BILL ANALYSIS Ó
AB 350
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Date of Hearing: August 29, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
AB 350
(Alejo) - As Amended August 17, 2016
CONCURRENCE IN SENATE AMENDMENTS
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|ASSEMBLY: | | (January 25, |SENATE: |27-12 |(August 22, |
| | |2016) | | |2016) |
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(vote not relevant)
SUBJECT: District-based municipal elections: preapproval
hearings.
SUMMARY: Requires a political subdivision that changes to, or
establishes, district-based elections to hold at least two
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public hearings both before and after drawing a preliminary map
or maps of the proposed district boundaries, as specified.
Requires that written notice be provided before an action can be
brought against a political subdivision under the California
Voting Rights Act of 2001 (CVRA).
The Senate amendments delete the Assembly version of this bill,
and instead:
1)Require 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 adopting the ordinance establishing
district-based elections:
a) Hold at least two public hearings over a period of no
more than 30 days before drawing a draft map or maps of the
proposed boundaries, as specified;
b) After draft map or maps are drawn, publish and make the
draft maps available along with the potential sequence of
elections if the terms of office under the new districts
are to be staggered;
c) Hold at least two additional public hearings after the
release of the draft map or maps, with the first hearing
held no sooner than seven days after the release of the map
or maps, and the second hearing held no more than 45 days
after the first hearing, as specified;
d) Make any revised draft map available to the public for
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at least seven days before the map can be adopted; and,
e) Give special consideration to the purposes of the CVRA,
as specified, when determining the sequence of district
elections if the terms of office are to be staggered.
2)Require a prospective plaintiff to send a written notice to a
political subdivision, as specified, before commencing an
action against that political subdivision under the CVRA.
a) Prohibit a prospective plaintiff from commencing an
action under the CVRA within 45 days of the written notice
being provided.
b) Permit a political subdivision, prior to receiving a
written notice or within 45 days after receiving a written
notice, to pass a resolution outlining its intention to
transition to district-based elections, as specified,
including a discussion of specific steps the jurisdiction
will undertake to facilitate the transition. Prohibit a
prospective plaintiff from commencing an action to enforce
the CVRA within 90 days of the passage of such a
resolution.
c) Permit a prospective plaintiff that sent a written
notice to a political subdivision before that subdivision
passed a resolution of intention to transition to
district-based elections to recover the cost of the work
product generated to support the notice, as specified.
Require the political subdivision to reimburse the
prospective plaintiff for reasonable costs claimed, or an
amount to which the parties mutually agree, within 45 days
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of receiving the written demand from the prospective
plaintiff, as specified. Limit the amount that a
prospective plaintiff may recover from such a political
subdivision to the lesser of $30,000, as adjusted for
inflation, or the cost of the work product, as specified.
EXISTING LAW:
1)Requires a political subdivision that changes from an at-large
method of election to a district-based election to hold at
least two public hearings on a proposal to establish the
district boundaries of the political subdivision before a
public hearing at which the governing body of the political
subdivision votes to approve or defeat the proposal.
2)Prohibits, pursuant to the CVRA, an at-large method of
election from being imposed or applied in a political
subdivision in a manner that impairs the ability of a
protected class of voters to elect the candidate of its choice
or its ability to influence the outcome of an election, as a
result of the dilution or the abridgement of the rights of
voters who are members of a protected class.
3)Requires a court, upon finding a violation of the CVRA, to
implement appropriate remedies, including the imposition of
district-based elections, which are tailored to remedy the
violation.
4)Permits any voter who is a member of a protected class and who
resides in a political subdivision where a violation of the
CVRA is alleged to file an action in the superior court of the
county in which the political subdivision is located.
5)Permits a prevailing plaintiff party in an action brought
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under the CVRA, other than the state or political subdivision
thereof, to recover reasonable attorney's fees and litigation
expenses including, but not limited to, expert witness fees
and expenses. Prohibits a prevailing defendant party from
recovering any costs unless the court finds the action to be
frivolous, unreasonable, or without foundation.
AS PASSED BY THE ASSEMBLY, this bill expanded the CVRA to allow
challenges to district-based elections to be brought under the
CVRA, as specified.
FISCAL EFFECT: According to the Senate Appropriations
Committee, costs for districts to hold the required public
hearings would be state reimbursable, and statewide costs would
depend on the number of governments changing to district-based
elections. Costs would be minimized to the extent the public
hearings are consolidated with regularly-scheduled meetings of
the governing body. Overall, annual state costs are unknown,
but likely minor.
COMMENTS:
1)Prior Committee Consideration of this Bill: In January, this
committee considered and approved this measure on a 4-2 vote.
