BILL ANALYSIS Ó
AB 350
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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