BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 927


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          Date of Hearing:   June 29, 2016


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                                Shirley Weber, Chair


          SB  
          927 (Anderson) - As Amended March 31, 2016


          SENATE VOTE:  38-0


          SUBJECT:  Public Utility District Act:  election of directors.


          SUMMARY:  Authorizes the board of directors of a public utility  
          district (PUD) within San Diego County to elect directors by  
          subdistricts, as specified.  Specifically, this bill:  


          1)Authorizes the candidates for director of any PUD, wholly or  
            partially within San Diego County, to be elected at-large or  
            by subdistricts upon adoption of a resolution or ordinance  
            adopted by the district's board of directors and approved by  
            the board of supervisors, or as part of a change of  
            organization or reorganization conducted pursuant to the  
            Cortese-Knox-Hertzberg Local Government Reorganization Act of  
            2000 (CKH Act).   


          2)Requires a resolution or ordinance that divides a district  
            into subdistricts adopted, pursuant to the provisions above,  
            to describe the boundaries of the subdistricts so that the  
            subdistricts are as nearly equal in population as may be.  









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          3)Defines "by subdistricts" to mean the election of members of  
            the board of directors by voters of the subdistrict alone.  


          4)Contains an urgency clause, allowing this bill to take effect  
            immediately upon enactment.


          5)Provides the facts constituting the necessity of an urgency  
            clause are to ensure that the election procedures for PUDs in  
            San Diego County conform to the California Voting Rights Act  
            of 2001 (CVRA), as soon as possible.  


          6)Makes Legislative findings and declarations that a special law  
            is necessary because of the need to bring PUDs in San Diego  
            County into compliance with the CVRA.   


          EXISTING LAW:   


          1)Establishes the Uniform District Election Law which provides  
            that the principal act of a district or agency shall govern  
            whether directors are elected by divisions or by the district  
            at-large.  



          2)Provides definitions for the following terms which govern the  
            election process for most local governments' legislative  
            bodies:



             a)   An "at-large" election allows a voter residing anywhere  
               within the local government's boundaries to vote for any  
               candidate for the governing board;  








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             b)   A "by district" election allows a voter to vote only for  
               a candidate who runs and resides in the same geographical  
               district in which the voter resides; and,  



             c)   A "from district" election allows a voter residing  
               anywhere within a local government's boundaries to vote for  
               any candidate for a local government's governing board, but  
               each candidate must run in the geographical district where  
               he or she resides.  



          3)Prohibits, pursuant to the CVRA, an at-large method of  
            election from being imposed or applied in a political  
            subdivision (including a special district) 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.  



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



          5)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  








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            violation.  



          6)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.  


          7)Establishes the Public Utility District Act (Act) which  
            requires a PUD that lies entirely in one county to have a  
            governing board composed of three directors elected at-large.   
             


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


          COMMENTS:  


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


               Currently, [PUDs] are formed with an at-large model of  
               representation for their directors.  Current law does  
               not provide a mechanism by which [PUDs] can modify  
               their representation to reflect directors that are  
               elected from specific districts.  As such, districts  
               that have previously wanted to change their  
               composition, in response to an agency reorganization  
               or other voting rights concerns, have been required to  
               pursue district specific legislation.  This proposal  
               would allow, not require, a [PUD] located in San Diego  
               County to move from at-large directors to directors  
               elected from specific districts, under specific  
               circumstances.








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          2)Current Practice:  Under existing law, a special district can  
            be organized so that its governing board members are elected  
            at-large or elected using districts.  Jurisdictions that are  
            organized using district-based methods are usually organized  
            as "by-district" or "from-district."  A "by-district"  
            jurisdiction allows only the registered voters in a district  
            to vote in the election to choose the governing board member  
            from that area.  A "from-district" jurisdiction permits  
            registered voters in the entire jurisdiction to vote for  
            governing board members from each of the districts.  In either  
            case, a candidate for the governing board must reside in the  
            district in which he or she is running.


            There is no uniform process for a special district to convert  
            from at-large elections to a district-based method of  
            election.  Current law provides that the principal act of a  
            special district shall govern whether the governing board  
            members are elected by districts or by the district at-large.   
            Moreover, depending on the kind of district and its size,  
            existing law may specify which method of election it is  
            required to use to elect its governing board members, as well  
            as the process for conversion.  





            The principal act for PUDs governs the 54 PUDs in California.   
            The Act authorizes PUDs to maintain the infrastructure to  
            provide electricity, natural gas, water power, heat  
            transportation, telephone service, or the disposition of  
            garbage, sewage, or refuse matter.  Additionally, the Act  
            provides for the formation and governance of PUDs.  Under  
            existing law, PUDs entirely located within one county are  
            governed by a board of directors elected at-large. 









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          3)Previous Legislation:  Current law requires a PUD that is  
            entirely located within one county to be governed by a board  
            of directors that is elected at-large.  As the author mentions  
            above, current law does not provide a mechanism whereby a PUD  
            can modify its representation to reflect directors that are  
            elected from specific districts.  Consequently, if a district  
            desired to change its composition in response to an agency  
            reorganization or voting rights concerns, the district would  
            need to pursue district-specific legislation. 

          In 1980, the Legislature passed and Governor Brown signed AB  
            1410 (Waters), Chapter 63, Statutes of 1980, which authorized  
            Georgetown Divide PUD directors to be elected by wards upon  
            the adoption of a resolution or ordinance by the board of  
            directors dividing the district into wards and fixing the  
            boundaries.  SB 1393 (Senate Local Government Committee),  
            Chapter 939, Statutes of 1994, authorized any PUD, wholly or  
            partially within Placer County, to elect governing board  
            members at-large, by wards, or from wards upon adoption of a  
            resolution or ordinance by the district board of directors and  
            subject to the approval of the board of supervisors or as a  
            part of a change of organization or reorganization pursuant to  
            the CKH Act.  

