BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 493


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          Date of Hearing:  July 1, 2015 


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          SB  
          493 (Cannella) - As Amended April 20, 2015


          SENATE VOTE:  29-3


          SUBJECT:  Elections in cities: by or from districts.


          SUMMARY:  Permits a city to change the method of electing  
          council members to a by-district method of election without  
          receiving voter approval.  Specifically, this bill permits the  
          legislative body of a city to adopt an ordinance, without being  
          required to submit the ordinance to the voters for approval,  
          that requires members of the legislative body to be elected in  
          one of the following ways:





          1)By districts, in five, seven, or nine districts; or,



          2)By districts in four, six, or eight districts, with a mayor  
            who is elected citywide.









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          EXISTING LAW:   


          1)Permits a city to submit an ordinance to the voters of the  
            city to provide for city council members to be elected in any  
            of the following ways:

             a)   By districts, in five, seven, or nine districts;

             b)   From districts, in five, seven, or nine districts;

             c)   By districts, in four, six, or eight districts, with a  
               mayor who is elected citywide; or,

             d)   From districts, in four, six, or eight districts, with a  
               mayor who is elected citywide. 

            Provides that such a change shall occur only upon the approval  
            of voters.  Provides that the term "by districts," for the  
            purposes of this provision, means the election of members by  
            voters of the district alone; provides that "from districts"  
            means the election of members who are residents of the  
            districts from which they are elected, but who are elected by  
            voters of the city as a whole.

          2)Prohibits, pursuant to the California Voting Rights Act of  
            2001 (CVRA), an at-large method of election from being imposed  
            or applied in a political subdivision (including a city) in a  
            manner that impairs the ability of a protected class of voters  
            to elect the candidate of its choice or its ability to  
            influence the outcome of an election, as a result of the  
            dilution or the abridgement of the rights of voters who are  
            members of a protected class.

          3)Provides that a violation of the CVRA may be established if it  









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            is shown that racially polarized voting occurs in elections  
            for members of the governing body of the political subdivision  
            or in elections incorporating other electoral choices by the  
            voters of the political subdivision.

          4)Requires a court, upon finding a violation of the CVRA, to  
            implement appropriate remedies, including the imposition of  
            district-based elections, which are tailored to remedy the  
            violation.

          5)Permits any voter who is a member of a protected class and who  
            resides in a political subdivision where a violation of the  
            CVRA is alleged to file an action in the superior court of the  
            county in which the political subdivision is located.

          FISCAL EFFECT:  None.  This bill is keyed non-fiscal by the  
          Legislative Counsel.


          COMMENTS:  


          1)Purpose of the Bill:  According to the author:

          Since 2003, California cities using at-large elections  
          methods have become subject to lawsuits asserting  
          violations of the California Voting Rights Act and  
          demanding by-district elections be implemented.  For a city  
          facing such a suit, the options are limited - they can  
          either [1] submit an ordinance making this change to the  
          voters for approval, which is expensive, slow, and not  
          guaranteed to win approval, or [2] accept the lawsuit,  
          which they are bound to lose, costing taxpayer money in  
          legal fees.  SB 493 proposes to save cities this time and  
          money by permitting them to enact an ordinance switching  
          their election method to by-district without submitting it  
          for voter approval.









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          2)At-Large vs. District Elections:  Under existing law, a city  
            can be organized so that members of the city council are  
            elected at-large or are elected using districts.  In cities  
            that have districts, the city can be organized such that the  
            registered voters in the entire city vote for councilmembers  
            from each of the districts (known as "from district"  
            elections), or the city can be organized so that only the  
            registered voters in a district vote in the election to choose  
            the councilmember from that area (known as "by district"  
            elections).  In either case, a candidate for the city council  
            must reside in the district in which he or she is running.

          For any city that wishes to move from at-large elections to a  
            district-based method of election, existing law requires the  
            voters of the city to approve the change.  If the voters  
            reject the proposed change, the city must continue holding  
            elections using an at-large method of election.



          3)California Voting Rights Act of 2001: SB 976 (Polanco),  
            Chapter 129, Statutes of 2002, enacted the CVRA to address  
            racial block voting in at-large elections for local office in  
            California.  In areas where racial block voting occurs, an  
            at-large method of election can dilute the voting rights of  
            minority communities if the majority typically votes to  
            support candidates that differ from the candidates who are  
            preferred by minority communities.  In such situations,  
            breaking a jurisdiction up into districts can result in  
            districts in which a minority community can elect the  
            candidate of its choice or otherwise have the ability to  
            influence the outcome of an election.  Accordingly, the CVRA  
            prohibits an at-large method of election from being imposed or  
            applied in a political subdivision in a manner that impairs  









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            the ability of a protected class of voters to elect the  
            candidate of its choice or to influence the outcome of an  
            election, as a result of the dilution or the abridgement of  
            the rights of voters who are members of the protected class.



