BILL ANALYSIS Ó
AB 278
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Date of Hearing: March 25, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 278
(Roger Hernández) - As Amended March 18, 2015
SUBJECT: District-based municipal elections.
SUMMARY: Requires cities with a population of 100,000 or more,
as specified, to elect members of the city council by district.
Establishes procedures that these cities must follow when
creating city council districts. Specifically, this bill:
1)Requires the legislative body of a city with a population of
100,000 or more, as determined by the most recent federal
census, to adopt an ordinance, without submitting that
ordinance to the electors of the city for approval, that
provides for the members of the legislative body to be elected
by district. Requires the ordinance to provide for members of
the legislative body to be elected in one of the following
ways:
a) By districts, in five, seven, or nine districts; or,
b) By districts in four, six, or eight districts, with an
elective mayor, as specified.
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2)Requires a city that is establishing districts pursuant to
this bill to do all of the following as part of the process of
establishing districts:
a) Conduct hearings pursuant to the following requirements:
i) Hold at least four public hearings over a period of
at least 30 days prior to drawing a draft map of
boundaries;
ii) Hold at least two public hearings over a period of
at least 30 days after a draft map of boundaries has been
drawn and published, but before adopting a final map;
iii) Publish a calendar of hearings at least seven days
before the first hearing;
iv) Hold hearings consistent with the following:
(1) In locations that are accessible to people
with disabilities;
(2) To the greatest extent possible, in numerous
locations to maximize community participation;
(3) To the greatest extent possible, in locations
accessible by public transportation;
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(4) To the greatest extent possible, on different
days of the week and at varying times to maximize
community participation; and,
v) Provide simultaneous translation of a hearing held
pursuant to this bill, if requested at least 24 hours
before the hearing, in any language in which the city is
required to post translated copies of ballots at any
precinct in the city, pursuant to existing law.
b) Encourage public participation in the drawing of the
boundaries of the districts for the legislative body by
doing all of the following:
i) Developing an outreach and education plan, including
media and social media strategy, in partnership with
community organizations and individuals that advocate on
behalf of, or provide services to, non-English-speaking
individuals and individuals with disabilities;
ii) For each hearing required by this bill, publicizing
at least one public service announcement using a media
outlet that serves English-speaking individuals for
purposes of informing individuals of the boundary-drawing
process and the hearing date;
iii) For each hearing required by this bill, publicizing
at least one public service announcement in any language
in which the city is required to post translated copies
of ballots at any precinct in the city, pursuant to
existing law, using a media outlet that serves speakers
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of that language, for purposes of informing individuals
of the boundary-drawing process and the hearing date;
iv) Publishing an Internet Web site that explains the
boundary-drawing process and its significance, that
includes notice of the hearings, and that explains how
public testimony may be submitted. Requires the Internet
Web site to be available in each language in which the
city is required to post translated copies of ballots at
any precinct in the city, pursuant to existing law;
v) Providing the means for the submission of public
testimony by mail, by telephone, online, and in person at
the hearings; and,
vi) Conducting any other outreach or publicity the
legislative body determines will encourage public
participation in the drawing of the boundaries of the
districts for the legislative body.
3)Requires a city that is establishing districts pursuant to
this bill to establish and adjust the boundaries of those
districts in accordance with provisions of existing law
governing the adjustment of the boundaries of city council
districts, except as provided.
4)Requires a city council that is establishing districts
pursuant to this bill to ensure that all of the following
criteria are satisfied in preparing the boundaries of the
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districts for the city council:
a) The boundaries are drawn to ensure fair and effective
representation of all city residents including racial,
ethnic, and language minorities;
b) The boundaries conform to the requirements of the United
States Constitution and all applicable federal and state
laws;
c) The boundaries respect communities of interest;
d) The boundaries have substantially equal populations as
determined by the most recent federal decennial census;
e) The boundaries are geographically compact and
contiguous; and,
f) The boundaries are drawn without regard to the advantage
or disadvantage of incumbents, challengers, or any
political party.
