BILL ANALYSIS Ó AB 350 Page 1 Date of Hearing: August 25, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 350 (Alejo) - As Amended August 17, 2016 FOR CONCURRENCE SUBJECT: california voting rights act: disctrict-based elections: Preapproval Hearings KEY ISSUES: 1)Should a political subdivision that changes from an at-large to a district-based election system hold public hearings both before and after drawing a preliminary map or maps of proposed district boundaries? 2)Should a prospective plaintiff who provides prescribed notice that a political subdivision's use of an at-large election system may violate the California Voting Rights Act be reimbursed for the cost of work product generated in support of the notice, if the political subdivision adopts a district-based election system? AB 350 Page 2 SYNOPSIS As originally heard by this Committee, this bill would have extended the reach of the California Voting Rights Act of 2001 (CVRA) to permit challenges to a district-based election system if it could be shown that, due to racially polarized voting patterns, the district-based system impaired the ability of a protected class to elect candidates of its choice. This would have constituted a significance change in existing law as the CVRA currently only permits members of a protected class to challenge an "at-large" election system. Historically, at-large elections were suspect because they invariably dilute the vote of a minority. District elections - by increasing the likelihood that a minority could form a majority within a single district - were generally seen as one possible solution to the discriminatory effects of at-large elections. AB 350 recognized, however, that a district-based election system can also dilute minority voting power, depending upon how lines are drawn, the geographical distribution of minority voters, and the degree of racially polarized voting. However, AB 350 was substantially amended in the Senate. In its current form, and as now before this Committee, AB 350 would make two more modest changes to existing law. First, it would require that a political subdivision that establishes, or changes to, a district-based election system hold public hearings both before and after drawing a preliminary map of the proposed district boundaries. Current law only requires public hearings prior to the public hearing at which the governing body of the political subdivision votes to approve or defeat a proposal to adopt a district-based election system. Second, the bill would establish procedures for providing reimbursement, as specified, to a prospective plaintiff whose notice of a potential CVRA violation prompted a political subdivision to change from an at-large to a district-based election system. This bill is supported by several civil rights groups. There is no known opposition to the bill in its current form. AB 350 Page 3 SUMMARY: Requires a political subdivision that adopts a district-based election system to hold public hearings, as specified, before and after drawing a preliminary map of the proposed district boundaries, and establishes a procedure for a prospective plaintiff to send notice to a political division of a possible violation of the California Voting Rights Act (CVRA) and seek reasonable reimbursement (not to exceed $30,000) for work product that prompts a political subdivision to change from an at-large to district-based election system. Specifically this bill: 1) Requires a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, to do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat an ordinance establishing district-based elections: a) Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision shall hold at least two public hearings over a period of no more than thirty days, at which the public is invited to provide input regarding the composition of the districts. Before these hearings, the political subdivision may conduct outreach to the public, including to non-English-speaking communities, to explain the districting process and to encourage public participation. b) After all draft maps are drawn, the political subdivision shall publish and make available for release at least one draft map and, if members of the governing body of the political subdivision will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The political subdivision shall also hold at least two AB 350 Page 4 additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections, if applicable. Specifies that if a draft map is revised at or following a hearing, then the revised map shall be published and made available to the public for at least seven days before being adopted. 2) Requires the governing body, when determining the final sequence of district elections for purposes to creating staggered terms of office, to give special consideration to the purposes of the CVRA and to take into account the preferences expressed by members of the districts. 3) Applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election. 4) Requires that before commencing a CVRA enforcement action, a prospective plaintiff shall send by certified mail a written notice to the clerk of the political subdivision against which the action would be brought asserting that the political subdivision's method of conducting elections may violate the CVRA. Specifies that a prospective plaintiff may not commence an enforcement action within 45 days of the political subdivision's receipt of the written notice. 5) Provides that before receiving written notice, or within 45 days of receipt of a notice, a political subdivision may pass a resolution outlining its intention to transition from at-large to district-based elections, the steps it will undertake to facilitate this transition, and an estimated time frame for doing so. If a political subdivision passes such a resolution, a prospective plaintiff shall not commence an enforcement action within 90 days of the resolution's AB 350 Page 5 passage. 