            The first case brought under the CVRA was filed in 2004, and  
            the jurisdiction that was the target of that case-the City of  
            Modesto-challenged the constitutionality of the law.   
            Ultimately, the City of Modesto appealed that case all the way  
            to the United States Supreme Court, which rejected the city's  
            appeal in October 2007.  The legal uncertainty surrounding the  
            CVRA may have limited the impacts of that law in the first  
            five years after its passage.  


            Since the case in Modesto was resolved, however, many local  
            jurisdictions have converted or are in the process of  
            converting from an at-large method of election to  
            district-based elections due to the CVRA.  



            Generally, local government bodies must receive voter approval  
            to move from an at-large method of election to a  
            district-based method of election for selecting governing  
            board members.  This voter approval requirement can make it  
            difficult for jurisdictions to proactively transition to  
            district-based elections in order to address potential  
            liability under the CVRA.  If a jurisdiction attempts to  
            transition from at-large to district-based elections to  
            address CVRA concerns, but the voters reject the proposal, the  
            jurisdiction nonetheless remains subject to a lawsuit under  
            the CVRA.  Furthermore, to the extent that there is racially  
            polarized voting on the question of whether to transition from  
            at-large to district-based elections, the results of the vote  









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            on that question could provide further evidence for a lawsuit  
            under the CVRA.  As a result, many jurisdictions have sought  
            ways to transition from at-large to district-based elections  
            without having to receive voter approval for such a change.  

            Most notably, many school districts have transitioned from  
            at-large to district-based elections without receiving voter  
            approval in an effort to avoid potential liability under the  
            CVRA.  Even though state law generally requires such a  
            transition to be approved by the voters in a school district,  
            existing law also permits the State Board of Education (SBE)  
            to waive all or part of any section of the Education Code,  
            with certain identified exceptions, upon request by the  
            governing board of a school district or county board of  
            education.  The SBE generally is required to approve any and  
            all requests for waivers unless it makes a finding that one of  
            seven enumerated conditions exists.  Since 2009, the SBE has  
            approved waivers to permit approximately 110 school districts  
            to change from at-large to district elections without  
            receiving voter approval, as would otherwise be required by  
            the Education Code.

            Furthermore, in response to concerns that community college  
            districts were subject to liability under the CVRA but were  
            unable to change from at-large to district-based elections  
            without voter approval, AB 684 (Block), Chapter 614, Statutes  
            of 2011, established a process under which a community college  
            district could transition from at-large to district-based  
            elections without receiving voter approval if such a  
            transition was approved by the Board of Governors (BOG) of the  
            California Community Colleges, among other provisions.  Since  
            the enactment of AB 684, the BOG has approved requests from  
            approximately 20 community college districts to change from  
            at-large to district elections.

            Unlike school districts and community college districts,  
            however, no formal process exists for cities to transition  









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            from at-large to district-based elections without receiving  
            voter approval.  (A few cities have transitioned from at-large  
            to district-based elections without receiving voter approval  
            as a part of settlement agreements to lawsuits brought under  
            the CVRA.)  This bill would allow cities to transition to  
            district-based elections without receiving voter approval,  
            which could allow cities that potentially face liability under  
            the CVRA to proactively change the method of electing city  
            council members.  Unlike the waiver process that applies for  
            school districts and community college districts, this bill  
            would not require any other entity to approve a city's request  
            to change from at-large to district-based elections without  
            receiving voter approval.  However, there is no statewide body  
            that has general oversight authority over all of the state's  
            cities that is comparable to the authority that the SBE has  
            over school districts, and that the BOG has over community  
            college districts.
          4)Change in Election Method Not Related to CVRA Issues and  
            Potential Amendments:  Although the author's intent for this  
            bill is to make it easier for cities to proactively respond to  
            potential liability under the CVRA, this bill could also  
            bypass the voter approval requirement for changes in the  
            method of electing city council members that are unrelated to  
            CVRA concerns.  For example, if a city currently elects its  
            council members by districts, and the city council wants to  
            increase the number of members on the council from five to  
            nine, this bill would permit such a change to occur without  
            voter approval, even though voter approval would be required  
            under existing law.  Similarly, a city council could move from  
            electing seven council members by districts to electing six  
            council members by districts with an elective mayor without  
            the approval of voters.  

          AB 182 (Alejo), which is pending in the Senate, proposes to  
            expand the CVRA to allow challenges to district-based  
            elections to be brought under the CVRA.  If AB 182 becomes  
            law, it's possible that a city might need to expand the number  









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            of members on the city council in order to address potential  
            liability under that bill.  

