BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 29, 2015


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          AB 1301  
          (Jones-Sawyer) - As Introduced February 27, 2015


          SUBJECT:  Voting rights:  preclearance.


          SUMMARY:  Establishes a state "preclearance" system under which  
          certain political subdivisions are required to get approval from  
          the Secretary of State (SOS) before implementing specified  
          policy changes related to elections.  Specifically, this bill:  


          1)Defines the following terms, for the purposes of this bill:


             a)   "Citizen voting-age population" to mean the population  
               of citizens who are 18 years of age or older within a  
               political subdivision, as calculated by the United States  
               (U.S.) Census Bureau in the most recent federal decennial  
               census.



             b)   "Electoral jurisdiction" to mean a geographic area  
               within which reside the voters who are qualified to vote  
               for an elective office.










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             c)   "Multilingual voting materials" to mean registration or  
               voting notices, forms, instructions, assistance, or other  
               materials or information relating to the electoral process,  
               including ballots, provided in the language of one or more  
               language minority groups.





             d)   "Political subdivision" to mean a geographic area of  
               representation created for the provision of government  
               services, including, but not limited to, a city, a school  
               district, a community college district, or other district  
               organized pursuant to state law.



             e)   "Protected class" to mean a class of voters who are  
               members of a race, color, or language minority group, as  
               this class is referenced and defined in the federal Voting  
               Rights Act of 1965 (VRA) (52 U.S.C. Sec. 10101 et seq.).



             f)   "Voting locations" to mean places for casting a ballot.


          2)Provides that to ensure that the right of citizens who reside  
            in California to vote is not denied or abridged on account of  
            race, color, or language minority status through the  
            enforcement of a voting-related law, regulation, or policy  
            that is enacted or administered after the enactment date of  
            this bill, the following voting-related laws, regulations, and  
            policies are subject to preclearance by the SOS:











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             a)   A change to an at-large method of election that adds  
               offices elected at-large or converts offices elected by  
               single-member districts to one or more at-large or  
               multimember districts. 


             b)   A change to the boundaries of an electoral jurisdiction,  
               or a series of changes within a year to the boundaries of  
               an electoral jurisdiction, that reduces the proportion of  
               the citizen voting-age population of a protected class by 5  
               or more percent. 


             c)   A change through redistricting that alters the  
               boundaries of districts within an electoral jurisdiction in  
               which a protected class has experienced a population  
               increase of at least 25,000 residents or at least 20  
               percent of the citizen voting-age population of the  
               protected class over the preceding decade, as determined by  
               the five-year estimates of the U.S. Census American  
               Community Survey.


             d)   A change to voting locations that reduces, consolidates,  
               or relocates one or more voting locations, including an  
               early, absentee, or election-day voting location, and  
               results in a net loss, on a per voter basis, of voting  
               locations in 20 percent of the total number of census  
               tracts in a political subdivision with the highest  
               proportion of voters from a protected class that represents  
               at least 20 percent of the citizen voting-age population in  
               the political subdivision, provided that the net loss is  
               greater than the net loss resulting from the changes in 20  
               percent of the total number of census tracts in a political  
               subdivision with the highest proportion of voters of any  
               other racial or ethnic group that represents at least 20  
               percent of the citizen voting-age population in the  









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               political subdivision. 


             e)   A change to multilingual voting materials that reduces  
               the voting materials available in languages other than  
               English, or alters the manner in which the materials are  
               provided or distributed, if no similar reduction or  
               alteration occurred in materials provided in English.