6) Provides that if a political subdivision adopts an ordinance establishing district-based elections, a prospective plaintiff who sent a written notice before the political subdivision passed its resolution of intention may, within 30 days of the ordinance's adoption, demand reimbursement for the cost of the work product generated to support the notice, as specified. Specifies that the amount of reimbursement shall not exceed $30,000, as adjusted annually to the Consumer Price Index for All Urban Consumers, as published by the United States Department of Labor. 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 6 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 AB 350 Page 7 implement appropriate remedies that are tailored to remediate 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 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. As originally heard by this Committee, AB 350 would have expanded the CVRA in two important ways. First, AB 350 Page 8 it would have allowed 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 would have provided the court with a longer list of specific remedies in cases of a violation. Senate Amendments: AB 350 was substantially amended in the Senate. In its current form, the bill makes two important, but arguably more modest, changes to existing law. First, the bill would now require that a political subdivision that establishes, or changes to, a district-based election system hold public hearings both before and after drawing a preliminary map of the proposed district boundaries. Current law only requires public hearings prior to the public hearing at which the governing body of the political subdivision votes to approve or defeat a proposal to adopt a district-based election system. Second, the bill would establish procedures by which a prospective plaintiff could notify a political subdivision that an at-large election system may violate the CVRA. If the political division, as a result of this notice, adopts a resolution to adopt a district-based election, this bill would allow the prospective plaintiff to seek reasonable reimbursement for any work product submitted in support of the notice. Such work product could be quite significant, including detailed demographic and statistical analyses. Specifically, this bill would require a prospective plaintiff, before commencing an action, to send written notice to the clerk of the political subdivision asserting that the political subdivision's method of conducting elections may violate CVRA. The prospective plaintiff would refrain from commencing an action during specified time frames, during which the governing body of the political subdivision could consider and possibly adopt an ordinance establishing district-based elections. If the political subdivision adopts such an ordinance, a prospective plaintiff who sent a notice of possible CVRA violation could AB 350 Page 9 seek reimbursement for the cost of any work product that was generated in support of that notice. In sum, the bill establishes procedures by which a prospective plaintiff could seek compensation for the work performed in documenting a CVRA violation and bringing it to the attention of the governing body. The bill specifies that compensation shall not exceed $30,000, as adjusted annually to the Consumer Price Index. Governor Has Vetoed Similar Legislation the Last Two Years. Unlike the bill originally heard by this Committee, the current version of the bill does not appear to have the same provisions that prompted the Governor to veto previous efforts to strengthen CVRA. For example, SB 1365 (Padilla, 2014) prohibited any system that impaired the ability of a protected class to elect candidates of its choice or influence the outcome of an election. The Governor's terse veto stated: "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." Similarly, AB 182 (Alejo, 2015) was also vetoed, with the Governor 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." The bill presently before this Committee, however, is substantially different from either of those prior efforts. Most notably, this bill does not extend CVRA to permit an action against district-based elections. Rather, it simply requires an additional public hearing after preliminary maps have been drawn. The only change that this bill makes, relative to CVRA, is to permit a prospective plaintiff to seek compensation for any work product that prompts a political division to adopt a district-based election system instead of facing what would most certainly be the much higher costs of defending a CVRA challenge. AB 350 Page 10 ARGUMENTS IN SUPPORT: According to the author: Last year, the City of Anaheim began its transition from at-large city council elections to district-based elections after a lawsuit by American Civil Liberties Union of Southern California and Latino activists in 2012. In November 2014, the people of Anaheim approved two ballot measures that would effect this transition. The first approved district maps provided for two Latino plurality districts and one majority Latino district. In November of 2015, the Anaheim City Council scheduled the elections for the two Latino plurality district for 2016, but scheduled the elections for the only Latino majority district for 2018. The scheduling of the only Latino majority district in a midterm election year could have the effect of putting the elections for a district whose population consists of a majority of a protected class during a cycle in which turnout is traditionally decreased. This decision created an outrage amongst the Latino community in the city, and forced Anaheim to schedule the majority Latino district for 2016 before facing another lawsuit violating the state and Federal Voting Rights Act. Under existing law, nothing would stop another city from following Anaheim's example in scheduling its staggered city council districts in a manner that would dilute and suppress the vote of a protected class in violation of the state Voting Rights Act. REGISTERED SUPPORT / OPPOSITION: AB 350 Page 11 Support American Civil Liberties Union California Common Cause Mexican American Legal Defense and Educational Fund League of California Cities League of California Cities Latino Caucus Opposition None on file Analysis Prepared by:Thomas Clark and Leora Gershenzon / JUD. / (916) 319-2334