BILL ANALYSIS
AB 2330
Page 1
Date of Hearing: May 4, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2330 (Arambula) - As Amended: April 27, 2010
SUBJECT : VOTING RIGHTS VIOLATIONS: SCHOOL DISTRICTS
KEY ISSUE : SHOULD SELECTED LOCAL GOVERNMENTS HAVE SPECIAL
PROTECTION AGAINST LAW SUITS SEEKING TO ENFORCE THE OBLIGATIONS
OF THE CALIFORNIA VOTING RIGHTS ACT?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill would add two new requirements to the California
Voting Rights Act (CVRA) for a select group of school districts,
community college districts and county offices of education. It
would require that, uniquely for these districts, a voter must
file a written claim with the local government entity prior to
bringing legal action to enforce the CVRA. If the district
agreed to remedy the violation, the claimant would be precluded
from recovering attorney's fees and expert witness costs. The
CVRA is concerned with racially polarized voting in at-large
elections for local office. In areas where racial block voting
occurs, an at-large method of election can dilute the voting
rights of minority communities. Creating by-trustee districts
can allow opportunities for a minority community to elect the
candidate of its choice or otherwise have the ability to
influence the outcome of an election. Despite initial
resistance and legal battles, all sides appear to agree that
school districts are now increasingly coming into compliance
with the CVRA. Some argue that this is evidence that the law is
working. Supporters, however, argue that this bill would allow
school districts to save scarce public funds for educational
programs, rather than lawyer's fees, when they are willing to
comply with the law. Despite the author's evident good
intentions, the bill has generated opposition from civil rights
advocates who contend that it is unnecessary, marks a
substantial departure from existing policy for a select
sub-group, will have many unintended negative consequences for
voting rights enforcement, and represents a troubling precedent
for civil rights law.
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SUMMARY : Imposes new limits on enforcement of state voting
rights law for selected local government educational districts
by prohibiting an action by a voter to enforce the obligations
of the California Voting Rights Act (CVRA) against a
non-complying school district (district), county office of
education (office) or community college district (community
college) unless the voter has first presented a written claim to
the district, office or community college. Specifically, this
bill :
1)Requires a voter, prior to bringing an action against an
office, district or community college for a violation of the
CVRA, to present a written claim to the office, district or
community college 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 (presumably
excluding legal fees);
d) A timeline for compliance with the relief requested;
and,
e) The signature of the claimant.
2)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.
3)Requires the claimant, if the office or district proposes
relief not requested by the claimant, to notify the office,
district or community college within 30 days after
notification of the proposed relief whether the claimant
accepts or rejects the proposed relief. Requires the claimant
to notify the office, district or community college that he or
she rejects the proposed relief before filing an action.
4)Permits a voter to file an action against an office, district
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or community college if it wholly fails to respond to the
voter's written claim within 30 days.
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.
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 a 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. (Elections Code
Section 14025 et seq. All future statutory references are to
this code unless otherwise noted.)
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. (Id.)
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. (Id.)
4)Requires a court, upon finding a violation of the CVRA, to
implement appropriate remedies, including the imposition of a
district-based election, tailored to remedy the violation.
(Id.)
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. (Id.)
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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. (Id.)
COMMENTS : 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.
This bill is jointly sponsored by the California School Boards
Association (CSBA) and the Association of California School
Administrators (ACSA). The sponsors contend that the bill
"maintains all the protections in the original CVRA; and
establishes a meet and confer period prior to a legal challenge
of a school districts' governing body at-large election system."
They further argue:
The bill provides a clear process and expedited resolution
with the establishment of timelines for a school district
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to respond to a petitioner's claim. The process is
intended to avoid a lengthy legal battle when an agreement
can be reached. Current law does not provide a clear
process, except the option of litigation, for a community
to petition their local governing body to alter the
election system.
Legal precedence for a similar process, established by this
bill, can be found in the Ralph M. Brown Act and the
Government Tort Claims Act. It also furthers the purposes
of the act by providing for an expedited resolution with
the establishment of timelines for a school district to
respond to claims. This process is intended to avoid a
lengthy and costly legal battle when an agreement can be
reached.
Over the last year dozens of districts and cities,
primarily in the San Joaquin Valley area, have received
requests to move to by-trustee elections. Despite a
willingness to switch to by-trustee elections, local
governments are still liable for attorney fees and expert
witness costs. School districts and county offices with
already strained budgets are being forced to spend vital
resources on attorney's fees rather than on students and
schools.
The California Voting Rights Act Was A Long-Sought Achievement
To Address Racial Block Voting In At-Large Elections. The CVRA
was enacted by SB 976 (Polanco) 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, creating by-trustee
districts can allow opportunities for a minority community to
elect the candidate of its choice or otherwise have the ability
to influence the outcome of an election.
