BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 350


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          Date of Hearing:  January 19, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 350  
          (Alejo) - As Amended January 4, 2016


          SUBJECT:  California Voting Rights Act:  DISTRICT-BASED  
          ELECTIONS 


          KEY ISSUE:  SHOULD THE CALIFORNIA VOTING RIGHTS ACT BE EXPANDED  
          TO PERMIT CHALLENGES TO A DISTRICT-BASED ELECTION SYSTEM THAT  
          consistently DENIES VOTERS OF A PROTECTED CLASS THE ABILITY TO  
          ELECT A CANDIDATE OF THEIR CHOICE?


                                      SYNOPSIS


          The California Voting Rights Act of 2001 (CVRA) permits members  
          of a "protected class" to bring an action to challenge an  
          at-large election system that impairs the ability of the  
          protected class to elect candidates of its choice or influence  
          the outcome of an election.  (A "protected class" generally  
          means any racial, ethnic, or linguistic group that constitutes a  
          minority of a political subdivision.)  If a court finds that the  
          at-large election system did indeed abridge the voting rights of  
          members of the protected class, the court must implement  
          appropriate remedies, including the imposition of a  
          district-based election system.  When the CVRA was enacted, it  
          had already long been recognized that at-large elections,  
          coupled with polarized voting patterns, diluted the voting  








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          strength of racial and ethnic minorities, because in such  
          situations the majority could effectively determine all members  
          of the governing body.  District-based elections, on the other  
          hand, allowed racial and ethnic minorities to elect at least  
          some members to the governing body.  But even a district-based  
          system can dilute minority voting power, depending upon how  
          lines are drawn, the geographical distribution of minority  
          voters, and the degree of racially polarized voting.  


          This bill, therefore, would extend the reach of the CVRA to  
          permit challenges to a district-based election system if it can  
          be shown that, due to racially-polarized voting, the system  
          impairs the ability of a protected class to elect candidates of  
          its choice.  As noted in the analysis, this bill differs from  
          CVRA in a number ways, especially as to the remedies available  
          to a court that finds a voting rights violation.  Two similar  
          measures were vetoed by the Governor last year and the year  
          before, and it is unclear whether the relatively modest  
          differences in this bill will yield a different outcome this  
          year.  This bill is sponsored by a broad coalition of civil  
          rights groups, including the American Civil Liberties Union,  
          Asian Americans Advancing Justice, League of Women Voters and  
          the Mexican American Legal Defense and Educational Fund.  The  
          bill passed out of the Assembly Elections and Redistricting  
          Committee last week on a 4-2 vote.  There is no reported  
          opposition to the bill. 


          SUMMARY:  Expands the California Voting Rights Act of 2001  
          (CVRA) to include challenges to district-based elections.   
          Specifically, this bill: 


          1)Prohibits district-based elections from being imposed or  
            applied in a manner that impairs the ability of a protected  
            class of voters to elect candidates of its choice as the  
            result of the dilution or abridgement of the rights of voters  
            who are members of a protected class.  








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          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, as specified. 


          3)Requires a court, upon finding that a political subdivision's  
            district-based elections violate this bill, to implement an  
            effective district-based elections system that provides the  
            protected class the opportunity to elect candidates of its  
            choice from single-member districts.  If it is not possible to  
            create a district plan in which the protected class has the  
            opportunity to elect candidates of its choice, the court may  
            do any of the following: 


             a)   Increase the size of the governing body, if approved by  
               the voters in the jurisdiction.
             b)   Approve a single-member district-based election system  
               that provides the protected class the opportunity to join  
               in a coalition of two or more protected classes to elect  
               candidates of their choice, as specified.


             c)   Issue an injunction to delay an election.


          4)Provides for reasonable attorney's fees for the prevailing  
            plaintiff party.  The prevailing defendant may only recover  
            costs for a frivolous or unreasonable action. 


          5)Contains a severability clause.









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          6)States that the purpose of the Legislature in enacting this  
            bill is to address ongoing voter dilution and discrimination  
            in voting as matters of statewide concern, in order to enforce  
            the fundamental rights guaranteed to California voters under  
            the California Constitution.  Requires the provisions of this  
            bill to be construed liberally in furtherance of this  
            legislative intent.  Declares the intent of the Legislature  
            that any remedy implemented under this bill shall comply with  
            the 14th Amendment to the United States Constitution.  Finds  
            and declares that this act is consistent with a specified  
            court case.


