BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                       AB 1301|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   THIRD READING 


          Bill No:  AB 1301
          Author:   Jones-Sawyer (D) and Alejo (D)
          AmendedAmended:5/12/15 in Assembly
          Vote:     21  

           SENATE ELECTIONS & C.A. COMMITTEE:  4-0, 7/7/15
           AYES:  Allen, Hancock, Hertzberg, Liu
           NO VOTE RECORDED:  Anderson

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 8/27/15
           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  51-26, 6/2/15 - See last page for vote

           SUBJECT:   Voting rights: preclearance


          SOURCE:    Mexican American Legal Defense and Educational Fund
          
          DIGEST:   This bill 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  








                                                                    AB 1301  
                                                                    Page  2


             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. 

           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 five or more percent. 








                                                                    AB 1301  
                                                                    Page  3


              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. 

           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  







                                                                    AB 1301  
                                                                    Page  4


             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. 

           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  







                                                                    AB 1301  
                                                                    Page  5


          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  
          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  







                                                                    AB 1301  
                                                                    Page  6


          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, 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  







                                                                    AB 1301  
                                                                    Page  7


          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  
          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 applies to approximately 25  
          counties, approximately 240 cities, and approximately 490 school  
          districts. 

          The American Community Survey (ACS).  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  







                                                                    AB 1301  
                                                                    Page  8


            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. 

          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 SOS 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. 







                                                                    AB 1301  
                                                                    Page  9



          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. 

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes

          According to the Senate Appropriations Committee:

          The Office of SOS indicates that it would incur first year costs  
          of $630,000, and $597,000 ongoing (General Fund), to implement  
          the provisions of this bill. SOS would also require expertise in  
          statistical analysis related to redistricting at a General Fund  
          cost of $200,000 once per decade.


          In addition, this bill could potentially result in state  
          reimbursable mandate costs for county expenses, in the range of  
          $100,000







                                                                    AB 1301  
                                                                    Page  10






          SUPPORT:   (Verified8/27/15)


          Mexican American Legal Defense and Educational Fund (source)
           California Immigrant Policy Center
          League of Women Voters of California


          OPPOSITION:   (Verified8/27/15)


          City of Indian Wells

          ASSEMBLY FLOOR:  51-26, 6/2/15
          AYES:  Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,  
            Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,  
            Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gipson,  
            Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin,  
            Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin,  
            Nazarian, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas,  
            Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber,  
            Williams, Wood, Atkins
          NOES:  Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,  
            Dahle, Beth Gaines, Gallagher, Gatto, Hadley, Harper, Jones,  
            Kim, Lackey, Maienschein, Mathis, Mayes, Melendez, Obernolte,  
            Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Chávez, Grove, Linder

          Prepared by:Darren Chesin / E. & C.A. / (916) 651-4106
          8/30/15 19:27:48


                                   ****  END  ****


          











                                                                    AB 1301  
                                                                    Page  11