BILL ANALYSIS Ó AB 278 Page 1 Date of Hearing: April 29, 2015 ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT Brian Maienschein, Chair AB 278 (Roger Hernández) - As Amended April 13, 2015 SUBJECT: District-based municipal elections. SUMMARY: Requires general law cities with a population of 100,000 or more, as specified, to elect members of the city council by district, and establishes procedures that these cities must follow when creating city council districts. Specifically, this bill: 1)Requires the legislative body of a general law 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, AB 278 Page 2 b) By districts in four, six, or eight districts, with an elective mayor, as specified. 2)Requires a city that is establishing districts, pursuant to this bill, to conduct hearings, pursuant to the following requirements: a) Hold at least four public hearings over a period of at least 30 days prior to drawing a draft map of boundaries; b) 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; c) Publish a calendar of hearings at least seven days before the first hearing; d) Hold hearings consistent with the following: i) In locations that are accessible to people with disabilities; ii) To the greatest extent possible, in numerous locations to maximize community participation; AB 278 Page 3 iii) To the greatest extent possible, in locations accessible by public transportation; iv) 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. 3)Requires a city that is establishing districts, pursuant to this bill, to encourage public participation in the drawing of the boundaries of the districts for the legislative body by doing all of the following: a) Developing an outreach and education plan, and 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; b) For each hearing required by this bill, publicize at least one public service announcement using a media outlet that serves English-speaking individuals for purposes of AB 278 Page 4 informing individuals of the boundary-drawing process and the hearing date; c) For each hearing required by this bill, publicize 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 of that language, for purposes of informing individuals of the boundary-drawing process and the hearing date; d) Publish an Internet Web site (website) that explains the boundary-drawing process and its significance, that includes notice of the hearings, and that explains how public testimony may be submitted. The website must 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; e) Provide the means for the submission of public testimony by mail, by telephone, online, and in person at the hearings; and, f) 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. 4)Requires a city that is establishing districts, pursuant to AB 278 Page 5 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. 5)Requires a city that is establishing districts, pursuant to this bill, to ensure that all of the following criteria are satisfied in preparing the boundaries of the 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 AB 278 Page 6 political party. 6)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 the city in a publicly available log. 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, are exempt from this requirement. 7)Provides that the provisions of this bill do not apply to a charter city or charter city and county. 8)Makes corresponding changes. 9)Provides that, if the Commission on State Mandates determines that this bill contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to current law governing state mandated local costs. EXISTING LAW: 1)Permits a general law city that elects its councilmembers AB 278 Page 7 through at-large elections to provide for city council members to be elected by districts or from districts. 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. 2)Defines, for the purposes of 1), above, the following: a) "By districts" to mean the election of members by voters of the district alone; and, b) "From districts" to mean 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. 3)Prohibits, pursuant to the California Voting Rights Act of 2002 (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 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. 4)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 voters of the political subdivision. 5)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. 6)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. AB 278 Page 8 7)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. The districts must comply with specified provisions of the federal Voting Rights Act. The city council may 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. 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: This bill is keyed fiscal and contains a state-mandated local program. COMMENTS: AB 278 Page 9 1)Bill Summary. This bill requires general law cities with a population of 100,000 or more to elect members of the city council by district, and establishes procedures that these cities must follow when creating city council districts. These procedures are more detailed and extensive than the procedures that current law requires for cities that use district elections. Cities that would be subject to this bill's requirements would have to hold more hearings and would have to implement comprehensive public outreach and involvement measures before and during those hearings. This bill also imposes additional criteria for the drawing of district boundaries than current law requires. This bill is sponsored by the Mexican American Legal Defense and Education Fund. 2)Author's Statement. According to the author, "This bill creates a practice that is more transparent and inclusive for participation from community members. 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 board member to petition for help. "The current method of electing city council members at-large creates a system in which one community is empowered over the needs of others. City council members can, under this system of voting, come from only certain neighborhoods in the district. This outcome could potentially make the city council members out of touch and less aware of the needs of other parts of the community. Moreover, there are countless examples throughout the state that demonstrate another important weakness of at-large voting. AB 278 Page 10 "It is important to note the fact that at-large elections have been the subject of litigation across our state that challenges this election process as a violation of both the state and federal Voting Rights Act. Voters in numerous cities, including Anaheim, Compton, Palmdale and Watsonville have gone to court to discard the at-large system. Relief for communities will take a long time if we wait for the judicial system and will be costly as it is very expensive for cities in legal costs. AB 278 provides an opportunity to remedy this problem." 3)Background. The CVRA was enacted 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 usually votes for majority candidates rather than for minority candidates. In such situations, breaking up a jurisdiction into districts can result in districts in which a minority community can elect 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. The CVRA also allows a prevailing plaintiff to recover attorney's fees and litigation expenses to increase the likelihood that attorneys will be willing to bring challenges AB 278 Page 11 under the law. More than 140 local government bodies have transitioned from at-large to district-based elections since the enactment of the CVRA in 2002. 