BILL ANALYSIS Ó
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: AB 278 Hearing Date: 7/7/15
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|Author: |Roger Hernández |
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|Version: |6/1/15 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Darren Chesin |
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Subject: District-based municipal elections
DIGEST
This bill requires general law cities with a population of
100,000 or more, as specified, to elect members of the city
council by district.
ANALYSIS
Existing law :
1)Permits a general law city that elects its councilmembers
through at-large elections to change the method by which
councilmembers are elected so that its city council members
are 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
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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
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.
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,
b) By districts in four, six, or eight districts, with an
elective mayor, as specified.
2)Requires a city council that is establishing districts
pursuant to this bill to satisfy the following criteria 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;
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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.
3)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. 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.
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
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
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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 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.
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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 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.
COMMENTS
1)According to the author : AB 278 will empower all communities
to elect their own voice, their own advocate, their own
council member. They can hold him or her accountable and in
turn decisions made by the council will more likely represent
the needs of all its residents. It is important to note the
fact that at-large elections have been the subject of
litigation across our state that challenges that election
process as a violation of the 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. It is important for local
governments to embrace district-based elections in order to
bring justice to their residents now, not when mandated by the
courts.
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In June of 2013, the U.S. Supreme Court declared certain
elements of the federal Voting Rights Act (VRA)
unconstitutional. This has increased use of the California
Voting Rights Act (CVRA) of 2001.
The CVRA prohibits at-large elections to be applied in a manner
that impairs the ability of a protected class to elect
candidates of its choice or its ability to influence the
outcome of an election.
Public officials may be elected by all of the voters of the
jurisdiction (at-large) or from districts formed within
political subdivision (district-based).
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)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 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
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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 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.
3)How Extensive is the Problem in these Cities ? An online
survey of the 23 cities affected by this bill indicated that
only four -- Concord, Costa Mesa, Fullerton, and Santa Clarita
- had city councils that did not include any ethnic minority
members. In fact, over half of the affected cities have
multiple council members who are ethnic minorities. As noted
above, Fullerton and Santa Clarita are already the subject of
CVRA lawsuits. While the author asserts that this bill is
also intended to ensure even geographic representation on the
affected city councils, neither Committee staff nor the
author's office was able to determine the extent of that
problem for the affected cities.
4)Is the CVRA a Better Approach ? This bill would force all the
23 aforementioned cities to replace their at-large city
council elections with district-based elections whether or not
they have a lack of ethnic or geographic representation.
Conversely, lawsuits filed under the CVRA target jurisdictions
where the plaintiffs perceive tangible problems to exist.
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While CVRA lawsuits can be expensive to pursue -- and
plaintiffs may have limited financial resources -- they
arguably provide a more surgical approach to addressing this
issue than the one provided for in this bill.
5)State Mandate . 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.
According to the Assembly Appropriations Committee, each city
would incur significant costs for city staff, as well as a
consulting contract to map the districts. Assuming average
costs in the range of $100,000 per city, total one-time costs
would be $2.2 million, which would be reimbursable
state-mandated General Fund costs. At least some cities will
also likely incur litigation costs, which cumulatively could
be significant, to the extent the proposed district boundaries
result in legal challenges.
The last five 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. 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 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)Double Referral . This bill is double-referred to the Senate
Governance and Finance Committee.
RELATED/PRIOR LEGISLATION
SB 493 (Cannella), which is pending in the Assembly, authorizes
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the legislative body of a city to adopt an ordinance that
requires members of the legislative body to be elected by
district or by district with an elective mayor without being
required to submit the ordinance to the voters for approval.
AB 277 (Roger Hernández), which is pending on the Senate floor
at the time this analysis was written, expressly provides that
the CVRA applies to charter cities, charter counties, and
charter cities and counties.
This bill is similar to AB 2715 (Roger Hernández of 2014). AB
2715 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 also
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 the Assembly Elections and Redistricting
Committee.
PRIOR ACTION
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|Assembly Floor: |43 - 32 |
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|Assembly Appropriations Committee: |12 - 0 |
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|Assembly Local Government Committee: | 5 - 1 |
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|Assembly Elections and Redistricting | 4 - 1 |
|Committee: | |
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POSITIONS
Sponsor: Mexican American Legal Defense and Educational Fund
Support: California Immigrant Policy Center
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Oppose: California Common Cause
Californians for Electoral Reform
City of Camarillo
City of Fremont
City of Murrieta
City of Norwalk
City of Rancho Cucamonga
City of Santa Clarita
City of Temecula
City of Thousand Oaks
City of Torrance
City of West Covina
Howard Jarvis Taxpayers Association
League of California Cities