          3)Provides that if a political subdivision enacts or seeks to  
            administer a voting-related law, regulation, or policy that is  
            subject to preclearance, as described above, and that is  
            different from that in force or effect on the date this bill  
            is enacted, the governing body of the political subdivision  
            shall submit the law, regulation, or policy to the SOS for  
            approval.  Provides that the law, regulation, or policy shall  
            not take effect or be administered in the political  
            subdivision until the law, regulation, or policy is approved  
            by the SOS.


             a)   Requires the SOS to provide a written decision to the  
               governing body of the political subdivision within 60 days  
               of a request to enact or administer a covered  
               voting-related law, regulation, or policy. Provides that if  
               the SOS fails to provide a written decision within 60 days,  
               the governing body of the political subdivision may  
               implement the law, regulation, or policy. Permits the  
               governing body of the political subdivision to make a  
               written request for an expedited review if the political  
               subdivision has a demonstrated need to implement the  
               proposed change before the end of the 60-day review period.  
               Requires the written request to describe the basis for the  
               request in light of conditions in the political subdivision  
               and to specify the date by which a decision is needed.  
               Requires the SOS to attempt to accommodate a reasonable  









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               request. 


             b)   Provides that the governing body of the political  
               subdivision shall have the burden of establishing, by  
               objective and compelling evidence, that the law,  
               regulation, or policy satisfies both of the following: 


               i)     Is not likely to result in a discriminatory effect  
                 on the participation of voters from a protected class  
                 that constitutes at least 20 percent of the political  
                 subdivision's citizen voting-age population; and,


               ii)    Is not motivated in whole or substantially in part  
                 by an intent to reduce the participation of voters from a  
                 protected class. 


             c)   Provides that if the SOS denies a request to enact or  
               administer a law, regulation, or policy, the governing body  
               of the political subdivision may seek review of the  
               decision by means of an action filed in superior court.  
               Permits the SOS to file suit to enjoin the governing body  
               of a political subdivision from implementing a law,  
               regulation, or policy in violation of this bill. Provides  
               that the venue for such actions shall be the Sacramento  
               County Superior Court.


          4)Permits a political subdivision, notwithstanding the  
            preclearance requirements outlined above, to enact or  
            administer a voting-related law, regulation, or policy that is  
            different from that in force or effect on the date this bill  
            is enacted if doing so is necessary because of an unexpected  
            circumstance that occurred during the 30 days immediately  









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            preceding an election, in which case the political subdivision  
            is permitted to enact or administer the law, regulation, or  
            policy only for purposes of that election. Requires the  
            political subdivision, after the election, to immediately  
            submit the law, regulation, or policy to the SOS for approval  
            pursuant to this bill.


          5)Permits the Attorney General, or a registered voter who  
            resides in a political subdivision where the change to a  
            voting-related law, regulation, or policy occurred, to file an  
            action in superior court to compel the political subdivision  
            to satisfy the requirements of this bill.  Provides that in an  
            action brought pursuant to this provision, a court shall  
            provide as a remedy that the voting-related law, regulation,  
            or policy be enjoined unless the court determines that it is  
            not subject to this bill or has been approved by the SOS, as  
            specified. 


          6)Provides that, for the purposes of this bill, any data  
            provided by the U.S. Census Bureau, whether based on  
            enumeration or statistical sampling, shall not be subject to  
            challenge or review by any court. 


          7)Prohibits a political subdivision with two or more racial or  
            ethnic groups that each represent at least 20 percent of the  
            citizen voting-age population in the political subdivision  
            from implementing a previously enacted or adopted  
            voting-related law, regulation, or policy, as described above  
            that has not yet been implemented unless it is approved by the  
            SOS, as specified.


          EXISTING LAW:  










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          1)Pursuant to the VRA, provides that a change in voting  
            procedures may not take effect in a state or political  
            subdivision that is covered by the preclearance requirements  
            of Section 5 of the VRA until the change is approved by a  
            specified federal authority. A state or political subdivision  
            is covered by the preclearance requirements of the VRA if it  
            maintained a specified test or device as a prerequisite to  
            voting, and had low voter registration or turnout in the 1960s  
            and early 1970s.  However, the U.S. Supreme Court on June 25,  
            2013 in Shelby County v. Holder (2013) 133 S.Ct. 2612, held  
            that the coverage formula of the VRA is unconstitutional and  
            may not be used as a basis for requiring a jurisdiction to  
            subject a proposed change in voting procedures to federal  
            preclearance. Prior to that decision, the counties of Kings,  
            Monterey, and Yuba were covered jurisdictions subject to the  
            federal preclearance requirements.



