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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