          EXISTING LAW:


          1)Provides, under the 14th Amendment of the U.S. Constitution,  
            that "[n]o state shall make or enforce any law which shall  
            abridge the privileges or immunities of citizens of the United  
            States; nor shall any state deprive any person of life,  
            liberty, or property, without due process of law; nor deny to  
            any person within its jurisdiction the equal protection of the  
            laws."  (U.S. Const., 14th Amend.)
          2)Provides, under the 15th Amendment of the U.S. Constitution,  
            that "[t]he rights 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 condition or  
            servitude."  (U.S. Const., 15th Amend.)


          3)Provides, under the federal Voting Rights Act, that "[n]o  
            voting qualification or prerequisite to voting or standard,  
            practice, or procedure shall be imposed or applied by any  
            State or political subdivision in a manner which results in a  
            denial or abridgement of the right of any citizens of the  
            United States to vote on account of race or color, [or  
            language minority group.]"  (42 U.S.C. Sec. 1973 et seq.) 









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          4)Provides, under the CVRA, that an at-large election method may  
            not impair the ability of a protected class to elect  
            candidates of its choice or to influence the outcome of an  
            election, as a result of dilution or abridgement of voter's  
            rights.  (Elections Code Section 14027.  Unless stated  
            otherwise, all further references are to that Code.)


          5)For purposes of the CVRA, defines "protected class" as a class  
            of voters who are members of a race, color, or language  
            minority group, consistent with the federal Voting Rights Act.  
             (Section 14026; see also 42 U.S.C. Sec. 1973 et seq.)


          6)Provides that an at-large method of election is conducted  
            when: (1) members of the governing body are elected by voters  
            of the entire jurisdiction; (2) candidates are required to  
            reside in an election district (a divisible part of the  
            political subdivision) and elected by voters of the entire  
            jurisdiction; or (3) an at-large election method is combined  
            with a district-based election.  (Section 14028.)


          7)Provides that a district-based method of election is conducted  
            when candidates are required to reside in an election district  
            (a divisible part of the political subdivision) and elected  
            only by voters residing within that election district.   
            (Section 14026.)


          8)Provides that a violation of the CVRA may be established if  
            racially polarized voting, as defined, occurs in an election  
            of members to the governing body of a political subdivision.   
            (Section 14028.)


          9)Provides that upon a violation of the CVRA, the court shall  
            implement appropriate remedies that are tailored to remediate  








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            the violation, including the imposition of district-based  
            elections.  (Section 14029.)


          10)Provides for reasonable attorney's fees and litigation  
            expenses for the prevailing plaintiff party.  Provides for  
            costs for the prevailing defendant only upon a frivolous or  
            unreasonable action.  (Section 14030.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  The CVRA permits a member of a "protected class" to  
          legally challenge an at-large election system if that system  
          impairs the ability of the protected class to elect candidates  
          of its choice or influence the outcome of an election.  (A  
          "protected class" means any racial, ethnic, or linguistic group  
          that constitutes a minority of a political subdivision.) When  
          the CVRA was enacted, it had long been recognized that at-large  
          elections, coupled with racially polarized voting patterns,  
          worked to the detriment of racial and ethnic minorities.  In  
          such situations, the majority could elect all members of the  
          governing body.  District-based elections, on the other hand,  
          allowed racial and ethnic minorities to elect at least some  
          members of the governing body.  In order to prevail in a CVRA  
          action, the plaintiff must show that racially polarized voting  
          occurs in elections for members of the jurisdiction's governing  
          body.  Proving the existence of racially polarized voting  
          usually requires a statistical analysis of past election results  
          showing that members of the protected class consistently vote  
          differently than the rest of the electorate.  A plaintiff  
          bringing a CVRA challenge does not need to prove that elected  
          officials or anyone else intended to discriminate against the  
          protected class.  A system that results in the dilution of  
          voting rights of the protected class constitutes a violation,  
          regardless of intent. 









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          If the court finds a violation of CVRA, it must impose remedies  
          appropriate to correct the violation.  Presumably, the most  
          likely goal is to have the political subdivision shift from an  
          at-large election system to a district-based election system,  
          where members of the governing body reside in and represent a  
          particular district and are chosen by voters living in that  
          district.  However, this may not always be possible, especially  
          if members of the protected class are not sufficiently  
          concentrated in a geographical area such that they could  
          constitute a workable single-member district.  The existing CVRA  
          provides little guideline as to what other remedies should apply  
          in that case.  CVRA simply says that upon finding a violation,  
          "the court shall implement appropriate remedies, including the  
          imposition of district-based elections that are tailored to  
          remedy the situation."  (Section 14029.) 