          2)Provides that the SOS is the chief elections officer of the  
            state.

          FISCAL EFFECT:  Unknown. State-mandated local program; contains  
          reimbursement direction.


          COMMENTS:  


          1)Purpose of the Bill:  According to the author:


               Protecting?voting rights is critical to ensuring a  
               working democracy.  Often entire communities across  
               the state are shut out of the important  
               decision-making process that impacts their day-to-day  









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               lives.  Providing voter protections not only increases  
               civic participation, but ensures that communities have  
               a fair say in representation in all levels of  
               government.  





               When Congress enacted the [VRA], it determined that  
               racial discrimination in voting had been more  
               prevalent in certain areas of the country.  Section 4  
               of the VRA established a formula to identify those  
               areas and provided for more stringent remedies where  
               appropriate.



               The preclearance provision of the VRA, better known as  
               Section 5, was the result of realizing that attempting  
               to block voter disenfranchisement on a case-by-case  
               basis was ineffective.  For nearly 50 years, Section 5  
               of the VRA served as our democracy's checkpoint in  
               protecting millions of voters of color from racially  
               discriminatory voting practices.  



               On June 25, 2013, the U.S. Supreme Court shamefully  
               held that the coverage formula as set forth under  
               Section 4(b) of the VRA is unconstitutional, and can  
               no longer be used as a basis for subjecting  
               jurisdictions to preclearance under Section 5 of the  
               VRA. Shelby County v. Holder, 133 S. Ct. 2612 (2013).   
               Prior to that holding, the Counties of Kings,  
               Monterey, and Yuba were covered jurisdictions subject  
               to the federal preclearance requirements.









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               In an effort to remedy the abrupt ending of Section 5  
               coverage and ensure that the right to vote is not  
               abridged or denied in California, this bill requires  
               California's Secretary of State to approve any changes  
               to at-large elections, jurisdiction boundaries,  
               redistricting, voting locations, and/or multilingual  
               voting materials in covered jurisdictions.  In doing  
               so, this bill will eliminate the inordinate amount of  
               time and effort needed to pursue costly and repetitive  
               litigation.
          2)Federal Voting Rights Act of 1965 & Shelby County v. Holder:   
            The 15th Amendment to the U.S. Constitution provides, in part,  
            that "[t]he right 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 conditions of  
            servitude."  Additionally, the 15th Amendment authorizes  
            Congress to enact legislation to enforce its provisions.  The  
            15th Amendment was ratified in February 1870.



            In 1965, Congress determined that state officials were failing  
            to comply with the provisions of the 15th Amendment.   
            Congressional hearings found that litigation to eliminate  
            discriminatory practices was largely ineffective because state  
            and local jurisdictions would institute new discriminatory  
            practices to replace any such practices that were struck down  
            in court.  As a result, Congress passed and President Johnson  
            signed the VRA.  The VRA, among other provisions, prohibits  
            any "voting qualification or prerequisite to voting or  
            standard, practice, or procedure" from being imposed by any  
            "State or political subdivision in a manner which results in a  
            denial or abridgement of the right of any citizen of the  
            United States to vote on account of race or color."









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            Section 2 of the VRA is a nationwide prohibition against  
            voting practices and procedures, including redistricting plans  
            and at-large election systems, poll worker hiring, and voting  
            registration procedures, that discriminate on the basis of  
            race, color, or membership in a language minority group.   
            Section 2 allows the U.S. Attorney General, as well as  
            affected private citizens, to bring lawsuits in federal court  
            to challenge practices that may violate the VRA.  Section 4 of  
            the VRA sets the criteria for determining whether a  
            jurisdiction is covered under certain provisions of the VRA,  
            including the requirement for review of changes affecting  
            voting under Section 5.  Section 5 of the VRA requires certain  
            states and covered jurisdictions to receive approval for any  
            changes to law and practices affecting voting from the U.S.  
            Department of Justice (DOJ) or the U.S. District Court of the  
            District of Colombia to ensure that the changes do not have  
            the purpose or effect of "denying or abridging the right to  
            vote on account of race or color."  The requirement to obtain  
            approval under Section 5 is commonly referred to as a  
            "preclearance" requirement.  





