BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Norma J. Torres, Chair
BILL NO: SB 1365 HEARING DATE: 4/22/14
AUTHOR: PADILLA ANALYSIS BY: Darren Chesin
AMENDED: 4/21/14
FISCAL: YES
SUBJECT
California Voting Rights Act of 2001
DESCRIPTION
Existing law provides that the governing boards of local
political subdivisions (i.e., cities, counties, and school or
other districts) are generally elected by all of the voters of
the political subdivision (at-large) or from districts formed
within the political subdivision (district-based) or some
combination thereof.
Existing law generally permits the voters of the entire local
political subdivision to determine via ballot measure whether
the governing board is elected at-large or by districts. The
process for placing one of these measures on the ballot varies
according to the type of jurisdiction.
Existing law , pursuant to the California Voting Rights Act of
2001 (CVRA), prohibits the use of an at-large election in a
political subdivision if it would impair the ability of a
protected class, as defined, to elect candidates of its choice
or otherwise influence the outcome of an election. The CVRA, SB
976 (Polanco), Chapter 129 of 2002, established criteria by
which local at-large elections may be found to have abridged the
rights of certain voters and allows for remedies. The CVRA
further provides for all of the following:
That voter rights have been abridged 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.
"Racially polarized voting" is defined as voting in which
there is a difference in the choice of candidates or other
electoral choices that are preferred by voters in a protected
class, and in the choice of candidates and electoral choices
that are preferred by voters in the rest of the electorate.
Proof of intent on the part of voters or elected officials to
discriminate against a protected class is not required in
order for a court to find a violation of the CVRA, and that
the fact that members of a protected class are not
geographically compact or concentrated may not preclude a
finding of racially polarized voting.
Upon a finding of racially polarized voting the court must
implement appropriate remedies, including the imposition of
district-based elections and provides reasonable attorney fees
and litigation expenses for the prevailing plaintiff party in
an enforcement action. Prevailing defendant parties may not
recover any costs, unless the court finds the action to be
frivolous, unreasonable, or without foundation.
Any voter who is a member of a protected class and who resides
in a political subdivision that is accused of a violation of
the CVRA may to file an action in the superior court of the
county in which the political subdivision is located.
This bill would additionally and similarly prohibit the use of a
district-based election in a political subdivision if it would
impair the ability of a protected class to elect candidates of
its choice or otherwise influence the outcome of an election as
a result of the dilution or the abridgment of the rights of
voters who are members of a protected class and would require a
court to implement specified remedies upon such a finding as
follows:
The court shall implement appropriate remedies that are
tailored to remedy the violation and that are guided in part
by the views of the protected class.
If reasonably feasible, the court shall implement, as an
appropriate remedy a redistricting plan that provides the
protected class the opportunity to elect candidates of its
choice.
If such a redistricting plan is not reasonably feasible, the
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court shall implement, as an appropriate remedy a
redistricting plan that provides the protected class the
opportunity to join with a coalition of groups to elect
candidates of their choice.
A redistricting plan implemented under this provision shall
comply with all applicable state and federal laws.
This bill would provide that, in addition to implementing a
redistricting plan under the aforementioned provision, a court
may implement additional remedies if a redistricting plan is not
reasonably feasible, including, but not limited to:
Increasing the size of the governing body.
Issuing an injunction to delay an election.
Requiring an election to be held on the same day as a
statewide election.
This bill does not prohibit the parties from settling a dispute
arising under these provisions. If the parties agree to settle
such a dispute, the parties shall consider the remedies provided
for in this bill when negotiating a settlement agreement.
BACKGROUND
At-Large Elections Jurisprudence . Most cities and school or
other districts in California elect their governing boards using
an at-large election system. The exceptions, those that elect
by district, tend to be large cities and school districts.
One of the most frequently cited reasons for changing from
at-large to district elections is the need to overcome a history
or pattern of racial inequity. In some instances, election by
districts may actually be required by the federal Voting Rights
Act. In Gomez v. City of Watsonville (1988), the United States
Supreme Court affirmed that the at-large elections of city
council members in Watsonville, California had diluted the
voting strength of the minority community, and ordered the city
to switch to single-member district elections. In Thornburg v.