5)Requires communications between any party and the city council
regarding the drawing of boundaries of the districts for the
city council to be disclosed to the public and maintained by
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the city in a publicly available log. Provides that
communications related to the dissemination of procedural
information about the drawing of boundaries of the districts
for the city council, including but not limited to,
communications regarding the time and place of meetings or how
to submit public testimony, need not be disclosed or
maintained in the log.
6)Makes corresponding changes.
EXISTING LAW:
1)Permits a general law city that elects its councilmembers
through at-large elections to provide for city council members
to be elected by districts or from districts. Provides that
such a change shall occur only upon the approval of voters of
a measure submitted to them by the city council or placed on
the ballot through the initiative process. Provides that the
term "by districts," for the purposes of this provision, means
the election of members by voters of the district alone;
provides that "from districts" means the election of members
who are residents of the districts from which they are
elected, but who are elected by voters of the city as a whole.
2)Prohibits, pursuant to the California Voting Rights Act of
2001 (CVRA), an at-large method of election from being imposed
or applied in a political subdivision (including a city) in a
manner that impairs the ability of a protected class of voters
to elect the 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.
3)Provides that a violation of the CVRA may be established if it
is shown that racially polarized voting occurs in elections
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for members of the governing body of the political subdivision
or in elections incorporating other electoral choices by the
voters of the political subdivision.
4)Requires a court, upon finding a violation of the CVRA, to
implement appropriate remedies, including the imposition of
district-based elections, which are tailored to remedy the
violation.
5)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.
6)Requires a general law city that elects councilmembers "by
districts" or "from districts" to adjust the boundaries of the
council districts following each decennial federal census so
that the districts are as nearly equal in population as may
be. Requires the districts to comply with specified
provisions of the federal Voting Rights Act. Permits the city
council to give consideration to the following factors when
establishing the boundaries of districts:
a) Topography;
b) Geography;
c) Cohesiveness, contiguity, integrity, and compactness of
territory; and,
d) Communities of interests of the districts.
7)Requires, in counties where the Secretary of State (SOS) has
determined it is appropriate, each precinct board to post at
least one copy of the ballot with ballot measures and ballot
instructions printed in Spanish. Provides that the ballot
shall also be posted in other languages if a significant and
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substantial need is found by the SOS. Provides that in
determining whether it is appropriate to require a county to
post a copy of the ballot at a precinct in a language other
than English, the SOS shall find a need to post such
translated copies of the ballot if the number of residents of
voting age in the precinct who are members of a single
language minority and who lack sufficient skills in English to
vote without assistance equals three percent or more of the
voting-age residents in the precinct.
8)Permits a city to provide for its own governance through the
adoption of a charter by a majority vote of its electors
voting on the question.
9)Permits a city charter to provide for the conduct of city
elections, including the manner in which, the method by which,
the times at which, and the terms for which municipal officers
are elected or appointed.
10)Provides that a legally adopted city charter supersedes all
laws inconsistent with that charter with respect to municipal
affairs.
FISCAL EFFECT: Unknown. State-mandated local program; contains
reimbursement direction.
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COMMENTS:
1)Purpose of the Bill: According to the author:
While the diversity of city councils across the State has
increased, evidence suggests that at-large based elections
unsuccessfully reflect minority representation in large
cities with sizeable minority populations. Currently,
minority groups make-up close to 60% of the population in
California. District-based elections offer several
benefits. Each geographic area is represented which helps
ensure an even distribution of city resources. While each
voter is represented by all city council members, each
voter has one specific council member to petition to for
help.
This method of disenfranchisement of communities is found
throughout the state, including in Antioch, Concord, Daly
City, Fontana, Oxnard, Rialto and West Covina.
AB 278 will create stronger accountability in city councils
for voters of the districts.
2)General Law Cities Only: The California Constitution gives
cities the ability to exercise greater control over municipal
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affairs through the adoption of a charter by a majority vote
of the city's electors voting on the question. Cities that
have not adopted charters are commonly referred to as "general
law" cities, because such cities are subject to the state's
general laws, regardless of whether those laws concern a
municipal affair.