Prior to the CVRA, concern about racial block voting lead to the
introduction of numerous bills to outlaw at-large election
schemes - particularly by school and community college
districts. (See, e.g., AB 8 (Cardenas) of 1999 (seeking to
eliminate the at-large election system within the Los Angeles
Community College District; AB 172 (Firebaugh) of 1999
(prohibiting at-large elections for specified K-12 school
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districts.) The CVRA followed those unsuccessful efforts,
eschewing a mandate that any political subdivision convert
at-large districts to single-member districts in favor of a rule
that prohibits at-large election systems from being used to
dilute or abridge the rights of voters in protected classes,
apropos of the federal Voting Rights Act.
Like the federal Voting Rights Act on which it was modeled, the
CVRA specifically provides for a prevailing plaintiff party to
have the ability to recover attorney's fees and litigation
expenses to increase the likelihood that minority voters will
have the capacity to enforce 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 provides that expert witness
fees are among the litigation expenses that can be recovered.
After Initial Resistance, The CRVA Has Recently Appeared To Be
Largely Successful In Prompting Conversion To Single-Member
Districts. 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 responded not by challenging the plaintiff's
evidence, but by attacking the law itself, moving to have the
case thrown out on the grounds that the CVRA was invalid under
the equal protection clauses of the state and federal
Constitutions. A local judge of 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
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district-based elections for city council, the city settled with
the plaintiffs and agreed to pay the plaintiffs $3 million in
legal fees.
A Few Targeted Cases; Far More Voluntary Compliance Efforts.
Despite concerns about the costs of litigation diverting scarce
resources from educational operations, the bills supporters and
opponents agree that there have apparently been just five cases
brought in the years since enactment of the CVRA, all of which
have been pursued by just one organization - the Lawyers
Committee for Civil Rights of San Francisco. Only 3 of these
cases have involved a school district (none of which has
involved a community college district). Perhaps surprisingly,
supporters and opponents of this bill also agree that none of
these cases has been frivolous or unmerited. Indeed, the
sponsors acknowledge that in the years following the CVRA there
was initially widespread non-compliance, although both
supporters and opponents agree that there has recently been
significant voluntary movement from at-large to districts-based
election plans.
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, and was
quickly settled by conversion to a by-district election system
with minimal attorney's fees and costs. A similar case was
filed against the Ceres Unified School District and settled even
more quickly by the creation of single-member districts and,
notably, without a demand for attorney's fees.
In the two remaining cases, the defendants took another tack -
vigorously contesting the allegations. According to press
reports, the Madera Unified School District is two-thirds
Latino, yet the school board has only one Latino member. Madera
Unified apparently did not respond to two pre-suit demand
letters by the plaintiffs. It then fought the case and lost,
with a preliminary injunction issued in 2008. As a result, the
plaintiff's filed a pending request for attorney's fees of
approximately $1.2 million. (The method by which attorney's
fees requests are evaluated is discussed below.)
Madera's example, however, may have sparked other districts to
action. According to a Los Angeles Times report, 28 of 32
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nearby school districts voluntarily decided to switch to
district elections in the wake of the court's order. (Madera
Unified Case is Changing Elections Throughout California, Los
Angeles Times, Jan. 4, 2009.) A similar phenomenon is reported
by the State Board of Education, which is empowered to grant
waivers to school districts wishing to bypass a requirement for
voter approval before switching from at-large to district-based
elections. According to the California Department of Education
(CDE), there were no such requests in 2007, 1 in 2008, and 15 in
2009. The CDE reports that all requests have been granted.
Representative of these are three waiver requests on the Board's
meeting agenda this week from school and community college
districts in Fresno County, stating: "A number of districts in
California are facing existing or potential litigation under the
California Voting Rights Act of 2001 over their at-large
election systems. To help protect itself from potential
litigation, the [applicant] is taking action to establish new
trustee areas and adopt trustee-area election processes." (See
State Board of Education agenda, May 5-7, 2010 (available at
http://www.cde.ca.gov/be/ag/ag/yr10/agenda201005.asp)(items W-21
to W-23).)
The only other lawsuit involves the Tulare Health Care District,
which has likewise been contested by the defendant. A trial is
scheduled for this summer.
If The Law Now Seems To Be Having The Desired Affect, Might This
Bill Inadvertently Discourage Voluntary Compliance Efforts By
Protecting Districts From Attorney's Fees And Thereby Removing
Any Incentive To Comply Unless And Until The Specified Written
Demand Is Filed? Under the bill, a school district would face
no penalty for failure to comply with the law unless and until a
written demand were filed. Supporters believe this approach
provides school districts an opportunity to avoid unnecessary
legal costs when they wish to voluntarily comply.
