BILL ANALYSIS
AB 2330
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2330 (Arambula) - As Amended: April 12, 2010
SUBJECT : California Voting Rights Act of 2001. URGENCY.
SUMMARY : Prohibits a voter from bringing an action against a
county office of education (office) or a school district
(district) for an alleged violation of the California Voting
Rights Act of 2001 (CVRA) unless the voter has first presented a
written claim to the office or district. Eliminates the ability
of a voter to recover attorney's fees and litigation costs if
the office or district accepts the voter's claim. Specifically,
this bill :
1)Requires a voter, prior to bringing an action against an
office or district for an alleged violation of the CVRA, to
present a written claim to the office or district not later
than 120 days prior to the date of the election that is the
subject of the claim. Requires the written claim to contain
all of the following:
a) The name and address of the claimant;
b) A description of the circumstances which gave rise to
the claim;
c) The relief requested by the claimant; and,
d) The signature of the claimant.
2)Permits a voter to file an action against an office or
district if the office or district does not respond to the
voter's written claim within 30 days.
3)Requires an office or district, when responding to a claim, to
notify the claimant whether it accepts the claim, rejects the
claim, or proposes to resolve the claim by relief not
requested by the claimant.
4)Requires the claimant, if the office or district proposes
relief not requested by the claimant, to notify the office or
district within 30 days after notification of the proposed
AB 2330
Page 2
relief whether the claimant accepts or rejects the proposed
relief. Requires the claimant to notify the office or
district that he or she rejects the proposed relief before
filing an action against the office or district.
5)Prohibits a claimant from recovering attorney's fees and
litigation costs from the office or district if the office or
district accepts the claim or if the claimant accepts
alternate relief proposed by the office or district.
6)Makes various findings and declarations about the CVRA.
7)Contains an urgency clause.
AB 2330
Page 3
EXISTING LAW :
1)Prohibits, pursuant to the CVRA, 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 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.
2)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.
3)Requires the occurrence of racially polarized voting to be
determined from examining results of elections in which at
least one candidate is a member of a protected class or
elections involving ballot measures, or other electoral
choices that affect the rights and privileges of members of a
protected class.
4)Requires a court, upon finding a violation of the CVRA, to
implement appropriate remedies, including the imposition of
district-based elections, that 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.
6)Permits a prevailing plaintiff party in an action brought
under the CVRA, other than the state or political subdivision
thereof, to recover reasonable attorney's fees and litigation
expenses including, but not limited to, expert witness fees
and expenses. Prohibits a prevailing defendant party from
recovering any costs unless the court finds the action to be
frivolous, unreasonable, or without foundation.
FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
AB 2330
Page 4
1)Purpose of the Bill : According to the author:
Current law does not provide a clear means, except for the
option of litigation, for a community member to petition
their local governing body to alter the election system.
This bill is not an attempt to modify or circumvent the
[CVRA]. AB 2330 provides a clear process for seeking
changes to an election system under the CVRA, while
maintaining the intent of the original legislation. This
process avoids unnecessary legal challenges, if both sides
can reach an agreement, and help save limited school
dollars and resources. In contrast, should a solution that
is agreeable to both parties not be reached at the end of
the process, the parties may still challenge the election
by filing a suit against the local governing body.
Legal precedence for a similar process can be found in the
Ralph M. Brown Act for open meetings, the Government Tort
Claims Act, and, as of recently, the Americans with
Disabilities Act. These provide community member[s] with
the opportunity to seek redress from districts for a
violation, prior to the filing of a legal challenge. This
process is beneficial to all parties involved; result[ing]
in savings on legal fees and in a faster resolution.
2)CVRA Background : 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 usually votes for majority candidates rather
than for minority candidates. 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.
The CVRA specifically provided for a prevailing plaintiff party
to have the ability to recover attorney's fees and litigation
expenses to increase the likelihood that attorneys would be
willing to bring challenges under the law. Because of the
extensive expert analysis of election results that can be
required to demonstrate that racially polarized voting is
occurring in a jurisdiction, and thus to establish that a
violation of the CVRA has occurred, the CVRA explicitly
AB 2330
Page 5
provides that expert witness fees are among the litigation
expenses that can be recovered.
3)Constitutional Challenges to the CVRA : The first case brought
under the CVRA was filed two years after Governor Davis signed
SB 976. In June 2004, Latino voters living in the city of
Modesto filed a lawsuit in the Superior Court of Stanislaus
County alleging that Modesto's at-large elections for city
council seats violated the CVRA. The lawsuit noted that
although more than a quarter of Modesto's 200,000 residents
were Latinos, only one Latino had been elected to the city
council since 1911.
The City of Modesto moved to have the challenge thrown out on
the grounds that the CVRA was invalid under the equal
protection clauses of the state and federal Constitutions.