The California Constitution grants charter cities the plenary
authority, subject only to restrictions contained in specified
provisions of the California Constitution, to provide for the
manner in which municipal officers are elected or appointed.
Because this bill seeks to regulate the manner in which
municipal officers are elected, the provisions of this bill
likely would not be applicable to charter cities, but instead
would apply to general law cities.
3)Cities Affected: According to the 2010 United States Census,
there are 66 cities in California with a population of at
least 100,000 residents. Of those 66 cities, 41 are charter
cities, and thus likely would not be affected by the
provisions of this bill.
Of the 25 general law cities in California with a population
of 100,000 or more, 22 (Antioch, Concord, Corona, Costa Mesa,
Daly City, El Monte, Fairfield, Fontana, Fremont, Fullerton,
Garden Grove, Murrieta, Norwalk, Ontario, Orange, Oxnard,
Rancho Cucamonga, Santa Clarita, Simi Valley, Temecula,
Thousand Oaks, and West Covina) elect city council members
at-large, and one (Elk Grove) elects city council members
at-large from districts. Those 23 cities would be required to
change their method of electing city council members under the
provisions of this bill. (The City of Santa Clarita has
reached a settlement agreement in a CVRA lawsuit, but that
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agreement calls on the city to use an alternative voting
method known as cumulative voting in an effort to address the
voting rights issues raised in the lawsuit. Because
cumulative voting would be conducted at-large in the city,
this bill would require the City of Santa Clarita to move to
by-district elections, notwithstanding the tentative
settlement. Additionally, two lawsuits brought under the CVRA
challenging Fullerton's at-large method of election for city
council members are pending.) Based on current population
growth rates, as estimated by the United States Census Bureau,
four additional cities (Clovis, Jurupa Valley, Mission Viejo,
and Rialto) likely would be covered by this bill following the
2020 census.
The cities of Escondido and Moreno Valley are the only general
law cities in California with a population of at least 100,000
that currently elect city council members by districts.
4)California Voting Rights Act of 2001: SB 976 (Polanco),
Chapter 129, Statutes of 2002, enacted the CVRA to address
racial block voting in at-large elections for local office in
California. In areas where racial block voting occurs, an
at-large method of election can dilute the voting rights of
minority communities if the majority typically votes to
support candidates that differ from the candidates who are
preferred by minority communities. In such situations,
breaking a jurisdiction up into districts can result in
districts in which a minority community can elect the
candidate of its choice or otherwise have the ability to
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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.
Prior to the enactment of the CVRA, concerns about racial
block voting led to the consideration of a number of bills
that sought to prohibit at-large voting in certain political
subdivisions (for instance, AB 2 (Chacon), of the 1989-90
regular session; AB 1002 (Chacon), of the 1991-92 regular
session; AB 2482 (Baca), of the 1993-94 regular session; and
AB 172 (Firebaugh), of the 1999-2000 regular session all
proposed to prohibit at-large elections in school districts
that met certain criteria; additionally, AB 8 (Cardenas) and
AB 1328 (Cardenas), both of the 1999-2000 regular session,
sought to eliminate the at-large election system within the
Los Angeles Community College District). None of these bills
became law-in many cases the bills were vetoed, while in other
cases, the bills failed to reach the Governor's desk. For
those bills that were vetoed, the veto messages typically
stated that the decision to create single-member districts was
best made at the local level, and not by the state.
The CVRA followed these unsuccessful efforts; rather than
prohibiting at-large elections in certain political
subdivisions, the CVRA instead established a policy that an
at-large method of election could not be imposed in situations
where it could be demonstrated that such a policy had the
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effect of impairing 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. The CVRA specifically provided
for a prevailing plaintiff party to have the ability to
recover attorney's fees and litigation expenses to increase
the likelihood that attorneys would be willing to bring
challenges under the law.