          Similarly, this bill authorizes a PUD, partially or wholly  
            within San Diego County, to adopt a resolution or ordinance to  
            elect directors by subdistricts, instead of at-large.   
            Specifically, this bill requires the PUD's board of directors  
            to adopt a resolution or ordinance and subsequently requires  
            the San Diego's Board of Supervisors to approve the resolution  
            or ordinance to change the method of election for the district  
            directors.  Additionally, this bill requires the ordinance or  
            resolution to describe the boundaries of the subdistricts so  
            that the subdistricts are as nearly equal in population as may  
            be.  Additionally, this bill authorizes the election of  
            directors by subdistricts as part of a change of organization  
            or reorganization conducted pursuant to the CKH Act.  








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          4)Fallbrook PUD.  The Fallbrook PUD was formed in 1922 to  
            provide water services for residential and agricultural  
            purposes.  Since that time, Fallbrook PUD has significantly  
            expanded and currently has a service boundary of 43.99 square  
            miles and provides retail water, sewer, and recycled water  
            services to approximately 35,000 people residing within its  
            boundaries in northern San Diego County.  Fallbrook PUD is  
            governed by a five-member board elected at-large.  





            A lawsuit was filed against Fallbrook PUD last year in San  
            Diego County Superior Court alleging that the district's  
            at-large board elections violated the CVRA by diluting the  
            voting strength of Latino voters, thereby impairing their  
            ability to participate meaningfully in the political process  
            and to elect candidates of their choice (Juan Atilano, Carmen  
            Cardoso, Jesus Hernandez, Jesus Hernandez Jr., and Jose Huerta  
            v. Fallbrook Public Utility District).  To avoid potentially  
            lengthy and costly litigation, the parties to the lawsuit  
            negotiated a settlement to resolve the claims against  
            Fallbrook PUD.  The settlement agreement, which is enforced by  
            a recent court order, requires Fallbrook PUD to change from an  
            at-large method of election to a by-district method of  
            election where directors are elected from five distinct  
            election districts.  The settlement provides that candidates  
            reside within the district and are elected only by voters  
            residing within that election district in the November 2016  
            election.  Since the settlement was reached, Fallbrook PUD has  
            held public meetings to provide boundaries for the  
            subdistricts and submitted the lines to San Diego County.  













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          5)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  
            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.  
          








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          6)Why Piecemeal Approach?  Background material provided by the  
            author states that the only way in which a PUD may change its  
            method of election is by special legislation or a court order.  
             This bill only applies to PUDs wholly or partially in San  
            Diego County.  If other PUDs in California desire to change  
            their method of election in response to CVRA concerns, the PUD  
            would be required to seek special legislation or risk  
            litigation.  The committee may wish to consider whether this  
            bill should be expanded to apply to other PUDs in California.   

          Moreover, according to proponents of the bill, Fallbrook PUD  
            negotiated a settlement that is enforced by a recent court  
            order and has begun implementing the changes required by the  
            settlement.  Committee staff is unsure whether special  
            legislation is needed as Fallbrook PUD is already in the  
            process of converting its election method to address CVRA  
            concerns.  On the other hand, because this bill allows any PUD  
            that is wholly or partially within San Diego County to utilize  
            this tool to convert from an at-large to a district-based  
            election method, it could theoretically be helpful to other  
            PUDs within San Diego County.  
          7)Arguments in Support.  In support, the Mexican American Legal  
            Defense and Educational Fund writes:


               Current law that governs the formation of public utility  
               districts requires that the members of a board of directors  
               of a public utility district that lie entirely within one  
               county to be elected on an at-large basis, which is how  
               Fallbrook was formed and governed.


          Last year, Fallbrook was sued under the [CVRA] over the usage of  
          at-large districts.  Fallbrook has worked cooperatively with all  
          parties and has settled the lawsuit and is in the process of  
          complying with a court order to move from at-large to  
          district-based governance structure.  SB 927 will provide  








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          Fallbrook with specific statutory authority to move to  
          district-based elections.



          More than 140 local government bodies have transitioned from  
          at-large to district-based elections since the enactment of the  
          CVRA in 2002.  While some jurisdictions did so in response to  
          litigation or threats of litigation, other jurisdictions  
          proactively changed election methods because they believed they  
          could be susceptible to a legal challenge under the CVRA, and  
          they wished to avoid the potential expense of litigation. 





          8)Related Legislation:  AB 2389 (Ridley-Thomas), permits a  
            special district to change the method of electing its  
            governing board members from at-large to a by-district method  
            of election without receiving voter approval.  AB 2389 passed  
            out this committee on a 5-2 vote and was approved by the  
            Assembly on a 59-16 vote.  AB 2389 is pending in Senate  
            Governance and Finance Committee.



          9)Double-Referral:  On June 15, 2016, this bill was approved by  
            the Assembly Local Government Committee on a 9-0 vote.
          REGISTERED SUPPORT / OPPOSITION:




          Support


          Fallbrook Public Utility District (sponsor)









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          Association of California Water Agencies


          California Special Districts Association


          Mexican American Legal Defense and Educational Fund 


          San Diego County Water Authority




          Opposition


          None on file.




          Analysis Prepared by:Nichole Becker / E. & R. / (916)  
          319-2094