Existing law, 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 provides that a voter who is a member of a protected class may bring an action in superior court to enforce the provisions of the CVRA, and, if the voter prevails in the case, he or she may be awarded reasonable litigation costs and attorneys fees. The CVRA requires a court to implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy a violation of the act.

This bill would prohibit the use of a district-based election in a political subdivision if it would impair the ability of a protected class, as defined, to elect candidates of its choice. The bill would require a court to implement specified remedies upon a finding that a district-based election was imposed or applied in a manner that impaired the ability of a protected class to elect candidates of its choice.

Existing law, 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 provides that a voter who is a member of a protected class may bring an action in superior court to enforce the provisions of the CVRA, and, if the voter prevails in the case, he or she may be awarded reasonable litigation costs and attorneys fees. The CVRA requires a court to implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy a violation of the act.

This bill would prohibit the use of a district-based election in a political subdivision if it would impair the ability of a protected class, as defined, to elect candidates of its choice. The bill would require a court to implement specified remedies upon a finding that a district-based election was imposed or applied in a manner that impaired the ability of a protected class to elect candidates of its choice.

Existing law, 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 provides that a voter who is a member of a protected class may bring an action in superior court to enforce the provisions of the CVRA, and, if the voter prevails in the case, he or she may be awarded reasonable litigation costs and attorneys fees. The CVRA requires a court to implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy a violation of the act.

This bill would prohibit the use of a district-based election in a political subdivision if it would impair the ability of a protected class, as defined, to elect candidates of its choice. The bill would require a court to implement specified remedies upon a finding that a district-based election was imposed or applied in a manner that impaired the ability of a protected class to elect candidates of its choice.

Existing law, 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 provides that a voter who is a member of a protected class may bring an action in superior court to enforce the provisions of the CVRA, and, if the voter prevails in the case, he or she may be awarded reasonable litigation costs and attorneys fees. The CVRA requires a court to implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy a violation of the act.

This bill would provide parallel provisions that prohibit prohibit the use of a district-based 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 bill would require a court to implement specified remedies upon a finding that a district-based election was imposed or applied in a manner that impaired the ability of a protected class to elect candidates of its choice or otherwise influence the outcome of an election. choice.

Existing law, 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 provides that a voter who is a member of a protected class may bring an action in superior court to enforce the provisions of the CVRA, and, if the voter prevails in the case, he or she may be awarded reasonable litigation costs and attorneys fees. The CVRA requires a court to implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy a violation of the act.

This bill would provide parallel provisions that prohibit the use of a district-based 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 bill would require a court to implement specified remedies upon a finding that a district-based election was imposed or applied in a manner that impaired the ability of a protected class to elect candidates of its choice or otherwise influence the outcome of an election.

GOVERNOR'S VETO

GV Bill Id:AB 182

Author:(Alejo, et al.)

As Enrolled Ver:September 10, 2015

2/3 vote

Original Committee Reference: E. & R.

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 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 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 this bill. Provides that a court-ordered district-based election system that is adopted on or after January 1, 2016, as a result of an action filed pursuant to the CVRA, shall be subject to a rebuttable presumption that the system does not violate this bill.

3. Requires a court, upon finding that a political subdivision's district-based elections violate this bill, 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. Permits the court, if it is not possible to create a district plan in which the protected class has the opportunity to elect candidates of its choice, to order additional remedies, including, any of the following:

   1. Increasing the size of the governing body, if approved by the voters in the jurisdiction;

   2. Approving a single-member district-based election system that provides the protected class the opportunity to join in a coalition of two or more protected classes to elect candidates of their choice if there is a demonstrated political cohesion among the protected classes;

   3. Requiring elections for members of the governing body of the political subdivision to be held on the same day as a statewide election; or,

   4. Issuing an injunction to delay an election.

4. States that the purpose 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 specified provisions of the California Constitution. Requires the provisions of this bill to be construed liberally in furtherance of this legislative intent to eliminate minority vote dilution. Declares the intent of the Legislature that any remedy implemented under this bill shall comply with the 14th Amendment to the United States Constitution. Finds and declares that this bill is consistent with a specified court case.

5. Contains a severability clause.

The Senate amendments require a court, if it is considering ordering that elections of a governing body be held on the same day as a statewide election, to take into account the capacity of the county to consolidate the election date with statewide elections.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "AB 182 will expand the California Voting Rights Act of 2001 to better protect minority communities across the state. Voter disenfranchisement still persists today. This measure is a means for us to protect voters from being excluded and ensure that we have a working democracy in California for years to come. This bill will allow challenges to district-based elections that are being imposed or applied in a manner that impairs the ability of a protected class of voters to elect candidates of their choice."