          Differences Between this Bill and Existing CVRA.  This bill  
          expands the CVRA in two important ways.  First, it allows a  
          plaintiff to contest a district-based election method that  
          impairs a protected class from electing candidates of its  
          choice, whereas CVRA only permits a challenge to an at-large  
          election.  Second, the bill provides the court with a longer  
          list of specific remedies.  Under the existing CVRA, the only  
          specific remedy mentioned is for the court to order that an  
          at-large election district be replaced with a district-based  
          system.  Under this bill, however, the court would replace an  
          election system that is already district-based with an  
          "effective" district-based election system.  This bill does not  
          provide any definition or criteria for the court to use in order  
          to determine what constitutes an "effective" district-based  
          election system, but presumably an "effective" system would be  
          one that cured the violation.  Since a court cannot order an end  
          to racially polarized voting, it would presumably need to draw  
          lines in such a way as to permit members of the protected class  
          to elect candidates of their choice. 










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          If an effective district-based election system is not possible -  
          for example, if the protected class is not sufficiently large or  
          concentrated to constitute a single-member district - this bill  
          permits the court to implement other appropriate remedies,  
          including but not limited to:  (1) increasing the size of the  
          governing body; (2) creating a district that gives the protected  
          class the opportunity to join in a coalition of two or more  
          protected classes to elect candidates of their choice; or (3)  
          issuing an injunction to delay an election.  


          This bill also differs from the existing CVRA by narrowing,  
          somewhat, what constitutes a violation.  Under CVRA, as noted  
          above, a violation occurs if the at-large election system  
          impairs the ability of the protected class to elect candidates  
          of its choice or influence the outcome of an election.  In a  
          challenge to a district-based election under this bill, however,  
          it is a violation if the system prohibits the protected class  
          from electing a candidate of its choice, with no reference to  
          the ability of the protected class to "influence the outcome of  
          an election."  Although the exact import of this difference is  
          not entirely clear - in part because what it means to  
          "influence" the outcome of an election is not entirely clear -  
          the change appears to restrict the reach of this bill relative  
          to the existing CVRA.  Under this bill, a plaintiff must show  
          that the system prohibited the protected class from electing a  
          candidate of its choice; it would not be sufficient to show that  
          the system hampered the ability of a protected class to  
          "influence" an election.  


          In support of the bill, the author writes:  "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."










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          Court Role in Creating an Effective District-Based System  
          Uncertain.  Neither existing case law nor this bill provides  
          much guidance on how a court would go about fashioning an  
          "effective" district-based system.  Although the CVRA has been  
          operative since 2002, the Committee is not aware of any case,  
          including the recently settled case from Palmdale in which the  
          parties agreed to a district-based system, where the court  
          actually created new electoral district lines.  This is because  
          few if any CVRA actions have reached the ultimate stage of  
          requiring the court to "implement appropriate remedies."  Most  
          if not all of the cases have been settled, with the parties  
          working out the details of a solution.  Nonetheless, in theory,  
          the remedy under CVRA is readily apparent: if the violation is  
          caused by the nature of the at-large election system, then the  
          remedy is to replace the at-large system with a district-based  
          system.  Determining the initial violation and drawing lines for  
          the new system will not be easy, but the overall change required  
          is fairly straightforward.  Under this bill, however, a court  
          will not be asked to replace an at-large system with a  
          district-based system; rather, it will be asked to replace an  
          existing district-based system with a more "effective"  
          district-based system.  Presumably a court would have two  
          choices: it could draw lines on its own, based on whatever  
          methodologies are available to it, or it could assign the task  
          to a commission that would use the same kinds of criteria  
          employed whenever a political subdivision draws new lines in  
          response to a new census. 


          Comparison of CVRA with Federal Voting Rights Act.  Under  
          existing law, a plaintiff alleging voter dilution may also bring  
          an action under Section 2 of the federal Voting Rights Act (VRA)  
          of 1965.  The VRA was enacted by Congress pursuant to Section 2  
          of the 15th Amendment of the U.S. Constitution.  The 15th  
          Amendment prohibits the denial or abridgment of a citizen's  
          right to vote on account of "race, color, or previous condition  
          of servitude."  Section 2 of the 15th Amendment grants Congress  
          the power to enforce the 15th Amendment "by appropriate  
          legislation."  Section 2 of the VRA - not to be confused with  








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          Section 2 of the 15th Amendment - prohibits any "voting  
          qualification or prerequisite to voting or standard, practice,  
          or procedure" imposed by any State or political subdivision that  
          "results in a denial or abridgement of the right of any citizens  
          of the United States to vote on account of race or color, [or  
          language minority group.]"  In order to bring about new  
          districts under federal law, the plaintiff must satisfy all of  
          the so-called "Gingles factors:" (1) the minority group is  
          sufficiently large and geographically compact to constitute a  
          majority in a single-member district; (2) the minority group is  
          politically cohesive; and (3) the white majority votes  
          sufficiently as a bloc to defeat the minority's preferred  
          candidate.  (Thornburg v. Gingles (1986) 478 U.S. 30.)  In  
          contrast, California law does not require the plaintiff to  
          demonstrate that the minority group is geographically compact  
          before it finds a CVRA violation, even though geographical  
          compactness will be relevant in developing a remedy.  


