BILL ANALYSIS Ó
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 Hernández) 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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