SB 976 (Polanco), Chapter 129, Statutes of 2002, enacted the CVRA to address racial block 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 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.

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, 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 brought under the CVRA. As is the case with challenges to at-large election systems under the CVRA, prevailing plaintiff parties 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 devise a single-member district-based election system that provides the protected class of voters the opportunity to elect candidates of its choice from single-member districts. If a plan cannot be created that would give the protected class the opportunity to elect candidates of its choice, the court would be allowed to consider other appropriate remedies, including increasing the size of the governing body if approved by the voters of the jurisdiction, creating a single-member district-based election system in which a coalition of two protected classes that are politically cohesive can elect the candidates of their choice, requiring elections for the governing board of the political subdivision to be held on the same day as a statewide election, or issuing an injunction to delay an election.

Please see the policy committee analysis for a full discussion of this bill.

GOVERNOR'S VETO MESSAGE:

This bill would apply the rules governing at-large elections in the California Voting Rights Act to challenges related to district-based elections.

I vetoed a similar bill last year, SB 1365 (Padilla), and my views have not changed. I believe the federal Voting Rights Act and the California Voting Rights Act provide important and sufficient safeguards to ensure that the electoral strength of minority voters is protected.

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094 FN: 0002520

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 182

Author:(Alejo, et al.)

As Amended Ver:June 22, 2015

Majority vote

Original Committee Reference: E. & R.

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 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 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 this bill. Provides that a court-ordered district-based election system that is adopted on or after January 1, 2016, as a result of an action filed pursuant to the CVRA, shall be subject to a rebuttable presumption that the system does not violate this bill.

3. Requires a court, upon finding that a political subdivision's district-based elections violate this bill, 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. Permits the court, if it is not possible to create a district plan in which the protected class has the opportunity to elect candidates of its choice, to order additional remedies, including, any of the following:

   1. Increasing the size of the governing body, if approved by the voters in the jurisdiction;

   2. Approving a single-member district-based election system that provides the protected class the opportunity to join in a coalition of two or more protected classes to elect candidates of their choice if there is a demonstrated political cohesion among the protected classes;

   3. Requiring elections for members of the governing body of the political subdivision to be held on the same day as a statewide election; or,

   4. Issuing an injunction to delay an election.

4. States that the purpose 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 specified provisions of the California Constitution. Requires the provisions of this bill to be construed liberally in furtherance of this legislative intent to eliminate minority vote dilution. Declares the intent of the Legislature that any remedy implemented under this bill shall comply with the 14th Amendment to the United States Constitution. Finds and declares that this bill is consistent with a specified court case.

5. Contains a severability clause.

The Senate amendments require a court, if it is considering ordering that elections of a governing body be held on the same day as a statewide election, to take into account the capacity of the county to consolidate the election date with statewide elections.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "AB 182 will expand the California Voting Rights Act of 2001 to better protect minority communities across the state. Voter disenfranchisement still persists today. This measure is a means for us to protect voters from being excluded and ensure that we have a working democracy in California for years to come. This bill will allow challenges to district-based elections that are being imposed or applied in a manner that impairs the ability of a protected class of voters to elect candidates of their choice."

SB 976 (Polanco), Chapter 129, Statutes of 2002, enacted the CVRA to address racial block 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 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.

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, 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 brought under the CVRA. As is the case with challenges to at-large election systems under the CVRA, prevailing plaintiff parties 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 devise a single-member district-based election system that provides the protected class of voters the opportunity to elect candidates of its choice from single-member districts. If a plan cannot be created that would give the protected class the opportunity to elect candidates of its choice, the court would be allowed to consider other appropriate remedies, including increasing the size of the governing body if approved by the voters of the jurisdiction, creating a single-member district-based election system in which a coalition of two protected classes that are politically cohesive can elect the candidates of their choice, requiring elections for the governing board of the political subdivision to be held on the same day as a statewide election, or issuing an injunction to delay an election.

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094 FN: 0001061

 THIRD READING 

Bill No: AB 182

Author: Alejo (D), Bonta (D), and Hernandez (D), et al.