            While much of the VRA is permanent, certain special provisions  
            of the VRA are temporary, including Section 5.  When the VRA  
            was enacted, Section 5 was scheduled to expire in five years.   
            Subsequently, Congress extended those provisions for another  
            five years in 1970, an additional seven years in 1975, and an  
            additional 25 years in 1982, and again for an additional 25  
            years in 2006.  As a result, Section 5 currently is scheduled  









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            to expire in 2031.  





            In April 2010, Shelby County in Alabama filed suit in the U.S.  
            District Court for the District of Columbia challenging the  
            constitutionality of Section 5 of the VRA, and of the coverage  
            formulas contained in Section 4 (b) of the VRA.  Because the  
            State of Alabama was covered under the preclearance  
            requirements of Section 5, Shelby County was also covered as a  
            political subdivision of Alabama.  In the lawsuit, Shelby  
            County argued that Congress exceeded its authority under the  
            15th Amendment and thus violated the 10th Amendment and  
            Article IV of the U.S. Constitution when it voted to  
            reauthorize Section 5 without changing or updating the  
            formulas that determined which jurisdictions were covered  
            under Section 5.  The District Court rejected Shelby County's  
            arguments, and upheld the constitutionality of the Section 5  
            reauthorization and the coverage formulas contained in Section  
            4 (b).  On appeal, the U.S. Court of Appeals for the District  
            of Columbia Circuit affirmed the ruling of the District Court,  
            and Shelby County subsequently appealed to the U.S. Supreme  
            Court.  





            On June 25, 2013, the U.S. Supreme Court, in Shelby County v.  
            Holder, held that the coverage formula in Section 4 (b) of the  
            VRA is unconstitutional and can no longer be used as a basis  
            for subjecting jurisdictions to preclearance under Section 5  
            of the VRA.  The Court stated that although the formula was  
            rational and necessary at the time of its enactment, it is no  
            longer responsive to current conditions.  The Court, however,  









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            did not strike down Section 5, which contains the preclearance  
            conditions.  Without Section 4 (b), however, no jurisdiction  
            will be subject to Section 5 preclearance unless Congress  
            enacts a new coverage formula.  





            The effect of the Shelby County decision is that the  
            jurisdictions identified by the coverage formula in Section 4  
            (b) no longer need to seek preclearance from the U.S. Attorney  
            General or the U.S. District Court for the District of  
            Columbia before implementing new voting changes, unless they  
            are covered by a separate court order entered under Section 3  
            (c) of the VRA.  





            All or specific portions of the following states were required  
            to have their voting changes precleared before the U.S.  
            Supreme Court decision in Shelby: Alabama, Alaska, Arizona,  
            Florida, Georgia, Louisiana, Michigan, Mississippi, New  
            Hampshire, New York, North Carolina, South Carolina, South  
            Dakota, Texas, and Virginia.  Also included were the  
            California counties of Kings, Monterey, and Yuba.  Merced  
            County previously was subject to the preclearance requirement,  
            but it successfully bailed out from Section 5 coverage in 2012  
            through a court approved consent decree negotiated with the  
            U.S. DOJ.  These four California counties were covered by the  
            preclearance requirements because of compliance with certain  
            state laws in effect at the time (including English-only  
            ballots).  Additionally, all four counties had large military  
            populations that were highly transient and otherwise unlikely  
            to register to vote or to vote in elections in the counties  









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            where they were stationed.  Those military populations lowered  
            the percentage of eligible voters in those counties who were  
            registered or voted for President.



