BILL ANALYSIS �
AB 2646
Page 1
Date of Hearing: August 28, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2646 (Ting) - As Amended: August 13, 2014
FOR CONCURRENCE
SUBJECT : POLITICAL STRUCTURE EQUAL PROTECTION
KEY ISSUE : SHOULD MINORITY RIGHTS BE PROTECTED AGAINST
ALTERATION OF THE POLICY DECISION-MAKING PROCESS WITH RESPECT TO
THE ENACTMENT OF FUTURE LEGISLATION?
SYNOPSIS
Under the 14th Amendment of the U.S. Constitution, the equal
protection clause protects against acts that distort
governmental processes in such a way as to place special burdens
on the ability of minority groups to achieve beneficial
legislation. This longstanding "structural equal protection"
doctrine has served to invalidate inferior state and local
enactments that have the effect of altering, restructuring, or
reordering the policy decision-making process in a manner that
burdens the ability of members of the minority group to effect
the enactment of future legislation, solely with respect to a
matter that inures primarily to the benefit of, or is primarily
of interest to, one or more minority groups. California courts
have not had occasion to decide whether this principle also
applies under the cognate equal protection clause of the state
constitution. This bill finds and declares that the California
constitution should be so interpreted, and would enact a
comparable rule by statute. Supporters representing civil
rights advocates argue that the measure will help protect the
rights of all Californians against potential abuse of the
political process regarding minority groups who have no other
recourse to assert their rights. The bill has no known
opposition.
SUMMARY : Generally prohibits a statute, ordinance, or other
state or local rule, regulation, or enactment from denying a
minority group structural equal protection of the law.
Specifically, this bill :
1)Provides that a statute, ordinance, or other state or local
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rule, regulation, or enactment shall not deny a minority group
political structure equal protection of the law by altering,
restructuring, or reordering the policy decision-making
process in a manner that burdens the ability of members of the
minority group to effect the enactment of future legislation,
solely with respect to a matter that inures primarily to the
benefit of, or is primarily of interest to, one or more
minority groups.
2)Provides that a statute, ordinance, or other state or local
rule, regulation, or enactment shall be determined valid in an
action brought pursuant to this bill, only upon a showing by
the government that the burden imposed by the statute,
ordinance, or other state or local rule, regulation or
enactment satisfies both of the following criteria:
a) The burden is necessary to serve a compelling government
interest; and
b) The burden is no greater than necessary to serve the
compelling government interest.
3)Defines "minority group" to mean a group of persons who share
in common any race, ethnicity, nationality, or sexual
orientation.
4)Includes various findings and declarations, including, among
others:
a) The United States Supreme Court has interpreted the
Equal Protection Clause as disfavoring and subjecting to
"strict scrutiny" state and local laws that (i) target a
suspect classification of persons, (ii) restrict a
fundamental right, or (iii) alter the political
policymaking process with respect to an issue of primary
concern to a minority group or groups. This last doctrine
is commonly referred to as "structural equal protection."
b) The doctrine of political structure equal protection was
established primarily through two United States Supreme
Court decisions, Hunter v. Erickson (1969) 393 U.S. 385,
and Washington v. Seattle School District No. 1 (1982) 458
U.S. 457. As a result, this doctrine has also been
referred to as the "Hunter/Seattle" doctrine. In the
recent case of Schuette v. BAMN, et. al. (2014) 134 S. Ct.
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1623, the United States Supreme Court has further
interpreted the structural equal protection doctrine,
although the implications of this new interpretation are
not yet clear.
c) The Legislature believes that California Constitution
Article 1 Section 7, provides broader protection of
individual liberties and rights than the Equal Protection
Clause of the 14th Amendment of the United States
Constitution, and these broader protections should include
the political structure equal protection doctrine, as
interpreted prior to Schuette v. BAMN.
d) Independent of the guarantees afforded by the California
Constitution, the Legislature believes that the
Hunter/Seattle doctrine provides a prudent and salutary
rule for statutory protection against discriminatory
statutes, ordinances, or other state or local rules,
regulations, or enactments.
EXISTING LAW :
1)Provides that all persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside,
that no State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws. (U.S. Const., 14th Amend., Sec. 1.)
2)Provides that the 14th Amendment does not tolerate "a
political structure that treats all individuals as equals, yet
more subtly distorts governmental processes in such a way as
to place special burdens on the ability of minority groups to
achieve beneficial legislation." (Washington v. Seattle School
Dist. No. 1 (1982) 458 U. S. 457, 467 (internal quotations
omitted).) Such restructuring, "is no more permissible than
denying [the minority] the [right to] vote, on an equal basis
with others." (Hunter v. Erickson (1969) 393 U. S. 385, 391.)