Amended: 6/22/15 in Senate

Vote: 21

SENATE ELECTIONS & C.A. COMMITTEE: 4-1, 6/16/15

AYES: Allen, Hancock, Hertzberg, Liu

NOES: Anderson

ASSEMBLY FLOOR: 53-25, 5/11/15 - See last page for vote

SUBJECT: California Voting Rights Act of 2001

SOURCE: Secretary of State Alex Padilla

American Civil Liberties Union of California

Asian Americans Advancing Justice

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Mexican American Legal Defense and Educational Fund

National Association of Latino Elected and Appointed Officials

DIGEST: This bill expands the California Voting Rights Act of 2001 (CVRA) to allow challenges to district-based elections to be brought under the CVRA, as specified.

ANALYSIS:

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 (52 U.S.C. Sec. 10301 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 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. Provides that other factors such as the history of discrimination, the use of electoral devices or other voting practices or procedures that may enhance the dilutive effects of the election system, denial of access to those processes determining which groups of candidates will receive financial or other support in a given election, the extent to which members of a protected class bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process, and the use of overt or subtle racial appeals in political campaigns are probative, but not necessary factors to establish a violation of the CVRA.

8. 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.

9. 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.

10. 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.

This bill:

1. Expands the CVRA to include challenges to district-based elections.

2. Prohibits 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 as the result of the dilution or abridgement of the rights of voters who are members of a protected class.
   
   

3. 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. Provides that a court-ordered district-based election system that is adopted on or after January 1, 2016, as a result of an action filed pursuant to the CVRA, shall be subject to a rebuttable presumption that the system does not violate this bill.

4. Requires a court, upon finding that a political subdivision's district-based elections violate this bill, 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. If it is not possible to create a district plan in which the protected class has the opportunity to elect candidates of its choice, the court may do any of the following:

   1. Increase the size of the governing body, if approved by the voters in the jurisdiction.

   2. Approve a single-member district-based election system that provides the protected class the opportunity to join in a coalition of two protected classes to elect candidates of their choice, as specified.

   3. Require elections for members of the governing body of the political subdivision to be held on the same day as a statewide election taking into account the capacity of the county to do so.

   4. Issue an injunction to delay an election.

5. States that the purpose of the Legislature in enacting this bill is to address ongoing voter 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 construed liberally in furtherance of this legislative intent. Declares the intent of the Legislature that any remedy implemented under this bill shall comply with the 14th Amendment to the United States Constitution. Finds and declares that this act is consistent with a specified court case.

6. Contains a severability clause.

Background

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 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.

At the time the CVRA was enacted, challenges to at-large elections systems that diluted the voting strength of protected classes of voters generally were brought under Section 2 of the VRA. In Thornburg v. Gingles (1986) 478 U.S. 30, the U.S. Supreme Court announced three preconditions that a plaintiff first must establish to prove that an election system diluted the voting strength of a protected minority group, in violation of Section 2 of the VRA:

• 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; and,

• There was racially polarized voting among the majority community, which usually (but not necessarily always), voted for majority candidates rather than for minority candidates.

While plaintiffs must establish the three preconditions outlined in Gingles in order to prevail in a challenge brought under Section 2 of the VRA, the CVRA was designed so that plaintiffs would not need to establish that a minority community was geographically concentrated in order to prevail. Instead, the CVRA provides that the fact that members of a protected class are not geographically compact or concentrated “may be a factor in determining an appropriate remedy,” but “may not preclude a finding of racially polarized voting.”

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 U.S. 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, more than 140 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, 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 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 devise a single-member district-based election system that provides the protected class of voters the opportunity to elect candidates of its choice from single-member districts. If a plan cannot be created that would give the protected class the opportunity to elect candidates of its choice, the court would be allowed to consider other appropriate remedies, including increasing the size of the governing body if approved by the voters of the jurisdiction, creating a single-member district-based election system in which a coalition of two protected classes that are politically cohesive can elect the candidates of their choice, requiring elections for the governing board of the political subdivision to be held on the same day as a statewide election, or issuing an injunction to delay an election.

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 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 for the District of Columbia 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 argued 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 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 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 author, AB 182 will expand the CVRA to better protect minority communities across the state. Voter disenfranchisement still persists today. This bill is a means for us to protect voters from being excluded and ensure that we have a working democracy in California for years to come.
   
   This bill will allow challenges to district-based elections that are being imposed or applied in a manner that impairs the ability of a protected class of voters to elect candidates of their choice. In this context, the court may issue a range of remedies all provided within the framework of a districted system. AB 182 provides a non-exhausted list of remedies intended to provide guidance for courts and local governing bodies considering possible remedial action.
   