Unfortunately, the bill might potentially have the inadvertent
consequence of diminishing the existing incentives to promptly
conform to the requirements of the CVRA because districts would
be immune from liability and legal fees unless and until a
written demand were submitted.
Conversely, If This Bill Were Passed Would School Districts
Potentially Be Deceived Into Believing That They Were Exempt
From Attorney's Fees Liability Under The Federal Voting Rights
Act? The CVRA is a separate and independent obligation under
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state law. However, it has a corollary in the federal Voting
Rights Act of 1965 that also requires the creation of
single-member districts to address racially polarized voting,
and provides for the recovery of the plaintiff's attorney's
fees. Because state law cannot affect federal obligations,
school districts covered by this bill would remain subject to
federal requirements and the potential imposition of attorney's
fees regardless of any prior written demand or willingness to
settle. Exempting school districts from the CVRA therefore may
simply create an unfortunate misimpression that could leave them
with a false sense of security regarding their exposure to legal
fees.
The Bill Requires Preparation Of A Written Claim That Would
Appear To Require The Assistance Of An Attorney - Assistance
That Paradoxically May Be Unavailable Because The Bill Allows
Districts To Avoid All Attorney's Fees By Settling The Case.
Under the bill, no voter could file suit unless he or she had
first made a written presentation to the district detailing the
nature of the claim. While the precise requirements of this
provision are not well delineated in the bill, the intent is
presumably to give the district a thorough understanding of the
basis for the alleged violation in order to determine the
validity of the case. Detail would seem to be particularly
important because the bill allows districts only 30 days to make
a decision whether to accept or reject the claim - a period of
time that appears to be too brief to permit the district to
conduct its own analysis without some substantial information
provided by the claimant. Indeed, the sponsor acknowledges that
many school boards only meet once per month, so unusually prompt
action would be needed.
To compile the information necessary to make this presentation
would appear to require the skills of a lawyer knowledgeable
about this specialized area of the law as well as a statistician
to analyze voting and demographic data. However, this
assistance is unlikely to be available if the attorney knows
that neither she nor the expert she retains would be compensated
for their work. The combination of these two features therefore
may have the inadvertent effect of ensuring that few claims are
presented, meaning that the law would go largely un-enforced.
If on the other hand the claim process is not intended to
require much evidence, the bill would appear to be of little
value by giving districts vague and general notices that would
not allow them to assess the need to change the elections
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practices.
Might This Bill Inadvertently Allow For Collusive Claims? The
bill states that "Prior to bringing an action against [a covered
district] district ? a voter must present a written claim?." If
such a claim is presented but the district does not respond at
all or to the claimant's satisfaction the claimant may file a
law suit. This provision raises an answered question whether a
district is protected against all litigation once any claim has
been filed and settled. Districts presumably would want such
protection in order to avoid being hit with multiple claims.
Blocking all future law suits based on a single settlement,
however, creates the possibility that an unscrupulous district
could collude with a friendly claimant to strike a deal that
does not afford full and appropriate relief.
The Attorney's Fees Rule Proposed By This Bill Differs From The
Specific Attorney's Fees Standard Adopted By The CVRA, Arising
Out of A Landmark Civil Rights Case Involving A School District.
The Legislature was very specific about the attorney's fees
standard to be followed under the CVRA. Rather than relying on
the private attorney general statute or a general provision
allowing reasonable attorney's fees, the statute expressly
incorporates by reference "the standards established in Serrano
v. Priest (1977) 20 Cal.3d 25, 48-49." Serrano was a landmark
civil rights case establishing fundamental rules of education
funding equity. It gave rise to the private attorney general
attorney's fees statute, Code of Civil Procedure section 1021.5.
By referencing the case specifically, rather than the statute
adopted to implement the case, the Legislature evidently
intended to ensure that the common law standard be followed.
Serrano does not provide for the defense against attorney's fees
this bill would create.
If School Districts Were Given Special Treatment Under The CVRA,
Might Other Similarly-Situated Local Governments Seek The Same
Protection? As introduced, this bill applied equally to all
jurisdictions covered by the CVRA. The author amended the bill
first to limit it to school districts and county offices of
education, noting that they have been hard hit by budget cuts
and thus should be protected against unnecessary legal fees for
violating the CVRA. The bill was recently amended in the other
direction, to include community college districts, presumably
for the same important goal, although there appears to be no
record of litigation against community college districts. Of
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course, many local governments, as well as the state itself,
face serious financial difficulties providing police, fire,
health care, child protective services and a host of core
governmental functions, and might well have an equally valid
claim to avoiding legal fees in the interest of saving scarce
public funds. Ironically, the school districts that have saved
the most money in CVRA attorney's fees costs are those like the
Fresno County districts discussed above that have voluntarily
complied without the necessity of a law suit.
