BILL ANALYSIS Ó AB 1301 Page 1 GOVERNOR'S VETO AB 1301 (Jones-Sawyer and Alejo) As Enrolled September 9, 2015 2/3 vote ------------------------------------------------------------------- |Committee |Votes |Ayes |Noes | | | | | | | | | | | |----------------+------+---------------------+---------------------| |Elections |4-2 |Ridley-Thomas, |Travis Allen, Gatto | | | |Gordon, Mullin, | | | | |Perea | | | | | | | |----------------+------+---------------------+---------------------| |Appropriations |12-5 |Gomez, Bonta, |Bigelow, Chang, | | | |Calderon, Daly, |Gallagher, Jones, | | | |Eggman, |Wagner | | | | | | | | | | | | | |Eduardo Garcia, | | | | |Gordon, Holden, | | | | |Quirk, Rendon, | | | | |Weber, Wood | | | | | | | | | | | | ------------------------------------------------------------------- AB 1301 Page 2 -------------------------------------------------------------------- |ASSEMBLY: |51-26 |(June 2, 2015) |SENATE: |26-14 |(September 3, | | | | | | |2015) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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 "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. AB 1301 Page 3 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. 3)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, AB 1301 Page 4 b) Is not motivated in whole or substantially in part by an intent to reduce the participation of voters from a protected class. 4)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. 5)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. 6)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. 7)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 AB 1301 Page 5 action in superior court to compel the political subdivision to satisfy the requirements of this bill. 8)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. FISCAL EFFECT: According to the Assembly Appropriations Committee: 1)The SOS anticipates that there will be no additional workload associated with 2) a) and 2) d) above, and at most minor annual workload associated with 2) b). Regarding 2) c), the sponsor - the Mexican American Legal Defense and Educational Fund) - estimates that 25 counties, 30 cities, and 332 school districts experienced the requisite population growth between 2000 and 2010. The SOS estimates that around 150 of these jurisdictions will submit redistricting proposals for review following the 2020 census. For this workload, the SOS will need three attorneys and one analyst position at an annual General Fund (GF) cost of around $600,000. These positions should not be needed until after release of the 2020 census, and following each subsequent census, and will be needed for a few years as local entities submit their redistricting proposals. Given the temporal nature of this workload, limited term or contracted positions would be appropriate. One of the attorney positions would likely be needed for an extended time in the event of any legal challenges to the SOS's decisions. The SOS will also require expertise in statistical analysis at a one-time GF cost of $200,000. AB 1301 Page 6 2)To the extent local entities seek judicial review of SOS decisions regarding redistricting proposals, the Sacramento County Superior Court could require an attorney, clerk, and support staff at an annual cost of $300,000. Again, this workload would commence after 2020 and continue for up to a few years. COMMENTS: 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? "[T]his 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." The 15th Amendment to the United States 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." In 1965, Congress determined that state officials were failing to comply with the provisions of the 15th Amendment. As a result, Congress passed and President Johnson signed the federal Voting Rights Act (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 United States Department of AB 1301 Page 7 Justice (DOJ) or the United States 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 VRA Section 5 is commonly referred to as a "preclearance" requirement. On June 25, 2013, the United States 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. In California, the Counties of Kings, Monterey, and Yuba were covered by the preclearance requirements because of compliance with certain state laws in effect at the time (including English-only ballots). 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 United States DOJ. 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. 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 AB 1301 Page 8 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 the political subdivision in question has engaged in discriminatory practices or otherwise has low or unrepresentative voter participation. Please see the policy committee analysis for a full discussion of this bill. GOVERNOR'S VETO MESSAGE: This bill would establish a state "pre-clearance" system under which certain political subdivisions are required to obtain approval from the Secretary of State before implementing policy changes related to elections. AB 1301 Page 9 While I agree that the impairment of key provisions in the federal Voting Rights Act deserves a national remedy, I am unconvinced that a California-only pre-clearance system is needed. Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094 FN: 0002521