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