3)Provides that a person may not be deprived of life, liberty,
or property without due process of law or denied equal
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protection of the laws; provided, that nothing contained
herein or elsewhere in this Constitution imposes upon the
State of California or any public entity, board, or official
any obligations or responsibilities which exceed those imposed
by the Equal Protection Clause of the 14th Amendment to the
United States Constitution with respect to the use of pupil
school assignment or pupil transportation. (Cal. Const., art.
I, Sec. 7.)
4)Prohibits the State from discriminating against, or granting
preferential treatment to, any individual or group on the
basis of race, sex, color, ethnicity, or national origin in
the operation of public employment, public education, or
public contracting, except as specified. (Cal. Const., art.
I, Sec. 31.)
5)Provides that Section 31 of the California Constitution
"prohibits race- and gender-conscious programs the federal
equal protection clause permits but does not require. 'Equal
protection allows discrimination and preferential treatment
whenever a court determines they are justified by a compelling
state interest and are narrowly tailored to address an
identified remedial need.' In contrast, "section 31
categorically prohibits discrimination and preferential
treatment. Its literal language admits no 'compelling state
interest' exception [and] we find nothing to suggest the
voters intended to include one sub silentio.' Section 31
poses no obstacle, however, to race- or gender-conscious
measures required by federal law or the federal Constitution.
This is the inescapable effect of the supremacy clause (U.S.
Const., art. VI, cl. 2), which section 31 implicitly
acknowledges in a savings clause." (Coral Construction Inc.
v. City of San Francisco (2010) 50 Cal.4th 315, 327.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : The author explains the bill as follows:
The California Constitution and the U.S. Constitution
protect individuals from being denied equal protection of
the law. The classic interpretation of the equal
protection clause is to protect individuals from
discriminatory governmental actions and laws. However, the
U.S. Supreme Court has also determined that the equal
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protection clause is intended to apply when a law does not
appear discriminatory outright. The U.S. Supreme Court has
struck down laws that intentionally restructured the
political process to place a unique burden on a minority
group's ability to exercise their democratic rights on
particular issues of importance.
Because the structural equal protection doctrine was
established as part of the Equal Protection Clause of the
14th Amendment of the U.S. Constitution, there has not been
need or occasion for the California Supreme Court to
determine whether the California Constitution, through its
own guarantee of equal protection of the laws, also
includes structural equal protection. Since the California
Constitution goes at least as far as the U.S. Constitution
in protecting individual rights and liberties and in some
cases has been interpreted to go beyond the U.S.
Constitution in providing such protections, the guarantee
of structural equal protection, which has been a part of
the U.S. Constitution for nearly 50 years, should be
appropriately recognized in California state law. Such
recognition is especially important in California, a state
with a robust initiative process, since the doctrine has
historically been invoked after voters alter the political
process in a manner that disadvantages a minority group.
In support of the bill, co-sponsors MALDEF and the California
Civil Rights Coalition state:
Our state and federal constitutions protect individuals
from discriminatory governmental actions and laws through
the equal protection clause. However, the U.S. Supreme
Court has also determined that the equal protection clause
applies when a law does not appear discriminatory outright.
In Hunter v. Erickson (1969) and Washington v. Seattle
School District No.1 (1982), the U.S. Supreme Court struck
down laws that intentionally restructured the political
process to place a unique burden on a minority group's
ability to exercise their democratic rights on particular
issues of importance. These two cases have set forth the
"Hunter/Seattle" or "structural equal protection" doctrine.
AB 2646 would extend the structural equal protection
doctrine to California state law. Such recognition is
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necessary to guarantee that California law protects
individual rights and liberties on equal footing with the
U.S. Constitution. This bill will help protect the rights
of all Californians because our robust initiative process
often has targeted minority groups. Since an initiative,
in most cases, can only be undone or revisited through a
court or another initiative, direct democracy not only has
the power to take away rights, but also to fundamentally
alter the political process for some minority groups who
have no other recourse to assert their rights. This bill
will preserve a mechanism through which all minority groups
can challenge laws that infringe on their constitutional
right of equal access to the political process.
This Bill Prohibits Acts That Deprive a Minority Group of Equal
Protection Under the Political Structure Doctrine. This bill
prohibits a statute, ordinance, or other state or local rule,
regulation, or enactment from denying a minority group
structural equal protection of the law by altering,
restructuring, or reordering the policy decision-making process
in a manner that burdens the ability of members of the minority
group to effect the enactment of future legislation, solely with
respect to a matter that inures primarily to the benefit of, or
is primarily of interest to, one or more minority groups. The
bill provides that a statute, ordinance, or other state or local
rule, regulation, or enactment shall be determined valid in an
action brought pursuant to this bill, only upon a showing by the
government that the burden imposed by the statute, ordinance, or
other state or local rule, regulation or enactment satisfies
both of the following criteria: 1) the burden is necessary to
serve a compelling government interest; and 2) the burden is no
greater than necessary to serve the compelling government
interest.
