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?









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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.  









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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.) 








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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. 










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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:   









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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