            According to the U.S. DOJ, the ruling in Shelby County does  
            not affect Section 3 (c) of the VRA.  Jurisdictions covered by  
            a preclearance requirement pursuant to court orders under  
            Section 3 (c) remain subject to the terms of those court  
            orders.  Additionally, the Supreme Court's decision states  
            that Section 2 of the VRA, which prohibits discrimination in  
            voting based on race or language minority status, and which  
            applies on a permanent nationwide basis, is unaffected by the  
            decision. Likewise, other provisions of the VRA that prohibit  
            discrimination in voting remain in full force and effect, as  
            do other federal laws that protect voting rights, including  
            the Uniformed and Overseas Citizens Absentee Voting Act, the  
            National Voter Registration Act, and the Help America Vote  
            Act.



          3)Formula Identifying Covered Jurisdictions:  Under the federal  
            VRA, the preclearance requirement was targeted at  
            jurisdictions that had low voter registration or participation  
            rates, and that used a "test or device" for the purpose or  
            with the effect of denying or abridging the right to vote on  
            account of race or color. This targeting was intended to  
            direct the greatest level of scrutiny to laws and policies  
            that were enacted in areas where voting discrimination had  
            been most flagrant and where, absent federal oversight,  
            discriminatory voting laws and policies were likely to  
            persist.  












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          This bill, on the other hand, targets specific voting practices  
            and policies that have been found to be discriminatory in the  
            past, rather than requiring all changes in voting practices  
            and policies in covered jurisdictions to be subject to  
                  preclearance.  This type of targeting, which is sometimes  
            referred to as "known practices coverage," has been suggested  
            as one way to adjust the preclearance requirements in federal  
            law in response to the Supreme Court's decision in Shelby  
            County. However, not all jurisdictions that attempt to  
            implement policy changes that are "known practices" are  
            required to submit those changes for preclearance under this  
            bill.  Furthermore, the formula for determining the  
            jurisdictions that are required to submit voting changes for  
            preclearance with the SOS is based entirely on the racial and  
            ethnic makeup of an area, without any necessity to demonstrate  
            that the political subdivision in question has engaged in  
            discriminatory practices or otherwise has low or  
            unrepresentative voter participation.  Jurisdictions with less  
            racial and ethnic diversity would not be required to have  
            voting changes precleared by the SOS under this bill even if  
            those jurisdictions adopted discriminatory policies that  
            harmed voter participation, while jurisdictions that are more  
            racially and ethnically diverse would be subject to  
            preclearance regardless of how inclusive their electoral  
            policies are.
          4)Covered Political Subdivisions and Suggested Amendment:  
            Although the current version of the bill is somewhat unclear,  
            according to the author and the sponsor, it is their intent  
            that the preclearance requirements created by this bill should  
            apply only to those political subdivisions with two or more  
            racial or ethnic groups that each represent at least 20  
            percent of the citizen voting-age population.  Committee staff  
            recommends that this bill be amended to clarify that intent. 



          If amended to reflect that intent, according to census data,  









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            this bill would apply to approximately 25 counties,  
            approximately 240 cities, and approximately 490 school  
            districts.
          5)Arguments in Support:  The sponsor of this bill, the Mexican  
            American Legal Defense and Educational Fund, writes in  
            support:


               Before the decision in Shelby County v. Holder, the  
               federal VRA required certain jurisdictions with  
               histories of low participation in voting to submit all  
               of their elections changes to the Department of  
               Justice for review and pre-clearance. Three California  
               counties were covered by this pre-clearance  
               requirement, which ensured a quick and efficient  
               process of reviewing the submitted changes for  
               potential discrimination. The process ensured that the  
               entire nation, including California, obtained a clear  
               indication of changes to be avoided because of their  
               discriminatory potential, without plaintiffs and  
               defendants having to go through the extreme time and  
               costs of federal litigation. The loss of this  
               efficient dispute resolution process continues to  
               burden jurisdictions and voters across the country.





