upon a violation of the CVRA, the court shall  
            implement appropriate remedies that are tailored to remediate  
            the violation, including the imposition of district-based  
            elections.  (Section 14029.)









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          10)Provides for reasonable attorney's fees and litigation  
            expenses for the prevailing plaintiff party.  Provides for  
            costs for the prevailing defendant only upon a frivolous or  
            unreasonable action.  (Section 14030.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  The California Voting Rights Act (CVRA) of 2001  
          permits a member of a "protected class" to legally challenge an  
          at-large election system if that system impairs the ability of  
          the protected class to elect candidates of its choice or  
          influence the outcome of an election.  (A "protected class"  
          means any racial, ethnic, or linguistic group that constitutes a  
          minority of a political subdivision.) When CVRA was enacted, it  
          had long been recognized that at-large elections, coupled with  
          racially polarized voting patterns, worked to the detriment of  
          racial and ethnic minorities.  In such situations, the majority  
          could elect all members of the governing body.  District-based  
          elections, on the other hand, allowed racial and ethnic  
          minorities to elect at least some members of the governing body.  
           In order to prevail in a CVRA action, the plaintiff must show  
          that racially polarized voting occurs in elections for members  
          of the jurisdiction's governing body.  Proving the existence of  
          racially polarized voting usually requires a statistical  
          analysis of past election results showing that members of the  
          protected class consistently vote differently than the rest of  
          the electorate.  A plaintiff bringing a CVRA challenge does not  
          need to prove that elected officials or anyone else intended to  
          discriminate against the protected class.  A system that results  
          in the dilution of voting rights of the protected class  
          constitutes a violation, regardless of intent. 


          If the court finds a violation of CVRA, it must impose remedies  
          appropriate to correct the violation.  Presumably, the most  








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          likely goal is to have the political subdivision shift from an  
          at-large election system to a district-based election system,  
          where members of the governing body reside in and represent a  
          particular district and are chosen by voters living in that  
          district.  However, this may not always be possible, especially  
          if members of the protected class are not sufficiently  
          concentrated in a geographical area such that they could  
          constitute a workable single-member district.  The existing CVRA  
          provides little guideline as to what other remedies should apply  
          in that case.  CVRA simply says that upon finding a violation,  
          "the court shall implement appropriate remedies, including the  
          imposition of district-based elections that are tailored to  
          remedy the situation."  (Election Code Section 14029.) 


          Differences Between this Bill and Existing CVRA.  AB 182 expands  
          the CVRA in two important ways.  First, it allows a plaintiff to  
          contest a district-based election method that impairs a  
          protected class from electing candidates of its choice, whereas  
          CVRA only permits a challenge to an at-large election.  Second,  
          the bill provides the court with a longer list of specific  
          remedies.  Under the existing CVRA, the only specific remedy  
          mentioned is for the court to order that an at-large election  
          district be replaced with a district-based system.  Under this  
          bill, however, the court would replace an election system that  
          is already district-based with an "effective" district-based  
          election system.  AB 182 does not provide any definition or  
          criteria for the court to use in order to determine what  
          constitutes an "effective" district-based election system, but  
          presumably an "effective" system would be one that cured the  
          violation.  Since a court cannot order an end to racially  
          polarized voting, it would presumably need to draw lines in such  
          a way as to permit members of the protected class to elect  
          candidates of its choice. 


          If an effective district-based election system is not possible -  
          for example, if the protected class is not sufficiently large or  
          concentrated to constitute a single-member district - AB 182  








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          permits the court to create a district that gives the protected  
          class the opportunity to join in a coalition of two or more  
          protected classes to elect candidates of their choice.  If  
          neither an effective district-based election system nor a  
          district-based coalition system is possible, the court may  
          implement other appropriate remedies, including but not limited  
          to: (1) increasing the size of the governing body; (2) issuing  
          an injunction to delay an election; (3) requiring an election to  
          be held on the same day as a statewide election so as to prevent  
          the skewing effects of low voter turn-out.  


