BILL ANALYSIS �
SB 1365
Page 1
Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 1365 (Padilla) - As Amended: June 16, 2014
SENATE VOTE : 23-11
SUBJECT : California Voting Rights Act of 2001.
SUMMARY : Expands the California Voting Rights Act of 2001
(CVRA) to allow challenges to district-based elections to be
brought under the CVRA, as specified. Specifically, this bill :
1)Prohibits, pursuant to the CVRA, district-based elections from
being imposed or applied in a manner that impairs the ability
of a protected class of voters to elect candidates of its
choice, or its ability to influence the outcome of an
election, as the result of the dilution or abridgement of the
rights of voters who are members of a protected class.
2)Provides that the fact that a district-based election was
imposed on a political subdivision as a result of an action
filed pursuant to the CVRA shall not be a defense to an action
alleging that the district-based elections violate the
provisions of this bill.
3)Requires a court, upon finding that a political subdivision's
district-based elections violate this bill, to implement
appropriate remedies that are tailored to remedy the violation
and that are guided in part by the views of the protected
class.
a) Requires the court to implement an effective
district-based elections system that provides the protected
class the opportunity to elect candidates of its choice
from single-member districts. Provides that if no such
system is possible, the court shall implement a
single-member district-based election system that provides
the protected class the opportunity to join in a coalition
of groups to elect candidates of their choice. Permits a
court to implement additional remedies, including those
outlined below.
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b) Requires a court, if the remedies outlined above in (a)
are not legally viable, to implement other appropriate
remedies, including increasing the size of the governing
body; issuing an injunction to delay an election; or
requiring an election to be held on the same day as a
statewide election.
4)Provides that if the parties to an action brought under this
bill agree to settle a dispute, the parties shall consider the
remedies provided for in this bill when negotiating a
settlement agreement. Provides that this provision does not
limit the remedies available in out-of-court settlements.
5)States that the intent of the Legislature in enacting this
bill is to address ongoing vote dilution and discrimination in
voting as matters of statewide concern, in order to enforce
the fundamental rights guaranteed to California voters under
the California Constitution. Requires the provisions of this
bill to be liberally construed in furtherance of this
legislative intent to eliminate minority vote dilution.
6)Contains a severability clause.
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.
2)Defines "protected class," for the purposes of the CVRA, to
mean a class of voters who are members of a race, color or
language minority group, as this class is referenced and
defined in the federal Voting Rights Act (42 U.S.C. Sec. 1973
et seq.) (VRA).
3)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. Provides that elections
conducted prior to the filing of an action are more probative
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to establish the existence of racially polarized voting than
elections conducted after the filing of the action.
4)Provides that the occurrence of racially polarized voting
shall 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. Provides that one circumstance that may be
considered when determining whether a violation of the CVRA
exists is the extent to which candidates who are members of a
protected class and who are preferred by voters of the
protected class, as determined by an analysis of voting
behavior, have been elected to the governing body of a
political subdivision that is the subject of an action.
5)Provides that the fact that members of a protected class are
not geographically compact or concentrated may not preclude a
finding of racially polarized voting, but may be a factor in
determining an appropriate remedy.
6)Provides that proof of intent on the part of voters or elected
officials to discriminate against a protected class is not
required to find a violation of the CVRA.
7)Requires a court, upon finding that an at-large method of
election violates the CVRA, to implement appropriate remedies,
including the imposition of district-based elections, which
are tailored to remedy the violation.
8)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.
9)Permits a prevailing plaintiff party in an action brought
pursuant to the CVRA to recover reasonable attorney's fees and
litigation expenses, including, but not limited to, expert
witness fees and expenses as part of the costs. Prohibits a
prevailing defendant party from recovering any costs unless
the court finds the action to be frivolous, unreasonable, or
without foundation.
FISCAL EFFECT : None. This bill is keyed non-fiscal by the
Legislative Counsel.
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COMMENTS :
1)Purpose of the Bill : According to the author:
California is blessed to have the most diverse
population in US. One-quarter of California's
population are immigrants who come from across the
globe. In addition, 200 unique languages are spoken
here. The 2010 census made it clear -diversity will
continue to be a trend far into California's future.
Our diversity is an asset that comes with great
responsibility for policymakers.
Protecting the rights of minorities and ensuring equal
and equitable opportunities, must be a priority.
Thirteen years ago, California took the lead in
protecting the voting rights of our diverse population
with passage of the California Voting Rights Act. The
Act sought to end the negative impact that at-large
elections have on voter turnout and equitable
representation.
The result is that dozens of school districts,
community college districts and cities have moved or
are moving to district based elections. However, once
a local government adopts district based elections,
voters lose the protections of the California Voting
Rights Act.
Nothing in state law protects minority voters from
poorly drawn districts. Poorly drawn districts can
have the same negative impact on voter turnout and
equitable representation as at-large elections.
Dividing up minority populations or cramming them into
only one district can weaken their ability to even
influence an election. SB 1365 will create a process,
building on the current California Voting Rights Act,
for the public to challenge poorly drawn district
elections.
2)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
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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. In all,
approximately 130 local government bodies have transitioned
from at-large to district-based elections since the enactment
of the CVRA. 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.
This bill expands the CVRA to permit challenges to be brought to
district-based election systems that impair the ability of a
protected class of voters to elect the candidates 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. Challenges to
district-based election systems under the CVRA would be
subject to the same standards and procedures that currently
apply to challenges to at-large election systems that are
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brought under the CVRA. As is the case with challenges to
at-large election systems under the CVRA, prevailing plaintiff
parties that bring successful challenges to district-based
election systems under this bill would be able to recover
attorney's fees, including expert witness fees and expenses.
Prevailing defendant parties are not able to recover costs,
unless the court finds the action to be frivolous,
unreasonable, or without foundation.