If School Districts Are Given Special Protection Against
Attorney's Fees For CVRA Violations, Is There A Logical Basis On
Which To Prevent This Principle From Expanding To Other Legal
Claims? The Committee has not been told how much money has been
paid in attorney's fees by school districts in CVRA cases, or
what percentage that might be of all the funds spent by school
districts in response to lawsuits. It seems likely however that
other legal claims account for a greater proportion of school
districts' legal budgets. If the rationale for this bill is to
save money for essential schoolroom functions, it is not clear
how this principle would be limited to CVRA claims if the bill
were passed.
No other civil rights statute currently follows the approach
this bill urges for voting rights, although it has been
previously proposed for disability access violations. (See,
e.g., AB 2594 (Leslie) of 2004; AB 2533 (Keene) of 2008.) These
bills were vigorously opposed by civil rights groups, in part
because they singled-out one law and one group for different
treatment and represented a troubling departure from traditional
enforcement schemes. These measures failed passage in this
Committee; similar Senate bills have been defeated in the Senate
Judiciary Committee. If this bill were adopted, it seems likely
that a similar approach might arguably be warranted for other
civil rights laws.
ARGUMENTS IN SUPPORT : As set out above, 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's fees and expert witness costs under suits
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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. 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.
ARGUMENTS IN OPPOSITION : The Committee received letters of
opposition from a number of organizations concerned with voting
rights, some of which are excerpted below.
The Lawyers' Committee for Civil Rights (LCCR) argues that the
bill is unnecessary and inappropriate. LCCR states:
The California Voting Rights Act (CVRA) allows minority
communities to challenge discriminatory election systems
that dilute their right to vote. Patterned on the
federal Voting Rights Act, the CVRA authorizes these
communities to seek judicial remedies such as conversion of
racially polarized at-large election systems into
by-district systems that are fairer and allow communities
to elect candidates of their choice. AB2330 would impair
the ability of voters to obtain these remedies.
The bill addresses a problem that doesn't exist and imposes
unwarranted restrictions on the ability of minority
communities to challenge unlawful election systems and cure
the vote dilutive effects of discriminatory election
systems.
Having created a cause of action for voters to challenge
discriminatory election systems, the Legislature should not
now erect barriers for those seeking such remedies.
In sum, the bill seeks to accomplish a goal already in
place and otherwise, usurps the proper role of a judge. It
should be opposed and defeated.
The National Association of Latino Elected and Appointed
Officials (NALEO) Educational Fund also opposes the bill,
arguing that it "would impose unnecessary restrictions on the
ability of Latinos and other underrepresented groups to pursue
remedies for discriminatory election systems that deprive them
of opportunities to achieve fair political representation."
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They go on to state, "Based on our extensive experience in
educating, engaging, and protecting the rights of Latino voters,
we are deeply concerned that AB 2330 will create unwarranted
obstacles for Latinos who challenge discriminatory election
practices of education districts in the state."
NALEO Educational Fund concludes, "[T]he requirements of AB 2330
deter jurisdictions from taking proactive steps to investigate
whether their election systems violate the CVRA and take
remedial action before a legal challenge is threatened. We
believe the existing provisions of the CVRA help encourage
jurisdictions to proactively examine their election systems,
determine whether they comply with the CVRA, and work to make
changes that will provide Latinos and other underrepresented
groups fair electoral opportunities."
Public Advocates notes that it was a lead counsel in Williams v.
California, which resulted in the 2004 landmark settlement
establishing minimum standards in basic educational
opportunities and resources, and was also counsel in Serrano v.
Priest, which ordered California to fund schools equally. "The
California Voting Rights Act was intended to eliminate
discriminatory barriers to political participation. At-large
election systems, where racially polarized voting patterns
exist, result in minority voters' inability to elect their
representatives of choice. Fortunately, the CVRA has played a
significant role in eliminating these barriers. The Assembly
has recently re-emphasized its commitment to the rights of
public school parents and families to participate in their
children's school improvement efforts. The rights of Latino,
African American and language minority parents, grandparents,
and family members to participate in their children's schools
would be undermined if their rights to elect representatives of
their choice were also restricted. The CVRA has been effective
in opening opportunities to greater participation in political
processes, including school governance and decision making."
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California School Administrators (co-sponsor)
California School Boards Association (co-sponsor)
Central Union Elementary School District
Central Valley Education Coalition
Clovis Unified School District
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Community College League of California
Fresno Unified School District
Golden Valley Unified School District
Small School Districts' Association
Opposition
American Civil Liberties Union
Asian Americans for Civil Rights and Equality
Lawyers' Committee for Civil Rights
National Association of Latino Elected and Appointed Officials
Educational Fund
Mexican American Legal Defense and Educational Fund
Public Advocates
Analysis Prepared by : Kevin G. Baker and Eunie Kim / JUD. /
(916) 319-2334