BILL ANALYSIS Ó AB 350 Page 1 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 AB 350 Page 2 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. AB 350 Page 3 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. AB 350 Page 4 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.) AB 350 Page 5 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 AB 350 Page 6 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. AB 350 Page 7 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. AB 350 Page 8 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." AB 350 Page 9 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 AB 350 Page 10 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 AB 350 Page 11 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. AB 350 Page 12 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) AB 350 Page 13 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 AB 350 Page 14