               AB 1301 identifies specific practices that have  
               historically been correlated with deterring the  
               participation of minority voters and the growth of  
               minority voting power, including that of emerging,  
               fast-growing minority communities - the precise  
               communities whose growing political power may cause  
               some incumbent elected officials to take steps to  
               entrench themselves against a nascent political force.  









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               By identifying these elections-related changes and  
               subjecting them to a swift and efficient review for  
               potential discrimination, California can avoid the  
               costs of federal VRA litigation by private parties  
               that would otherwise ensue. The bill also would ensure  
               that these potentially problematic changes are  
               reviewed prior to implementation at any election -  
               before any voter's right to cast a meaningful ballot  
               is infringed.

          6)Concerns Raised:  While they have not taken an official  
            position on this bill, the California State Association of  
            Counties, the Rural County Representatives of California  
            (RCRC), and the Urban Counties Caucus (UCC) all have expressed  
            concerns with this bill.  In a joint letter, RCRC and UCC  
            write:


               AB 1301 requires state preclearance for a number of  
               elections-related activities. Most concerning are the  
               provisions regarding the establishment of voting  
               locations. Elections must be consistently administered  
               and deadlines are established to ensure that the  
               various tasks, including the siting of polling  
               stations, result in a fair election. Polling locations  
               must be established no later than 29 days prior to an  
               election; however changes and replacement sites are  
               often needed when unforeseen problems arise with a  
               particular location. This can happen even days before  
               Election Day. The movement of polling stations is  
               minimal, yet it does occur and county elections  
               officials need to make theses change to correspond  
               with the circumstances.



               AB 1301 gives the Secretary of State in an affected  









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               county 60 days to approve a change to polling  
               locations. We believe this condition dramatically  
               reduces the flexibility that county elections  
               officials need while at the same time driving up the  
               costs to conduct the election. We are also concerned  
               about the impact a delay in approving a change in  
               polling stations (or the inability to do so) would  
               have on voters when circumstances call for an  
               immediate change.

               RCRC and UCC are equally concerned about the impact of  
               AB 1301 as it relates county's role administering the  
               elections for cities, special districts, and school  
               districts. We assume that other jurisdictions would be  
               responsible for costs associated with preclearance  
               activities, however the bill does not specify what  
               level of legal exposure a county has with respect to  
               administering these elections or if a county elections  
               official has the authority to require that other  
               jurisdictions comply with this [statute]. With AB  
               1301's private right of action provisions that allow  
               individuals to sue and compel a jurisdiction to comply  
               with its provisions, counties are concerned about  
               incurring the costs of legal challenges for other  
               entities.

          7)Related Legislation: AB 182 (Alejo), which is also being heard  
            in this committee today, expands the California Voting Rights  
            Act (CVRA) to allow challenges to district-based elections to  
            be brought under the CVRA, as specified.



          AJR 13 (Ridley-Thomas), which is pending in this committee,  
            recognizes August 6, 2015, as the 50th Anniversary of the  
            signing of the VRA, and urges the Congress and the President  
            of the United States to continue to secure citizens' right to  









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            vote and remedy any racial discrimination in voting.
          8)Previous Legislation:  This bill is similar to AB 280 (Alejo)  
            of 2014.  The preclearance provisions of AB 280 were added to  
            the bill in the Senate, and were never considered by the  
            Assembly.  AB 280 was approved by the Senate Elections &  
            Constitutional Amendments Committee, but was held on the  
            Senate Appropriations Committee's suspense file.



          SB 1365 (Padilla) of 2014 would have expanded the CVRA in a  
            manner similar to that proposed by AB 182 of this session (as  
            detailed above).  SB 1365 was vetoed by Governor Brown.  In  
            his veto message, the Governor stated "[w]hile 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."
          REGISTERED SUPPORT / OPPOSITION:




          Support


          Mexican American Legal Defense and Educational Fund (sponsor)


          American Civil Liberties Union of California


          California Immigrant Policy Center













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          Opposition


          None on file.




          Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094