          In order to ensure that this bill is not used to bypass voter  
            approval requirements in situations where CVRA concerns are  
            not relevant while preserving flexibility for cities in the  
            event that the CVRA is expanded, as proposed by pending  
            legislation, the committee and the author may wish to consider  
            an amendment to require a city council that changes the method  
            of electing members pursuant to this bill to make findings and  
            declarations when adopting the ordinance that the changes are  
            being made in furtherance of the purposes of the CVRA.

          5)Arguments in Support:  In support of this bill, the League of  
            California Cities writes:



          Since the passage of the [CVRA], entities using at-large  
          elections have faced an ever-increasing number of lawsuits  
          asserting that racially polarized voting is occurring  
          within their boundaries and demanding that district-based  
          elections be implemented.  Courts have found for the  
          plaintiffs in all of the cases where racially polarized  
          voting has been proven.  Remedies have included the  
          consolidation of elections, cumulative voting and  
          district-based elections.



          While remedies have varied by jurisdiction, what has been  
          consistent in CVRA cases is the high cost for litigation.   
          The CVRA provides generous recovery for attorney's fees.   
          As a consequence, cities have incurred extremely high legal  
          fees-from the several hundred thousand to several million  
          dollars.










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          Cities' sole alternative to going to court: seeking voter  
          approval.  Elections are costly too, however. Cities like  
          Turlock and Woodland spent significant time and money  
          ensuring that their residents understood the CVRA and the  
          consequences of their votes.  It's equally important to  
          note that cities are not insulated from suit if their  
          voters reject district-based elections.  That's the case  
          for the City of Highlands, now tied up in litigation after  
          voters rejected district elections there?.

          The League believes SB 493 will give cities a much-needed  
          tool for addressing concerns under the CVRA in an efficient  
          and cost-effective manner.

          6)Amendments Sought:  Californians for Electoral Reform, which  
            has a "support if amended" position on this bill, writes:

          While we appreciate the intent of [SB 493], we are  
          concerned that it does not recognize that, in some cases,  
          modified at-large systems such as cumulative voting,  
          limited voting, and the single-transferrable vote can  
          result in better representation for the electorate than  
          produced by a district system?.



          There are three electoral methods that provide protected  
          classes the opportunity for their fair share of  
          representation when districts cannot. These are the  
          fully-proportional method of the single-transferrable vote  
          and the semi-proportional methods of cumulative voting and  
          limited voting. We would be fully supportive of SB 493 if  
          it recognized these systems and put them on equal footing  
          with a district system by allowing a city to switch to them  
          without a vote of the people.
            Notwithstanding the concern that a district-based method of  
            election may not address voting rights concerns in all  









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            circumstances, the amendments proposed by Californians for  
            Electoral Reform would represent a fundamental change in this  
            bill, by authorizing the use of certain methods of election  
            (single-transferrable vote, cumulative voting, and limited  
            voting) that are not currently permitted to be used in public  
            elections under state law.  (The City of Santa Clarita reached  
            a settlement agreement in a CVRA lawsuit in which the City  
            agreed to use cumulative voting to address the voting rights  
            issues raised in the lawsuit, and the Superior Court in that  
            case subsequently authorized the use of cumulative voting in  
            the City.  Notwithstanding that settlement agreement, however,  
            state statute does not generally permit single-transferrable  
            vote, cumulative voting, or limited voting to be used in  
            public elections.)



            Because those methods of election are not explicitly permitted  
            under existing law, state law does not define those methods of  
            election or contain procedures for conducting elections using  
            those methods of election.  By contrast, the current  
            provisions of this bill simply allow cities, without receiving  
            voter approval, to transition between methods of election that  
            are already explicitly provided for under state law.  The  
            authorization of the use of single-transferrable vote,  
            cumulative voting, and limited voting for elections in  
            California may present policy questions that are not addressed  
            in this analysis.
          7)Related Legislation: AB 278 (Roger Hernández), which is  
            pending in the Senate, requires general law cities with a  
            population of 100,000 or more, as specified, to elect members  
            of the city council by district.  AB 278 was approved by this  
            committee on a 4-1 vote, and was approved by the Assembly on a  
            43-32 vote.

          8)Double-Referral:  This bill has been double-referred to the  
            Assembly Committee on Local Government.









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          REGISTERED SUPPORT / OPPOSITION:




          Support


          Advancement Project


          Californians for Electoral Reform (if amended)


          City of Ceres


          City of Greenfield


          City of Modesto


          Greater Merced Chamber of Commerce


          Latino Community Roundtable of Stanislaus County


          League of California Cities




          Opposition









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          None on file.




          Analysis Prepared by:Ethan Jones / E. & R. / (916)  
          319-2094