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 United States Supreme Court, which rejected the city's
appeal in October 2007. The legal uncertainty surrounding the
CVRA may have limited the impacts of that law in the first
five years after its passage.
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. Generally, local
government bodies must receive voter approval to move from an
at-large method of election to a district-based method of
election for selecting governing board members, though the
State Board of Education and the Board of Governors of the
California Community Colleges have the authority to waive the
voter-approval requirement for school districts and community
college districts, respectively. There is no procedure in law
for cities or special districts to receive a waiver for the
voter-approval requirement to move from at-large to
district-based elections if those governmental bodies have
concerns about liability under the CVRA. In at least some
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cases, however, judges have approved settlements to CVRA
lawsuits that allow the governing body to transition from
at-large to district-based elections without voter approval.
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.
5)State Mandates: By requiring certain cities to elect city
council members by districts, instead of at-large, this bill
would impose a state-mandated local program, for which the
state could be required to reimburse those cities for the
costs of transitioning from an at-large election system to a
district-based election system. On the other hand, political
subdivisions that transition from at-large to district-based
elections systems on their own, either as the result of a
legal challenge brought under the CVRA, or for other reasons,
must bear their own costs of changing election methods.
The last four state budgets have suspended various state
mandates as a mechanism for cost savings. Among the mandates
that were suspended were all existing elections-related
mandates. All the existing elections-related mandates have
been proposed for suspension again by the Governor in his
budget for the 2015-16 fiscal year. In light of this fact, and
given the fact that the CVRA provides a remedy to compel
jurisdictions to move from at-large to district-based
elections when at-large elections are impairing the ability of
a protected class of voters to influence the outcome of an
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election, the Committee may wish to consider whether it is
desirable to establish this new mandate when the Legislature
has voted to suspend the existing election mandates.
6)Procedural Requirements and Standards for Cities Transitioning
To District Elections: AB 1440 (Campos), Chapter 873,
Statutes of 2014, requires any political subdivision that is
switching from an at-large method of election to a
district-based method of election to hold at least two public
hearings on the proposed district boundaries prior to adopting
those boundaries. This requirement will continue to apply to
any city that transitions from at-large to district-based
elections, and that is not required to do so pursuant to this
bill. For example, if a charter city, or a general law city
with a population of less than 100,000, chooses to transition
from at-large to by-district elections, the hearing
requirements of AB 1440 would continue to apply.
Cities that are required to change from at-large to by-district
elections pursuant to this bill, however, would be subject to
much more extensive procedural and hearing requirements than
under existing law. In addition to being required to hold at
least six public hearings prior to adopting district lines,
cities forced to transition to by-district elections under
this bill would face restrictions on the locations, dates, and
times of public hearings; would be required to develop
extensive outreach and educational plans and media strategies,
potentially in multiple languages; could be required to
provide real-time translations of public hearings, potentially
in multiple languages; and would be required to comply with
criteria in creating district boundaries that differ from the
criteria that generally apply when local government entities
draw district lines. According to the author, these
requirements are intended to ensure that the process that
cities follow when creating district boundaries is open and
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inclusive, and to ensure that cities do not undermine the
voting rights of citizens when creating district lines.
These requirements, however, also will increase the cost to
cities that are required to transition from at-large elections
under this bill, and in turn, could increase the cost to the
state to reimburse those cities if this bill is found to
impose a reimbursable state mandate. Apart from the costs,
some of these requirements could impose significant logistical
burdens to cities that are required to comply. For example,
this bill requires cities, under certain circumstances, to
provide simultaneous translations of public hearings into
languages other than English and to conduct voter outreach and
education and media strategies in languages other than
English. Those requirements could apply if as little as three
percent of the voting age population of a single precinct in a
city with a population of 100,000 or more are limited-English
proficient and are members of a single language minority, even
if there are very few members of that language minority in the
city as a whole.
7)Operative Date: This bill does not contain an operative date,
a deadline by which cities with a population of 100,000 or
more must adopt an ordinance transitioning to by-district
elections, or a date by which cities must begin conducting
elections using the by-district method of election. The
committee and the author may wish to consider an amendment to
this bill to establish a reasonable timeline for cities to
comply with the provisions of this bill.