The Stanislaus Superior Court agreed, ruling that the CVRA was
facially invalid - that is, that the law would be invalid in
any conceivable application. The plaintiffs appealed to the
Fifth District Court of Appeals, which reversed the Superior
Court's ruling in Sanchez v. City of Modesto (2006) 145
Cal.App.4th 660, and found that the CVRA was not facially
invalid. The City of Modesto then appealed to the California
Supreme Court and subsequently to the United States Supreme
Court, both of which declined to hear the appeal. After the
United States Supreme Court announced that it would not hear
the city's appeal in October 2007 and after Modesto voters
approved a ballot measure in February 2008 to move to
district-based elections for city council, the city settled
with the plaintiffs and agreed to pay $3 million in legal fees
to the attorneys for the plaintiffs.
4)Suits Filed Under the CVRA : Committee staff is aware of just
five lawsuits that have been filed under the CVRA. As noted
above, the first suit brought under the CVRA against the City
of Modesto in June 2004 resulted in a challenge to the
constitutionality of the CVRA that lasted more than three
years. The second suit filed under the CVRA was filed just a
month later against the Hanford Union High School District,
which settled with the plaintiffs and converted to a
by-district election system.
Between the time that the Stanislaus Superior Court ruled that
the CVRA was unconstitutional and the time that the United
States Supreme Court declined to hear Modesto's appeal of the
AB 2330
Page 6
Appellate Court ruling that upheld the law, just one suit was
filed under the law, against the Tulare Health Care District.
That case is scheduled to go to trial in June of this year.
Two other cases were filed in 2008 against the Ceres Unified
School District and against the Madera Unified School
District.
Although the committee is aware of only five lawsuits that have
been filed under the CVRA since its passage, press reports
indicate that a much larger number of jurisdictions have
switched from at-large elections to district elections in part
due to concern that those jurisdictions could face a lawsuit
under the CVRA.
5)Arguments in Support : Supporters of this bill argue that the
CVRA should provide some explicit method for a community to
petition their local governing body to change from an at-large
method of election to a district based election before a
lawsuit can be filed under the CVRA so that unnecessary
litigation can be avoided. Supporters express concern that
districts that are willing to switch from at-large elections
to district-based elections may nonetheless be liable for
significant attorney fees and expert witness costs under suits
brought pursuant to the CVRA, and argue that when a school
district is forced to spend money on legal fees, that further
strains already limited school district budgets. The
supporters argue that the process that would be created by
this bill is similar to processes that already exist under the
Ralph M. Brown Act, the Government Tort Claims Act, and the
Americans with Disabilities Act.
Finally, the supporters of this bill argue that, by creating a
"meet and confer" process for claims brought under the CVRA,
this bill can streamline the process for claims under the CVRA
to be resolved, thereby furthering the purposes of the CVRA.
6)Arguments in Opposition : Opponents of this bill believe that
it is inappropriate to require a voter to file a written claim
against a district at least 120 days in advance of an
election, and argue that it is inappropriate to force an
election to go forward using an election system that dilutes
the votes of minority voters simply because a voter became
aware of his or her legal rights less than 120 days prior to
an election. Instead, the opponents argue that local judges
are best positioned to determine whether the harms of any
AB 2330
Page 7
potential disruption of a scheduled election would outweigh
the harms of holding that election using a system that may
dilute the votes of minority voters.
Additionally, opponents argue that it is unnecessary to impose a
30 day written notice period before a plaintiff may file a
lawsuit against a local jurisdiction because such a period
already exists in practice. According to the opponents, under
the California Supreme Court's decision in Graham v.
DaimlerChrysler Corporation (2004) 34 Cal.4th 553, an attorney
will not be able to recover legal or expert witness fees if a
jurisdiction settles a lawsuit shortly after the suit is filed
unless the attorney has reasonably attempted to settle the
matter prior to initiating litigation. As a result, the
opponents argue that attorneys who file lawsuits under the
CVRA will provide notice to districts before filing suit under
the CVRA so that they do not lose the option of being able to
recover attorneys' fees. Additionally, opponents are
concerned that the written notice requirements could create a
legal avenue for a jurisdiction to drag-out discussions with a
potential plaintiff before a lawsuit could be filed, thereby
slowing relief from an at-large election system that dilutes
the votes of minorities.
Finally, opponents argue that concerns about districts facing
large legal bills even when they are willing to convert to
district-based election systems are overblown, noting that
significant legal fees have been paid in only two cases (the
Modesto case described above and the Madera Unified School
District Case) where there has been protracted litigation and
where the defendant either fought attempts to convert to
district-based elections or where the defendant failed to
engage in attempts to resolve a claim prior to a lawsuit being
filed.
7)Double-Referral : This bill has been double-referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California School Administrators (co-sponsor)
California School Boards Association (co-sponsor)
Central Union Elementary School District
AB 2330
Page 8
Central Valley Education Coalition
Fresno Unified School District
Lee Anderson, Merced County Superintendent of Schools
Opposition
American Civil Liberties Union
Asian Americans for Civil Rights and Equality
Lawyers' Committee for Civil Rights
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094