Gingles (1986), the Supreme Court announced three preconditions
that a plaintiff first must establish to prove such a claim.
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The plaintiffs in the Watsonville case were successful in
establishing these conditions, which were:
The minority community was sufficiently concentrated
geographically that it was possible to create a district in
which the minority could elect its own candidate.
The minority community was politically cohesive, in that
minority voters usually supported minority candidates.
There was racially polarized voting among the majority
community, which usually (but not necessarily always), voted
for majority candidates rather than for the minority
candidates.
More on the California Voting Rights Act . The CVRA was enacted
by the Legislature as SB 976 (Polanco), Chapter 129 of 2002.
The CVRA established criteria by which local at-large elections
may be found to have abridged the rights of certain voters and
allows for remedies.
The CVRA provides that voter rights have been abridged 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. "Racially polarized voting" is
defined as voting in which there is a difference in the choice
of candidates or other electoral choices that are preferred by
voters in a protected class, and in the choice of candidates and
electoral choices that are preferred by voters in the rest of
the electorate.
Proof of intent on the part of voters or elected officials to
discriminate against a protected class is not required in order
for a court to find a violation of the CVRA, and that the fact
that members of a protected class are not geographically compact
or concentrated may not preclude a finding of racially polarized
voting.
Upon a finding of racially polarized voting the court must
implement appropriate remedies, including the imposition of
district-based elections and provides reasonable attorney fees
and litigation expenses for the prevailing plaintiff party in an
enforcement action. Prevailing defendant parties may not
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recover any costs, unless the court finds the action to be
frivolous, unreasonable, or without foundation.
Any voter who is a member of a protected class and who resides
in a political subdivision that is accused of a violation of the
CVRA may file an action in the superior court of the county in
which the political subdivision is located.
Since its enactment, the CVRA has been used to successfully
challenge at-large elections in numerous local jurisdictions
throughout California.
Voting Rights Act of 1965 and Shelby County v. Holder . The 15th
Amendment to the U.S. Constitution provides, in part, that
"[t]he right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any state on
account of race, color, or previous conditions of servitude."
Additionally, the 15th Amendment authorizes Congress to enact
legislation to enforce its provisions. The 15th Amendment was
ratified in February 1870.
In 1965, Congress determined that state officials were failing
to comply with the provisions of the 15th Amendment.
Congressional hearings found that litigation to eliminate
discriminatory practices was largely ineffective because state
and local jurisdictions would institute new discriminatory
practices to replace any such practices that were struck down in
court. As a result, Congress passed and President Johnson
signed the VRA. The VRA, among other provisions, prohibits any
"voting qualification or prerequisite to voting or standard,
practice, or procedure" from being imposed by any "State or
political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color."
Section 2 of the VRA is a nationwide prohibition against voting
practices and procedures, including redistricting plans and
at-large election systems, poll worker hiring, and voting
registration procedures, that discriminate on the basis of race,
color, or membership in a language minority group. Section 2
allows the U.S. Attorney General (AG), as well as affected
private citizens, to bring lawsuits in federal court to
challenge practices that may violate the VRA. Section 4 of the
VRA sets the criteria for determining whether a jurisdiction is
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covered under certain provisions of the VRA, including the
requirement for review of changes affecting voting under Section
5. Section 5 of the VRA requires certain states and covered
jurisdictions to receive approval for any changes to law and
practices affecting voting from the U.S. Department of Justice
(DOJ) or the U.S. District Court of the District of Colombia to
ensure that the changes do not have the purpose or effect of
"denying or abridging the right to vote on account of race or
color." The requirement to obtain approval under Section 5 is
commonly referred to as a "preclearance" requirement.
While much of the VRA is permanent, certain special provisions
of the VRA are temporary, including Section 5. When the VRA was
enacted, Section 5 was scheduled to expire in five years.
