BILL ANALYSIS Ó
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: AB 1301 Hearing Date: 7/7/15
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|Author: |Jones-Sawyer |
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|Version: |5/12/15 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Darren Chesin |
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Subject: Voting rights: preclearance
DIGEST
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.
ANALYSIS
Existing law :
1)Provides, pursuant to the federal Voting Rights Act of 1965
(VRA) (52 U.S.C. Sec. 10101 et seq.), 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
was 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.
AB 1301 (Jones-Sawyer) Page 2
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2)Provides that the SOS is the chief elections officer of the
state.
This bill :
1)Defines "covered political subdivision" to mean a political
subdivision with two or more racial or ethnic groups that each
represent at least 20% of its citizen voting-age population.
2)Provides that to ensure that the right of citizens 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:
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% of
the citizen voting-age population of the protected class
over the preceding decade, as determined by the five-year
estimates of the United States Census American Community
Survey.
d) 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.
AB 1301 (Jones-Sawyer) Page 3
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1)Requires a covered political subdivision that enacts or seeks
to administer a voting-related law, regulation, or policy that
is subject to preclearance, as described above, to submit the
law, regulation, or policy to the SOS for approval before the
law, regulation, or policy can take effect. Provides that 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:
a) Is not likely to result in a discriminatory effect on
the participation of voters from a protected class that
constitutes at least 20% of the political subdivision's
citizen voting-age population; and,
b) Is not motivated in whole or substantially in part by an
intent to reduce the participation of voters from a
protected class.
1)Requires the SOS to provide a written decision to the
governing body of the covered political subdivision within 60
days, and permits the political subdivision to implement the
law, regulation, or policy if the SOS fails to meet this
deadline. Permits the governing body of the political
subdivision to make a written request for an expedited review,
and requires the SOS to attempt to accommodate a reasonable
request for expedited review.
2)Provides that if the SOS denies a request to enact or
administer a law, regulation, or policy, 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.
3)Permits a political subdivision to enact or administer a
voting-related law, regulation, or policy that has not
received preclearance from the SOS for an election if doing so
is necessary because of an unexpected circumstance that
occurred during the 30 days immediately preceding an 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.
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4)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.
5)Provides that, for the purposes of this bill, any data
provided by the United States Census Bureau, whether based on
enumeration or statistical sampling, shall not be subject to
challenge or review by any court.
BACKGROUND
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."
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
AB 1301 (Jones-Sawyer) Page 5
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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 Columbia 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 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
AB 1301 (Jones-Sawyer) Page 6
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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, 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 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
AB 1301 (Jones-Sawyer) Page 7
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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.
Covered Political Subdivisions . The preclearance requirements
created by this bill 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.
According to census data, this bill would apply to approximately
25 counties, approximately 240 cities, and approximately 490
school districts.
The American Community Survey . According to the U.S. Census
Bureau, the ACS is an ongoing survey that provides data every
year. The ACS asks about age, sex, race, family and
relationships, income and benefits, health insurance, education,
veteran status, and disabilities.
COMMENTS
1) 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 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
AB 1301 (Jones-Sawyer) Page 8
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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.
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, 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) 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.
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
AB 1301 (Jones-Sawyer) Page 9
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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.
RELATED/PRIOR LEGISLATION
AB 182 (Alejo), which was approved by this committee and is now
pending on the Senate floor, expands the California Voting
Rights Act (CVRA) to allow challenges to district-based
elections to be brought under the CVRA, as specified.
This bill is similar to AB 280 (Alejo of 2014). AB 280 was
approved by this 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."
PRIOR ACTION
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|Assembly Floor: |51 - 26 |
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|Assembly Appropriations Committee: |12 - 5 |
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|Assembly Elections and Redistricting | 4 - 2 |
|Committee: | |
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POSITIONS
Sponsor: Mexican American Legal Defense and Educational Fund
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Support: California Immigrant Policy Center
League of Women Voters of California
Oppose: City of Indian Wells
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