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. 4)Voter Approval and Waivers. 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. However, the State Board of Education (SBE) and the Board of Governors (BOG) of the California Community Colleges can waive the voter-approval requirement for school districts and community college districts. The SBE and the BOG have granted nearly 120 requests for waivers from the voter-approval requirement for school districts and community college districts that have sought to move to district-based elections for board members due to concerns about potential liability under the CVRA. There is no procedure in statute 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. However, in at least some cases, judges have approved settlements to CVRA lawsuits that allow the governing body to transition from at-large to district-based elections without voter approval. According to information compiled by the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, at least a dozen other local jurisdictions statewide AB 278 Page 12 have transitioned to electing governing board members by districts as a result of settlements to lawsuits brought under the CVRA. 5)General Law vs. Charter Cities. The California Constitution gives cities the ability to exercise greater control over municipal 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 would not apply to charter cities, but instead, would apply only to general law cities. This bill also contains an explicit exemption for charter cities. 6)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 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, AB 278 Page 13 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 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 district-based elections, in contravention of the settlement.) Based on current population growth rates, as estimated by the United States Census Bureau, four additional cities (Rialto, Clovis, Jurupa Valley, and Mission Viejo) likely would be covered by this bill following the 2020 census. The City of Escondido previously elected its council members using an at-large method of election, but it has agreed to transition to a district-based method of election for city council elections beginning this year, pursuant to a settlement reached in a lawsuit brought pursuant to the CVRA. The City of Moreno Valley was the only general law city in California with a population of at least 100,000 that elected city council members by districts prior to this year. 7)New Procedural Requirements. AB 1440 (Campos), Chapter 873, Statutes of 2014, required 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 before adopting those boundaries. This requirement will continue to apply to any city that changes from an at-large to a district-based election, 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 district-based elections, the hearing requirements of AB 1440 would apply. AB 278 Page 14 However, cities that are required to change from at-large to by-district elections, pursuant to this bill, would be subject to much more extensive procedural and hearing requirements than what is required under existing law. In addition to having to hold at least six public hearings before adopting district lines, cities forced to transition to district-based elections under this bill would face restrictions on the locations, dates and times of public hearings. Cities would have to develop extensive outreach and educational plans and media strategies and could be required to provide real-time translations of public hearings, potentially in multiple languages. Under this bill, cities also would have to meet 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 inclusive, and to ensure that cities do not undermine the voting rights of citizens when creating district lines. These requirements 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 AB 278 Page 15 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 3% 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. 8)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 district-based elections, or a date by which cities must begin conducting elections using the district-based method of election. The Committee may wish to consider an amendment to establish a reasonable timeline for cities to comply with the provisions of this bill. 9)Related Legislation. AB 277 (Roger Hernández) provides that the CVRA applies to charter cities, charter counties, and charter cities and counties. 10)Previous Legislation. AB 2715 (Roger Hernández) and AB 1383 (Roger Hernández) of 2014 would have cities with a population of 100,000 or more to elect city council members by district. AB 2715 was held in the Assembly Appropriations Committee and AB 1383 was held in the Senate Rules Committee. AB 278 Page 16 AB 1440 (Campos), Chapter 873, Statutes of 2014, required political subdivisions that change from an at-large method of election to a district-based election to hold public hearings, and required special districts to hold a public hearing before adjusting the boundaries of a division. SB 1365 (Padilla) of 2014, which was vetoed by the Governor, would have prohibited the use of a district-based election in a political subdivision, if it would impair the ability of a protected class to elect candidates of its choice or otherwise influence the outcome of an election as a result of the dilution or the abridgment of the rights of voters who are members of a protected class, and would have required a court to implement specified remedies. AB 1979 (R. 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 held in the Assembly Elections and Redistricting Committee. 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 held in the Assembly Appropriations Committee. AB 278 Page 17 11)State Mandate. This bill is keyed a state mandate, which means the state could be required to reimburse local agencies and school districts for implementing the bill's provisions if the Commission on State Mandates determines that the bill contains costs mandated by the state. 12)Arguments in Support. The sponsor of this bill, the Mexican American Legal Defense and Educational Fund, writes: "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. AB 278 Page 18 "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." 13)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 AB 278 Page 19 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." 14)Double-Referral. This bill was heard in the Elections and Redistricting Committee on March 25, 2015, where it passed with a 4-1 vote. REGISTERED SUPPORT / OPPOSITION: AB 278 Page 20 Support Mexican American Legal Defense and Education Fund [SPONSOR] California Immigrant Policy Center Opposition Californians for Electoral Reform Cities of Clovis, Temecula, and Thousand Oaks Howard Jarvis Taxpayers Association League of California Cities Southwest California Legislative Council Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958 AB 278 Page 21