Subsequently, Congress extended those provisions for another
five years in 1970, an additional seven years in 1975, and an
additional 25 years in 1982, and again for an additional 25
years in 2006. As a result, Section 5 currently is scheduled to
expire in 2031.
In April 2010, Shelby County in Alabama filed suit in the U.S.
District Court for the District of Columbia challenging the
constitutionality of Section 5 of the VRA, and of the coverage
formulas contained in Section 4(b) of the VRA. Because the
State of Alabama was covered under the preclearance requirements
of Section 5, Shelby County was also covered as a political
subdivision of Alabama. In the lawsuit, Shelby County contends
that Congress exceeded its authority under the 15th Amendment
and thus violated the 10th Amendment and Article IV of the U.S.
Constitution when it voted to reauthorize Section 5 without
changing or updating the formulas that determined which
jurisdictions were covered under Section 5. The District Court
rejected Shelby County's arguments, and upheld the
constitutionality of the Section 5 reauthorization and the
coverage formulas contained in Section 4(b). On appeal, the
U.S. Court of Appeals for the District of Columbia Circuit
affirmed the ruling of the District Court, and Shelby County
subsequently appealed to the U.S. Supreme Court.
On June 25, 2013, the U.S. Supreme Court, in Shelby County v.
Holder , held that the coverage formula in Section 4(b) of the
VRA is unconstitutional and can no longer be used as a basis for
subjecting jurisdictions to preclearance under Section 5 of the
VRA. The Court stated that although the formula was rational
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and necessary at the time of its enactment, it is no longer
responsive to current conditions. The Court, however, did not
strike down Section 5, which contains the preclearance
conditions. Without Section 4(b), however, no jurisdiction will
be subject to Section 5 preclearance unless Congress enacts a
new coverage formula.
The effect of the Shelby County decision is that the
jurisdictions identified by the coverage formula in Section 4(b)
no longer need to seek preclearance from the U.S. AG or the U.S.
District Court for the District of Columbia before implementing
new voting changes, unless they are covered by a separate court
order entered under Section 3(c) of the VRA.
All or specific portions of the following states were required
to have their voting changes precleared before the U.S. Supreme
Court decision in Shelby : Alabama, Alaska, Arizona, Florida,
Georgia, Louisiana, Michigan, Mississippi, New Hampshire, New
York, North Carolina, South Carolina, South Dakota, Texas, and
Virginia. Also included were the California counties of Kings,
Monterey, and Yuba. Merced County previously was subject to the
preclearance requirement, but it successfully bailed out from
Section 5 coverage last year through a court approved consent
decree negotiated with the U.S. DOJ.
According to the U.S. DOJ, the ruling in Shelby County does not
affect Section 3(c) of the VRA. Jurisdictions covered by a
preclearance requirement pursuant to court orders under Section
3(c) remain subject to the terms of those court orders.
Additionally, the Supreme Court's decision states that Section 2
of the VRA, which prohibits discrimination in voting based on
race or language minority status, and which applies on a
permanent nationwide basis, is unaffected by the decision.
Likewise, other provisions of the VRA that prohibit
discrimination in voting remain in full force and effect, as do
other federal laws that protect voting rights, including the
Uniformed and Overseas Citizens Absentee Voting Act, the
National Voter Registration Act, and the Help America Vote Act.
COMMENTS
1.According to the Lawyers' Committee for Civil Rights of the
San Francisco Bay Area : SB 1365 is essential to guaranteeing
that all Californians can exercise their fundamental right to
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vote. It also ensures fair representation and accountability
in the democratic process at the local level throughout
California, ensuring that all eligible voters enjoy an equal
opportunity to elect candidates of their choice. The CVRA was
designed to safeguard the right to vote against unlawful
discrimination and vote dilution under the California
Constitution. It also aimed to empower California citizens to
challenge unlawful vote dilution in local at-large election
systems where racially polarized voting exists. The CVRA has
played an essential role in ensuring local government
compliance with state and federal voting rights protections
against unlawful vote dilution in at-large election systems.