          AB 182 also differs from the existing CVRA by narrowing,  
          somewhat, what constitutes a violation.  Under CVRA, as noted  
          above, a violation occurs if the at-large election system  
          impairs the ability of the protected class to elect candidates  
          of its choice or influence the outcome of an election.  In a  
          challenge to a district-based election under this bill, however,  
          it is a violation if the system prohibits the protected class  
          from electing a candidate of its choice, with no reference to  
          the ability of the protected class to "influence the outcome of  
          an election."   Although the exact import of this difference is  
          not entirely clear - in part because what it means to  
          "influence" the outcome of an election is not entirely clear -  
          the change appears to restrict the reach of this bill relative  
          to the existing CVRA.  Under this bill, a plaintiff must show  
          that the system prohibited the protected class from electing a  
          candidate of its choice; it would not be sufficient to show that  
          the system hampered the ability of a protected class to  
          "influence" an election.  The Committee is not entirely clear  
          why AB 182 departs from CVRA on this point by deleting the  
          reference to a group's ability to "influence" an election.   
          According to the author's office, it is apparently an effort to  
          address concerns raised by the Governor's office; however, it  
          should be noted the Governor's veto message on last year's bill  
          does not contain any reference to this issue.


          Court Role in Creating an Effective District-Based System  








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          Uncertain.  Neither existing case law nor this bill provides  
          much guidance on how a court would go about fashioning an  
          "effective" district-based system.  Although the CVRA has been  
          operative since 2002, the Committee is not aware of any case -  
          with the possible exception of a pending case in Palmdale -  
          where the court actually created new electoral district lines.   
          This is because few if any CVRA actions have reached the  
          ultimate stage of requiring the court to "implement appropriate  
          remedies."  Most if not all of the cases have been settled, with  
          the parties working out the details of a solution.  Nonetheless,  
          in theory, the remedy under CVRA is readily apparent: if the  
          violation is caused by the nature of the at-large election  
          system, then the remedy is to replace the at-large system with a  
          district-based system.  Determining the initial violation and  
          drawing lines for the new system will not be easy, but the  
          overall change required is fairly straightforward.  Under this  
          bill, however, a court will not be asked to replace an at-large  
          system with a district-based system; rather, it will be asked to  
          replace an existing district-based system with a more  
          "effective" district-based system.  Presumably a court would  
          have two choices: it could draw lines on its own, based on  
          whatever methodologies are available to it, or it could assign  
          the task to a commission that would use the same kinds of  
          criteria employed whenever a political subdivision draws new  
          lines in response to a new census. 


          Comparison of CVRA with Federal Voting Rights Act.  Under  
          existing law, a plaintiff alleging voter dilution may also bring  
          an action under Section 2 of the federal Voting Rights Act (VRA)  
          of 1965.  VRA was enacted to Congress pursuant to Section 2 of  
          the 15th Amendment of the U.S. Constitution.  The 15th Amendment  
          prohibits the denial or abridgment of a citizen's right to vote  
          on account of "race, color, or previous condition of servitude."  
            Section 2 of the 15th Amendment grants Congress the power to  
          enforce the 15th Amendment "by appropriate legislation."   
          Section 2 of the VRA - not to be confused with Section 2 of the  
          15th Amendment - prohibits any "voting qualification or  
          prerequisite to voting or standard, practice, or procedure"  








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          imposed by any State or political subdivision that "results in a  
          denial or abridgement of the right of any citizens of the United  
          States to vote on account of race or color, [or language  
          minority group.]"  In order to bring about new districts under  
          federal law the plaintiff must satisfy all of the so-called  
          "Gingles factors:" (1) the minority group is sufficiently large  
          and geographically compact to constitute a majority in a  
          single-member district; (2) the minority group is politically  
          cohesive; and (3) the white majority votes sufficiently as a  
          bloc to defeat the minority's preferred candidate.  (Thornburg  
          v. Gingles (1986) 478 U.S. 30.)  In contrast, California law  
          does not require the plaintiff to demonstrate that the minority  
          group is geographically compact before it finds a CVRA  
          violation, even though geographical compactness will be relevant  
          in developing a remedy.  