Overview of Structural Equal Protection. The Equal Protection
Clause of the 14th Amendment of the United States Constitution
provides that no state shall deny to any person within its
jurisdiction equal protection of the laws. The clause requires
that persons under like circumstances be given equal protection
and security in the enjoyment of personal and civil rights, the
acquisition and enjoyment of property, the enforcement of
contracts, and the prevention and redress of wrongs, and that
they be subject to similar taxes and penalties. At the same
time, federal equal protection case law allows discrimination or
preferential treatment when a court has determined that it is
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justified by a compelling state interest, and the discrimination
or preferential treatment is narrowly tailored to address that
interest. (8 Witkin Summary of California Law Constitutional
Law Sections 967 (citing Coral Construction Inc. v. City of San
Francisco (2010) 50 Cal.4th 315, 327) and 695.)
In a series of cases over the past 45 years, the equal
protection clause of the 14th Amendment has been recognized to
prohibit acts that distort governmental processes in such a way
as to place special burdens on the ability of minority groups to
achieve beneficial legislation. The first of these cases is
Hunter v. Erickson (1969) 393 U. S. 385, 391 in which the United
States Supreme Court declared unconstitutional a local
government initiative that was adopted by referendum to repeal
open housing laws and require voter approval of any such future
laws regulating real estate transactions "on the basis of race,
color, religion, national origin or ancestry" by a majority of
electors on the question at a regular or general election before
any such ordinance would be effective. (Id. at 389.) The
United States Supreme Court found that this was an "explicitly
racial classification treating racial housing matters
differently than other racial and housing matters" (as blacks,
much more than whites, were obviously harmed by creating
obstacles to enactment of open housing laws), and thereby
invalidated the ordinance under the 14th Amendment. (Id.)
In Washington v. Seattle School District No. 1 (1982) 458 U.S.
457 the United States Supreme Court likewise invalidated a
Washington initiative that provided that no school board could
require any student to attend a school other than the school
geographically nearest or next nearest to the student's
residence. The challenged initiative thereby precluded students
from being assigned for the purposes of desegregation, and by
purposefully frustrating desegregation efforts, the initiative
was held to be in violation of the 14th Amendment because "[the
initiative] uses the racial nature of an issue to define the
governmental decision-making structure and thus imposes
substantial and unique burdens on racial minorities." As in
Hunter v. Erickson, the Washington law "remove[d] the authority
to address a racial problem - and only a racial problem - from
the existing decision making body, in such a way as to burden
minority interest." (Id. at 474.)
As a result of the Hunter and Seattle cases, courts have come to
recognize a "political structure doctrine" (also referred to as
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"political structure equal protection.") "The 'political
structure' doctrine that emerges from these decisions is perhaps
best summarized in the Washington v. Seattle School District No.
1 majority's statement that 'the 14th Amendment ? reaches 'a
political structure that treats all individuals as equals,' ?
yet more subtly distorts governmental processes in such a way as
to place special burdens on the ability of minority groups to
achieve beneficial legislation.'" (Coral Construction Inc. v.
City of San Francisco.) Under the Hunter/Seattle doctrine an
act will be subject to the strictest judicial scrutiny if it
singles out issues that are particularly associated with
minority interests; and 2) the law imposes an unfair political
process burden by entrenching resolution of such matters in a
political process where minorities are less able to succeed.
(V. Amar and E. Caminker, the Hunter Doctrine and Proposition
209: A Reply to Thomas Wood (1997) 24 Hastings Constitutional
Law Quarterly 1010, p. 1003.)
Relationship to The California Constitution. Of course it is
not the function of the Legislature to interpret the
Constitution, but this bill does not propose to do so. It would
instead enact a statute that would serve to invalidate state
regulations and local initiative measures such as those in the
Hunter and Seattle cases if the challengers make the necessary
showing of impact on minority rights and the court finds that
there is no compelling governmental interest or one that could
be satisfied by a less burdensome alternative. With respect to
state laws, the resolution of conflicts between them and this
statute is less clear, although it is presumably within the
province of the Legislature to adopt a rule by which other
enactments must comply when they have the effect of infringing
the specified minority rights, particularly with respect to
previously-adopted statutes. The findings and declarations in
the bill would, at a minimum, moreover, serve as a statement of
the Legislature's policy preference for consideration by the
courts in the recognition of the political structure equal
protection doctrine under the California Constitution. The bill
would have no effect, naturally, on amendments to the
Constitution enacted by the people.
REGISTERED SUPPORT / OPPOSITION :
Support
California Civil Rights Coalition (co-sponsor)
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MALDEF (co-sponsor)
Anti-Defamation League
Asian Americans Advancing Justice - Asian Law Caucus
Chinese for Affirmative Action
Dolores Huerta Foundation
Equal Justice Society
Legal Services for Prisoners with Children
NAACP - San Diego Chapter
NARAL
National Center for Lesbian Rights
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334