          If a court finds a violation of the VRA, the remedies under  
          federal law are similar to those under California law.  To begin  
          with, in fashioning remedies, a federal court relies heavily  
          upon state law.  The guiding principle of federal law is that  
          the remedy is commensurate with the right violated.  A court  
          applying federal law could require the political subdivision to  
          draw new lines, issue a stay, invalidate an election, invalidate  
          an at-large election method, impose cumulative voting, or  
          appoint a referee-administrator to oversee the election.  As  
          noted above, under the CVRA, the court "shall implement  
          appropriate remedies," including but not limited to replacing an  
          at-large system with a district-based system.  Under this bill,  
          the court could order an effective district-based election  
          system or allow the protected class to join with other protected  
          classes to form the majority of a single-member district.  If  
          neither an effective district-based election system nor a  
          district-based coalition system is possible, the court may  
          implement other appropriate remedies, such as increasing the  
          size of the governing body; and issuing an injunction to delay  
          an election.  In short, under federal law, existing California  








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          law, and under this bill the court has discretion to frame an  
          approach that cures the violation in a manner consistent with  
          existing state, federal, and constitutional law. 


          Governor Has Vetoed Similar Legislation the Last Two Years.   
          This bill is substantially similar to SB 1365 (Padilla), 2014,  
          which the Governor vetoed, stating:  "While there is progress to  
          be made, the federal Voting Rights Act and the California Voting  
          Rights Act already provide important safeguards to ensure that  
          the voting strength of minority communities is not diluted."  SB  
          1365 prohibited any system that impaired the ability of a  
          protected class to elect candidates of its choice or influence  
          the outcome of an election.  AB 350 only prohibits a system that  
          impairs the ability to elect a candidate of its choice.  


          This bill is also nearly identical to last year's AB 182  
          (Alejo), which the Governor also vetoed, writing:  "I vetoed a  
          similar bill last year, SB 1365 (Padilla), and my views have not  
          changed.  I believe the federal Voting Rights Act and the  
          California Voting Rights Act provide important and sufficient  
          safeguards to ensure that the electoral strength of minority  
          voters is protected."  This bill eliminates one of the stated  
          remedies that had been available under AB 182 - requiring  
          elections for members of the governing body of the political  
          subdivision to be held on the same day as a statewide election.   
          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 determines  
          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 that and the Governor's general opposition  
          statement in his veto message, it is not clear if the change in  
          this bill will be sufficient to address the Governor's concerns.









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          ARGUMENTS IN SUPPORT:  According to one of the several  
          co-sponsors of this bill, the CVRA "was designed to safeguard  
          the opportunity for Latinos and other underrepresented groups to  
          achieve fair representation in local at-large election systems  
          where the electoral preferences of those protected groups are  
          different from those of other voters, and members of the  
          protected groups are denied an equal opportunity to elect the  
          candidates of their choice."  The co-sponsors state that "CVRA  
          has played an essential role in ensuring local government  
          compliance with state and federal voting rights protections  
          against unlawful vote dilution in at-large election systems,"  
          and they believe that this measure will "similarly protect the  
          voting rights of citizens casting ballots in certain district  
          election systems."  This bill's protections will "apply in  
          localities where district lines divide underrepresented  
          neighborhoods in a manner that minimizes their voting strength,  
          and prevent cohesive underrepresented communities from electing  
          candidates of their choice."


          Adds Secretary of State Alex Padilla:  


            Noting 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.


          REGISTERED SUPPORT / OPPOSITION:   

          Support 

          American Civil Liberties Union of California (co-sponsor)








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          Asian Americans Advancing Justice-Los Angeles (co-sponsor)


          California Common Cause (co-sponsor)


          Lawyers' Committee for Civil Rights of the San Francisco Bay  
          Area (co-sponsor)


          League of Women Voters of California (co-sponsor)


          Mexican American Legal Defense and Educational Fund (co-sponsor)


          National Association of Latino Elected and Appointed Officials  
          Educational Fund (co-sponsor)


          California State Conference of the NAACP


          Secretary of State Alex Padilla 


          Opposition 


          None on file 




          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334










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