BILL ANALYSIS Ó
AB 1301
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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