8)Arguments in Support: The sponsor of this bill, the Mexican
American Legal Defense and Educational Fund, writes:
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Minority representation is affected by the electoral
structure. California is now a minoritymajority state, but
number of minorities alone is no guarantee of political
influence. A lack of fair representation still exists in
cities with atlarge elections.
An atlarge method of electing a city council can result in
vote dilution for minority residents, impairing their
ability to elect candidates of choice or to influence the
outcome of City elections. In contrast, district based
elections can correct underrepresentation of minority
governing board members, decrease campaign costs, enhance
direct neighborhood representation, promote councilmember
accessibility and responsiveness, and increase voter
turnout.
The provisions of AB 278 that address the process for
drawing the lines of the new districts will enhance voter
engagement by providing meaningful access through hearings
at which community members will have the opportunity to
submit testimony regarding their neighborhoods and their
communities of interest - testimony that is crucial to the
design of districts that are representative of the
economic, racial, ethnic, educational, linguistic and
social diversity of the jurisdictions. The public will also
have the opportunity to review draft maps and submit
proposals of their own prior to adoption of the final maps.
The hearings will be held at times and in places designed
to maximize community input, as is the outreach that
precedes the hearings. Finally, language access and
transparency are built into the provisions regarding
process, and the districting criteria reflect this State's
interest in ensuring effective and fair representation on
local governing boards.
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9)Arguments in Opposition: In opposition to this bill, the
League of California Cities writes:
This measure is a sweeping and costly unfunded state
mandate. Impacted cities would have to hire consultants to
draft maps and analyze election patterns-with costs ranging
from $50,000 to $100,000 per city to draw various maps.
Attorneys with specialized expertise in the federal and
state election laws would need to be retained to advise and
protect cities from litigation over how district lines are
drawn.
Additionally, this bill is based around an arbitrary
population threshold and does not take into account that
the affected cities all have unique population and
geographic characteristics. In the event there is an issue
of vote dilution, the CVRA provides significant legal
leverage to any voter who seeks to challenge an at-large
election system of a city, school district, community
college district or any other district authorized by the
state. In fact, under the CVRA it is easier for plaintiffs
to bring and prevail in lawsuits alleging that their votes
are diluted in at-large elections.
In short, for those who prefer existing at-large election
systems to be closely examined for conformance with the
CVRA, existing law is robust and working. New mandates are
unnecessary.
10)Technical Amendment: Committee staff recommends the
following technical amendment to address a drafting error in
this bill:
On page 5, line 18, strike out "State" and insert: "States".
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11)Related Legislation: AB 277 (Roger Hernández), which is also
being heard in this committee today, expressly provides that
the CVRA applies to charter cities, charter counties, and
charter cities and counties.
12)Previous Legislation: This bill is similar to AB 2715 (Roger
Hernández) of 2014. AB 2715 was approved by this committee,
but was held on the Assembly Appropriations Committee's
suspense file.
AB 450 (Jones-Sawyer) of 2013 would have required the Los
Angeles Community College District to elect governing board
members by trustee area, instead of at-large. AB 450 was
approved by this committee on a 4-1 vote, but was held on the
Assembly Appropriations Committee's suspense file.
AB 1979 (Roger Hernández) of 2012 would have required the City
of West Covina to elect city council members by districts,
instead of at-large. AB 1979 was pulled by the author prior
to being heard in this committee.
13)Double-Referral: This bill has been double-referred to the
Assembly Committee on Local Government.
REGISTERED SUPPORT / OPPOSITION:
Support
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Mexican American Legal Defense and Educational Fund (sponsor)
Opposition
Californians for Electoral Reform (unless amended)
City Clerks Association of California
City of Murrieta
City of Norwalk
City of Temecula
Howard Jarvis Taxpayers Association
League of California Cities
Southwest California Legislative Council
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094
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