BILL ANALYSIS Ó
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: AB 182 Hearing Date: 6/16/15
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|Author: |Alejo |
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|Version: |4/29/15 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Darren Chesin |
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Subject: California Voting Rights Act of 2001
DIGEST
This bill expands the California Voting Rights Act of 2001
(CVRA) to allow challenges to district-based elections to be
brought under the CVRA, as specified.
ANALYSIS
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
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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
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.
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9)Permits any voter who is a member of a protected class and who
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.
This bill:
1)Expands the CVRA to include challenges to district-based
elections.
2)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.
3)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.
4)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:
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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.
5)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
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.
6)Contains a severability clause.
BACKGROUND
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
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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:
The minority community was sufficiently concentrated
geographically that it was possible to create a district in
which the minority could elect its own candidate;
The minority community was politically cohesive, in that
minority voters usually supported minority candidates; and,
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 the 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
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have limited the impacts of that law in the first five years
after its passage.
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.
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
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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.
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 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
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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. Department of
Justice (DOJ) or the U.S. District Court of the District of
Columbia 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 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.
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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.
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.
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COMMENTS
1)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 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.
Currently, the California Voting Rights Act only permits
challenges to at-large election systems, and allows the courts
during a challenge to order "appropriate remedies" to protect
the voting rights of a minority community. A court ordered
remedy may even include the imposition of district-based
elections. AB 182 will apply to already-existing
district-based elections systems where the districts are drawn
in a manner that impairs the ability of a protected class of
voters to elect candidates of their choice. In this context,
the court may issue a range of remedies all provided within
the framework of a districted system.
2)Consolidation Issues and Los Angeles County . Existing law
provides that requests to consolidate certain local elections
with statewide election dates shall be approved by the board
of supervisors unless the ballot style, voting equipment, or
computer capability is such that additional elections or
materials cannot be handled.
Los Angeles County sought the ability to deny consolidation
requests in SB 693 (Robbins, Chapter 897, Statutes of 1985),
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.
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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.
Recently, 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
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
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"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.
RELATED/PRIOR LEGISLATION
AB 1301 (Jones-Sawyer), which will be heard in this committee at
a later date, would require 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, as outlined above.
AB 277 (Roger Hernández), which is also before this committee
today, clarifies that the CVRA applies to charter cities,
charter counties, and charter cities and counties.
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."
PRIOR ACTION
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|Assembly Floor: |53 - 25 |
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|Assembly Judiciary Committee | 7 - 3 |
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|Assembly Elections and Redistricting | 5 - 2 |
|Committee: | |
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POSITIONS
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Sponsors:Mexican American Legal Defense and Educational Fund
Secretary of State Alex Padilla
American Civil Liberties Union of California
Asian Americans Advancing Justice
Lawyers' Committee for Civil Rights of the San
Francisco Bay Area
National Association of Latino Elected and Appointed
Officials
Support: Advancement Project
California Common Cause
California Communities United Institute
California Immigrant Policy Center
League of Women Voters of California
National Association of Social Workers, California
Chapter
Oppose: None received
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