The problem is that vote dilution can occur under many
different types of voting systems, but only at-large systems
can currently be challenged for vote dilution as a violation
under the CVRA.
Since 2003, over 140 cities, counties, school districts, and
other municipal districts have sought to change from at-large
to single-member district-based election systems, in part, to
comply with the CVRA. However, where these jurisdictions draw
new district lines in ways that dilute the votes of
historically marginalized voters, such as African American,
Asian American, Latina/o or Native American voters, California
communities will undoubtedly continue to suffer from unlawful
vote dilution.
Currently, no remedy exists under California state law to cure
vote dilution in single member district-based election
systems. That a jurisdiction might draw districts that cause
vote dilution after changing from an at-large system to a
district-based election system renders the CVRA ineffective in
achieving its primary goal - to safeguard equal protection and
an equal right to vote under the California Constitution.
Commonsense amendments are needed to improve the effectiveness
of our state voting rights laws to address the ongoing problem
of vote dilution. SB 1365 addresses these immediate concerns.
First, SB 1365 clarifies that its purpose is to address
ongoing vote dilution and discrimination as matters of
statewide concern in order to protect the fundamental right to
vote and enforce equal protection, as guaranteed under the
California Constitution. Second, SB 1365 addresses the harm
caused by racial polarization and vote dilution in
single-member district-based systems. Lastly, SB 1365
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provides clearer guidance for judges and courts on how to
design appropriate remedies for voting rights violations in
order to ensure that jurisdictions do not continue to dilute
the votes and the voices of protected communities after
jurisdictions make a decision to change their election
systems.
Section 2 federal Voting Rights Act cases, which also address
some forms of vote dilution in single-member district-based
systems, are prohibitively expensive, often take many years to
resolve, and are rarely successful if brought at all - all of
which is not helpful for communities seeking immediate relief.
SB 1365 would provide stronger protections and incentivize
immediate relief where little to none is currently available
for historically marginalized communities, as many communities
do not have the resources to bring a federal claim. Current
federal voting rights protections are not strong enough to
combat racially polarized voting and unlawful vote dilution as
they persist at the local levels throughout California today.
Stronger voting rights protections are therefore necessary
under state law.
2.What is a permissible "coalition of groups ?" This bill
provides that a court may implement, as an appropriate remedy,
a redistricting plan that provides a protected class the
opportunity to join with a coalition of groups to elect
candidates of their choice. Neither this bill nor existing
law defines "coalition of groups" for the purpose of
implementing this provision. It is unclear how a court would
measure or determine the ability of a coalition to elect
candidates of their choice. It is also unclear what type of
"groups" could be included in such a coalition. Should
"groups" be limited to groups of different protected classes,
minority language groups, or other ethnic groups? Or is it
the author's intent to permit other types of groups to be part
of these coalitions such as members of the same political
parties or other political and/or ideological organizations?
3.Potential Conflicts with Existing Law . This bill would
provide that, in addition to implementing a redistricting
plan, a court may implement additional remedies, including,
increasing the size of the governing body, issuing an
injunction to delay an election, and requiring an election to
be held on the same day as a statewide election. Depending on
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the type of jurisdiction in question, some or all of these
options may conflict with other existing provisions of state
law governing these subjects. For instance, existing law
prescribes the number of city council members that may be
elected by or from districts. Existing law also provides that
requests to consolidate certain local elections with statewide
election dates shall be approved by the board of supervisors
unless the ballot style, voting equipment, or computer
capability is such that additional elections or materials
cannot be handled.
POSITIONS
Sponsors:American Civil Liberties Union (ACLU)
Asian Americans Advancing Justice (AAAJ)
Lawyers' Committee for Civil Rights
Mexican American Legal Defense and Education Fund
(MALDEF)
National Association for the Advancement of Colored
People (NAACP)
National Association of Latino Elected and Appointed
Officials Educational
Fund (NALEO)
Law offices of Robert Rubin
Support: California Latino Legislative Caucus
Oppose: None received
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