BILL ANALYSIS                                                                                                                                                                                                    ”



          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 HernŠndez), 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                    |
          |--------------------------------------+---------------------------|
          |Assembly Judiciary Committee          |  7 - 3                    |
          |--------------------------------------+---------------------------|
          |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
                                          
                                      -- END --