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