At the time, this measure would have expanded the CVRA to
allow challenges to district-based elections to be brought
under the CVRA, as specified. Subsequent to the committee's
approval of this measure, it was amended in the Senate to
delete the Assembly-approved provisions of the bill, and to
add the current provisions. As a result, this bill was
re-referred to the Assembly Judiciary Committee and to this
committee for further consideration pursuant to Assembly Rule
77.2. On August 25, 2016, the Assembly Judiciary Committee
adopted a recommendation that the Assembly concur in the
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Senate amendments on a 6-3 vote.
2)Purpose of the Bill: 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 [the] 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
districts for 2016, but scheduled the election 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
election 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
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another lawsuit [for] 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.
AB 350 will require local governments that are
transitioning from at-large to district-based
elections under a court order to hold at least two
public hearings before drawing a draft map and two
public hearings after the one or more draft maps are
drawn. For governments who are willing to transition
to district-based elections, this bill will allow
cities to have 90 days to pass a resolution of intent
or an ordinance to transition to district-based
[elections] before any legal action can be taken by
outside parties alleging a violation of the CVRA.
3)California Voting Rights Act of 2001: SB 976 (Polanco),
Chapter 129, Statutes of 2002, enacted the CVRA to address
racial block voting in at-large elections for local office in
California. In areas where racial block voting occurs, an
at-large method of election can dilute the voting rights of
minority communities if the majority typically votes to
support candidates that differ from the candidates who are
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preferred by minority communities. In such situations,
breaking a jurisdiction up into districts can result in
districts in which a minority community can elect the
candidate of its choice or otherwise have the ability to
influence the outcome of an election. Accordingly, the CVRA
prohibits an at-large method of election from being imposed or
applied in a political subdivision in a manner that impairs
the ability of a protected class of voters to elect the
candidate of its choice or to influence the outcome of an
election, as a result of the dilution or the abridgement of
the rights of voters who are members of the protected class.
The first case brought under the CVRA was filed in 2004, and the
jurisdiction that was the target of that case-the City of
Modesto-challenged the constitutionality of the law.
Ultimately, the City of Modesto appealed that case all the way
to the United States Supreme Court, which rejected the city's
appeal in October 2007. The legal uncertainty surrounding the
CVRA may have limited the impacts of that law in the first
five years after its passage.
Since the case in Modesto was resolved, however, many local
jurisdictions have converted or are in the process of
converting from an at-large method of election to
district-based elections due to the CVRA. In all, at least
160 local government bodies have transitioned from at-large to
district-based elections since the enactment of the CVRA.
While some jurisdictions did so in response to litigation or
threats of litigation, other jurisdictions proactively changed
election methods because they believed they could be
susceptible to a legal challenge under the CVRA, and they
wished to avoid the potential expense of litigation.
4)Arguments in Support: In support of this bill, the League of
California Cities writes:
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[T]he CVRA provides generous recovery for attorney's
fees. As a consequence, cities have incurred extremely
high legal costs. Over the past 7 years local agencies
have paid an estimated 20 million dollars plus in
legal fees to plaintiffs' attorneys. This does not
include internal costs paid by local agencies for
their own staff that are entangled in CVRA related
litigation. As it stands, millions of taxpayer general
fund dollars are being taken off the table for
increased civic engagement, infrastructure investment,
public safety or other critical public services and
instead going to plaintiffs' attorneys.
The most recent amendments reflected in AB 350 ensure
that cities are protected from serial litigants who
have been targeting cities and other local agencies
for financial gain rather than working with the local
jurisdiction and stakeholder groups to ensure the best
possible outcome. The League supports increased civic
outreach and is committed to encouraging our cities to
provide outreach to minority and non-English speaking
communities throughout this process. AB 350 will boost
outreach efforts to all communities. By providing a
safe harbor period for cities that are making good
faith efforts to switch to districts by ordinance,
cities are incentivized to work with all stakeholders
on district conversion through increased public
outreach without the fear of soaring legal fees.
5)Related Legislation: AB 278 (Roger Hernández), which is also
being heard in this committee today, permits any city,
regardless of population size, to change the method of
electing its governing board members from at-large to a
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by-district method of election without receiving voter
approval and provides that if voter approval is sought, the
proposed boundaries for the districts are not required to
appear on the ballot.
6)Previous Legislation: AB 1440 (Campos), Chapter 873, Statutes
of 2014, requires any political subdivision that is switching
from an at-large method of election to a district-based method
of election to hold at least two public hearings on the
proposed district boundaries prior to adopting those
boundaries, among other provisions.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union of California (prior version)
City Clerks Association of California
League of California Cities
League of California Cities Latino Caucus
Mexican American Legal Defense and Educational Fund (prior
version)
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Opposition
None on file.
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094