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