          If a court finds a violation of the VRA, the remedies under  
          federal law are similar to those under California law.  To begin  
          with, in fashioning remedies, a federal court relies heavily  
          upon state law.  The guiding principle of federal law is that  
          the remedy is commensurate with the right violated.  A court  
          applying federal law could require the political subdivision to  
          draw new lines, issue a stay, invalidate an election, invalidate  
          an at-large election method, impose cumulative voting, or  
          appoint a referee-administrator to oversee the election.  As  
          noted above, under the CVRA, the court "shall implement  
          appropriate remedies," including but not limited to replacing an  
          at-large system with a district-based system. Under AB 182, the  
          court could order an effective district-based election system or  
          allow the protected class to join with other protected classes  
          to form the majority of a single-member district.  If neither an  
          effective district-based election system nor a district-based  
          coalition system is possible, the court may implement other  
          appropriate remedies, such as increasing the size of the  
          governing body; issuing an injunction to delay an election;  
          requiring an election to be held on the same day as a statewide  
          election so as to prevent the skewing effects of low voter  
          turn-out.  In short, under federal law, existing California law,  








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          and under this bill the court has discretion to frame an  
          approach that cures the violation in a manner consistent with  
          existing state, federal, and constitutional law. 


          ARGUMENTS IN SUPPORT:  According to the one of the several  
          co-sponsors of this bill, the California Voting Rights Act of  
          2001 (CVRA) "was designed to safeguard the opportunity for  
          Latinos and other underrepresented groups to achieve fair  
          representation in local at-large election systems where the  
          electoral preferences of those protected groups are different  
          from those of other voters, and members of the protected groups  
          are denied an equal opportunity to elect the candidates of their  
          choice." The co-sponsors claim that "CVRA has played an  
          essential role in ensuring local government compliance with  
          state voting rights protections against unlawful vote dilution  
          in at-large election systems," and they believe that this  
          measure will "similarly protect the voting rights of citizens  
          casting ballots in certain district election systems."  Finally,  
          the co-sponsors add that the bill's protections will "apply in  
          localities where district lines divide underrepresented  
          neighborhoods in a manner that minimizes their voting strength,  
          and prevent cohesive underrepresented communities from electing  
          candidates of their choice."


          ARGUMENTS IN SUPPORT (If Amended): Californians for Electoral  
          Reform (CER) strongly support the aims of the bill but "would be  
          able to fully support AB 182" if it were amended.  Specifically,  
          CER would like to see the bill amended so as to recognize that  
          in some cases modified at-large election reforms may be more  
          effective than district-based systems.  Modified at-large  
          election reforms include "cumulative voting, limited voting, and  
          the single transferrable vote."  Thus, CER supports amending the  
          bill to make specific references to these types of reforms when  
          listing possible remedies available to the court when it is not  
          possible to create an effective district-based system. 










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          Pending Related Legislation:  AB 1301 (Jones-Sawyer) requires  
          local governments to submit specified changes to elections  
          policies and procedures to the Secretary of State for approval  
          before those changes could go into effect.  AB 1301 is loosely  
          modeled after the preclearance requirements in the VRA.  This  
          bill was approved by the Assembly Elections and Redistricting  
          Committee on a 4-2 vote and is pending in the Assembly  
          Appropriations Committee.


          AB 277 (Roger HernŠndez) specifies that CVRA applies to charter  
          cities, charter counties, and charter cities and counties.  This  
          bill was approved by the Assembly Elections and Redistricting  
          Committee on a 5-2 vote and is pending on the Assembly Floor.


          Previous Legislation:  SB 1365 (Padilla, 2014) was very similar  
          to this bill except, as noted above, it prohibited any system  
          that impaired the ability of a protected class to elect  
          candidates of its choice or influence the outcome of an  
          election. AB 182 only prohibits a system that impairs the  
          ability to elect a candidate of its choice.  In his veto message  
          on SB 1365, the Governor stated that the federal Voting Rights  
          Act and the California Voting Rights Act already provided  
          important safeguards to protect the voting strength of minority  
          communities from vote dilution.  


          REGISTERED SUPPORT / OPPOSITION:   

          Support 

          American Civil Liberties Union of California (co-sponsor)


          Asian Americans Advancing Justice-Los Angeles (co-sponsor)


          Lawyers' Committee for Civil Rights of the San Francisco Bay  








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          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


          Californians for Electoral Reform (If amended) 


          National Association of Social Workers, California Chapter


          Opposition 


          None on file 


          Analysis Prepared by:  Eric Dang and Thomas Clark/JUD/ 319-2334












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