The primary difference between challenges brought under the CVRA
to at-large elections and challenges brought to district-based
elections under this bill are the remedies that would be
available when a court finds that a violation exists. While
existing law does not explicitly limit the remedies that a
court may consider in response to an at-large election system
that violates the CVRA, it does state that the imposition of
district-based elections may be an appropriate remedy for such
a violation. By contrast, if a district-based election system
were found to violate the CVRA under the provisions of this
bill, the court would be required to implement a single-member
district-based election system as a remedy, unless such a
remedy was not legally viable. In situations where the court
finds that such a remedy is not viable, this bill requires the
court to consider other appropriate remedies, including
increasing the size of the governing body, delaying an
election, or changing the dates of elections in the political
subdivision.
3)Federal Voting Rights Act of 1965 & 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
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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 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
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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 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 in 2012
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
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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.
4)Consolidation Issues and Los Angeles County : Existing law
requires all state, county, municipal, district, and school
district elections that are held on a statewide election date
to be consolidated with the statewide election, except that
the Los Angeles County Board of Supervisors is allowed to deny
a request for consolidation of an election with the statewide
election if the voting system used by the county cannot
accommodate the additional election. This unique provision
allowing Los Angeles County to deny consolidation requests was
created through the passage of SB 693 (Robbins), Chapter 897,
Statutes of 1985, in response to attempts by a number of
cities in Los Angeles to move their municipal elections to the
same day as statewide elections. Los Angeles County sought
the ability to deny consolidation requests because its voting
system could accommodate only a limited number of contests at
each election, and the county was concerned that the move by
cities to hold their elections at the same time as the
statewide election would exceed the capacity of their voting
system. Los Angeles County still uses a variant of the voting
system that it used in 1985, though the county is currently in
the planning and design stage for developing and transitioning
to a new voting system. One of the principles that the county
has articulated to guide the development of its new voting
system is having a system that has "sufficient technical and
physical capacity to accommodate?consolidation of elections
with local districts and municipalities." That voting system,
however, is not expected to be available for use countywide
before 2018.
Because of the capacity limitations of Los Angeles County's
voting system, the county has denied requests from various
local governmental bodies in the county that have sought to
hold their elections at the same time as-and to have their
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elections consolidated with-statewide elections. In fact, in
April 2013, Los Angeles County denied requests from six school
districts and a water district in the Santa Clarita Valley to
hold their elections at the same time as statewide elections.
According to an article in the Los Angeles Times, those
districts were seeking to move the dates of their elections in
an attempt to improve voter participation and to avoid
possible liability under the CVRA.
This bill provides, as one potential remedy for a violation of
its provisions, that a court may require a jurisdiction to
hold its elections on the same day as a statewide election.
Until Los Angeles County replaces its voting system and is
able to accommodate a larger number of requests to consolidate
elections with the statewide election, such a court order
could force a local jurisdiction in Los Angeles County to hold
its elections on the same day as a statewide election, but not
have that election be consolidated with the statewide
election. When two elections are held on the same day, but
are not consolidated, those elections are commonly referred to
as "concurrent" elections. When concurrent elections are
conducted, voters who are voting in both elections have
separate ballots for each election, and can have separate
polling locations for each election. As a result, concurrent
elections can cause voter confusion, and otherwise can create
challenges for voters, candidates, and election officials.
If this bill results in local jurisdictions in Los Angeles being
ordered to hold their elections on the same day as a statewide
election, those jurisdictions could be forced to hold
concurrent elections, rather than having their elections
consolidated with the statewide election. Such a result may
minimize the benefits of changing the election date.
5)Potential Conflicts with Existing Law : This bill permits a
court, upon finding that a district-based election system
violates the provisions of the CVRA, to implement remedies in
addition to implementing a redistricting plan, 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
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
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elected by or from districts.
6)Coalition of Groups and Author's Amendment : This bill permits
a court to implement, as an appropriate remedy, a
single-member district-based election system 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. To address this issue, the
author proposes to amend this bill to replace the phrase
"coalition of groups" with the phrase "coalition of two or
more protected classes."
7)Related Legislation : AB 280 (Alejo), which is pending in the
Senate Elections & Constitutional Amendments Committee,
prohibits specified changes to elections practices and
procedures from being made in certain jurisdictions unless
those jurisdictions demonstrate to the Secretary of State or
the superior court that the changes are not likely to result
in a discriminatory effect on the participation of voters from
any racial or ethnic group that constitutes at least 20
percent of the total citizen voting-age population in the
jurisdiction. AB 280 was gutted-and-amended in the Senate, so
the current contents of that bill have not been considered by
this committee or the Assembly.
AB 2715 (Hern�ndez), which was approved by this committee on a
5-2 vote, requires cities with a population of 100,000 or more
to elect city council members by district, instead of
at-large, beginning January 1, 2017. AB 2715 was held on the
Assembly Appropriations Committee's suspense file.
AB 1440 (Campos), which was approved by this committee on a 7-0
vote and by the Assembly on a 77-0 vote, requires any
political subdivision that is switching from an at-large
method of election to a district-based method of election to
hold at least two public hearings on the proposed district
boundaries prior to adopting those boundaries, among other
provisions. AB 1440 is pending in the Senate Appropriations
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
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American Civil Liberties Union of California (co-sponsor)
Asian Americans Advancing Justice-Los Angeles (co-sponsor)
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area (co-sponsor)
Mexican American Legal Defense and Educational Fund (co-sponsor)
National Association of Latino Elected and Appointed Officials
Educational Fund (co-sponsor)
California Latino Legislative Caucus
League of Women Voters of California
Secretary of State Debra Bowen
Service Employees International Union, California State Council
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094