BILL ANALYSIS Ó
AB 350
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Date of Hearing: January 13, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 350
(Alejo) - As Amended January 4, 2016
SUBJECT: California Voting Rights Act of 2001.
SUMMARY: Expands the California Voting Rights Act of 2001
(CVRA) to allow challenges to district-based elections to be
brought under the CVRA, as specified. Specifically, this bill:
1)Prohibits, pursuant to the CVRA, 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.
2)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, 2017, 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. Provides that this
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presumption applies only to the exact district-based election
system that was approved by the court.
3)Requires a court, upon finding that a political subdivision's
district-based elections violate this bill, to implement an
effective district-based election system that provides the
protected class the opportunity to elect candidates of its
choice from single-member districts. Permits the court, if it
is not possible to create a district plan in which the
protected class has the opportunity to elect candidates of its
choice without increasing the size of the governing body, or
if the additional districts alone will not provide an
appropriate remedy, to order additional remedies, including
any of the following:
a) Incrementally increasing the size of the governing body,
if approved by the voters in the jurisdiction;
b) Approving a single-member district-based election system
that provides the protected class the opportunity to join
in a coalition of two or more protected classes to elect
candidates of their choice if there is a demonstrated
political cohesion among the protected classes; or,
c) Issuing an injunction to delay an election.
4)States that the purpose of the Legislature in enacting this
bill is to address ongoing vote dilution and discrimination in
voting as matters of statewide concern, in order to enforce
the fundamental rights guaranteed to California voters under
specified provisions of the California Constitution. Requires
the provisions of this bill to be construed liberally in
furtherance of this legislative intent to eliminate minority
vote dilution. 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 bill is consistent with a specified court
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case.
5)Contains a severability clause.
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
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
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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.
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.
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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.
FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS:
1)Purpose of the Bill: According to the author:
AB 350 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 350 provides a non-exhaustive list of
remedies intended to provide guidance for courts and
local governing bodies considering possible remedial
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action.
2)Previous Legislation: AB 182 (Alejo) of 2015, which was
vetoed by Governor Brown on October 10, 2015, is substantially
similar to this bill. Furthermore, AB 182 is similar to SB
1365 (Padilla) of 2014, which was also vetoed by Governor
Brown. Governor Brown indicated in his veto messages for AB
182 and SB 1365 that he was vetoing those bills because he
believes that the VRA and the CVRA already provide safeguards
to protect the voting rights of minority communities. Staff
to the author of this bill indicates that the author's office
is "continu[ing] to have discussions with the Governor's
office on how to best address the concerns that led to the
veto of AB 182."
There are just two substantive differences between the current
version of this bill and the version of AB 182 that was vetoed
by the Governor. First, both this bill and AB 182 provide
limited legal protection to jurisdictions that have a
district-based election system imposed on them by a court as a
result of a proceeding brought under the current provisions of
the CVRA. In AB 182, that protection was available for
district-based election systems that were approved by a court
on or after January 1, 2016-the operative date of AB 182 if it
had been signed into law. This bill adjusts that date to
January 1, 2017, which will be the operative date of this bill
if it is signed into law.
Second, both this bill and AB 182 allow a court to impose
additional remedies when a violation is found if implementing
a district-based election system would not provide the
protected class of voters the opportunity to elect candidates
of its choice from single-member districts. Both bills
include a list of the types of additional remedies that the
court might consider, though neither bill limits the court to
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considering only those remedies that are listed. One of the
remedies listed in AB 182 is for the court to require
elections of the governing body of a political subdivision to
be held on the same day as a statewide election, as specified.
This bill does not include that potential remedy in the list
of additional remedies. However, since courts are not limited
to imposing remedies that are listed in the bill, the
exclusion of that remedy from the list may have little
practical effect. If a court determined that requiring a
local political subdivision's elections to be held on the same
day as statewide elections would be an effective remedy, it
appears that the court would still have the option of imposing
that remedy under this bill, notwithstanding the fact that
such a remedy is not explicitly listed in this bill.
Given the fact that the Governor has vetoed legislation that is
similar to this bill in each of the last two years, it is
unclear whether there is reason to believe that this bill will
receive more favorable consideration from the Governor.
Notwithstanding any ongoing discussions between the author's
office and the Governor's office, the differences between this
bill and AB 182 are relatively modest, and do not appear to
address the Governor's stated reason for vetoing either AB 182
or SB 1365. In fact, given the Governor's statement in the
veto message for AB 182 that state and federal law contain
"sufficient safeguards to ensure that the electoral strength
of minority voters is protected," it is unclear whether there
are any amendments that can be made to this bill to address
the Governor's concerns.
3)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,
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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 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
election 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:
a) The minority community was sufficiently concentrated
geographically that it was possible to create a district in
which the minority could elect its own candidate;
b) The minority community was politically cohesive, in that
minority voters usually supported minority candidates; and,
c) There was racially polarized voting among the majority
community, which usually (but not necessarily always),
voted for majority candidates rather than for minority
candidates.
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While plaintiffs must establish the three preconditions
outlined in Gingles in order to prevail in a challenge brought
under Section 2 of 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
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, at least 160
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.
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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
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implement a single-member district-based election system that
provides the protected class of voters the opportunity to
elect candidates of its choice. If it was not possible to
create such a plan without increasing the size of the
governing body, the court would be authorized to order
additional remedies. Although the remedies available to the
court in such a situation are not expressly limited, this bill
provides that appropriate remedies may include increasing the
size of the governing body if approved by the voters of the
jurisdiction, approving a single-member district-based
election system in which a coalition of two or more protected
classes that are politically cohesive can elect the candidates
of their choice, or issuing an injunction to delay an
election.
4)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
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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 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 Colombia 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
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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.
On June 25, 2013, the U.S. Supreme Court, in Shelby County v.
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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 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.
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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.
5)Arguments in Support: In support of this bill, Secretary of
State Alex Padilla writes:
Thirteen years ago, California took the lead in
protecting the voting rights of our diverse population
with passage of the California Voting Rights Act. The
Act sought to end the negative impact that at-large
elections have on voter turnout and equitable
representation.
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The result is that dozens of school districts,
community college districts and cities have moved or
are moving to district based elections. However, once
a local government adopts district based elections,
voters lose the protections of the California Voting
Rights Act.
Nothing in state law protects minority voters from
poorly drawn districts. Poorly drawn districts can
have the same negative impact on voter turnout and
equitable representation as at-large elections.
Dividing up minority populations or cramming them into
only one district can weaken their ability to even
influence an election. AB 350 will create a process,
building on the current California Voting Rights Act,
for the public to challenge poorly drawn district
elections.
6)Double-Referral: This bill has been double-referred to the
Assembly Judiciary Committee. Due to impending committee
deadlines, if this bill is approved in this committee today,
it would need to be heard in the Assembly Judiciary Committee
next week, absent a waiver of the Joint Rules. However, if
this bill is amended in committee today, that may prevent this
bill from being heard in the Assembly Judiciary Committee
before next week's deadline for committees to hear and report
two-year bills. In light of this fact, if it is the
committee's desire to approve this bill with amendments,
committee staff recommends that this bill be passed out of
committee with the author's commitment to take those
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amendments subsequent to passage by this committee.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union of California (co-sponsor)
Asian Americans Advancing Justice - Los Angeles (co-sponsor)
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area (co-sponsor)
League of Women Voters of California (co-sponsor)
California Common Cause
Secretary of State Alex Padilla
Opposition
None on file.
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Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094