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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          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