   Currently, the CVRA only permits challenges to at-large election systems, and allows the courts during a challenge to order “appropriate remedies” to protect the voting rights of a minority community. A court ordered remedy may even include the imposition of district-based elections. AB 182 will apply to already-existing district-based elections systems where the districts are drawn in a manner that impairs the ability of a protected class of voters to elect candidates of their choice. In this context, the court may issue a range of remedies all provided within the framework of a districted system.

2. Consolidation Issues and Los Angeles County. Existing law 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.
   
   Los Angeles County sought the ability to deny consolidation requests in SB 693 (Robbins, Chapter 897, Statutes of 1985), 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, may not be available for use countywide until 2020.
   
   Because of the capacity limitations of Los Angeles County's voting system, the county routinely 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 elections consolidated with - statewide elections. Recently, however, the Los Angeles County Board of Supervisors voted to change its policy regarding requests for consolidations of local elections with the statewide primary or general election. Rather than routinely denying such requests, under the new policy, the Board of Supervisors will consider approving requests by local government bodies to have their elections consolidated with statewide elections on a case-by-case basis. The board will consider approving such a request from a local governmental body if an analysis indicates that the ballots in the area of the county where the governmental body is located have had sufficient capacity to accommodate additional contests at previous statewide elections.
   
   This bill provides, as one potential remedy for a violation of its provisions, that a court may order that a jurisdiction’s governing board elections be held on the same day as a statewide election. A jurisdiction in Los Angeles County, however, may not be able to receive approval for its election to be consolidated with the statewide election until Los Angeles County replaces its voting system. In that case, 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.
   
   In light of this issue, this bill was amended in policy committee to provide that if the court orders the elections of the governing body to be held on the same day as a statewide election it must take into account the capacity of the county to consolidate the election date with statewide elections.

Prior Legislation

This bill is similar to SB 1365 (Padilla, 2014) which was vetoed by Governor Brown. In his veto message, the Governor stated "[w]hile there is progress to be made, the federal Voting Rights Act and the California Voting Rights Act already provide important safeguards to ensure that the voting strength of minority communities is not diluted."

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 9/2/15)

Secretary of State Alex Padilla (co-source)

American Civil Liberties Union of California (co-source)

Asian Americans Advancing Justice (co-source)

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (co-source)

Mexican American Legal Defense and Educational Fund (co-source)

National Association of Latino Elected and Appointed Officials (co-source)

Advancement Project

California Common Cause

California Communities United Institute

California Immigrant Policy Center

League of Women Voters of California

National Association of Social Workers, California Chapter

OPPOSITION: (Verified 9/2/15)

Association of California Water Agencies

ASSEMBLY FLOOR: 53-25, 5/11/15

AYES: Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Linder, Lopez, Low, McCarty, Medina, Mullin, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood

NOES: Achadjian, Travis Allen, Bigelow, Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Nazarian, Atkins

Prepared by: Darren Chesin / E. & C.A. / (916) 651-4106

9/2/15 11:10:04

**** END ****

 THIRD READING 

Bill No: AB 182

Author: Alejo (D), Bonta (D), and Hernandez (D), et al.

Amended: 6/22/15 in Senate

Vote: 21

SENATE ELECTIONS & C.A. COMMITTEE: 4-1, 6/16/15

AYES: Allen, Hancock, Hertzberg, Liu

NOES: Anderson

ASSEMBLY FLOOR: 53-25, 5/11/15 - See last page for vote

SUBJECT: California Voting Rights Act of 2001

SOURCE: Secretary of State Alex Padilla

American Civil Liberties Union of California

Asian Americans Advancing Justice

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Mexican American Legal Defense and Educational Fund

National Association of Latino Elected and Appointed Officials

DIGEST: This bill expands the California Voting Rights Act of 2001 (CVRA) to allow challenges to district-based elections to be brought under the CVRA, as specified.

ANALYSIS:

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 (52 U.S.C. Sec. 10301 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 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. Provides that other factors such as the history of discrimination, the use of electoral devices or other voting practices or procedures that may enhance the dilutive effects of the election system, denial of access to those processes determining which groups of candidates will receive financial or other support in a given election, the extent to which members of a protected class bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process, and the use of overt or subtle racial appeals in political campaigns are probative, but not necessary factors to establish a violation of the CVRA.

8. 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.

9. 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.

10. 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.

This bill:

1. Expands the CVRA to include challenges to district-based elections.

2. Prohibits 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 as the result of the dilution or abridgement of the rights of voters who are members of a protected class.
   
   

3. 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. Provides that a court-ordered district-based election system that is adopted on or after January 1, 2016, as a result of an action filed pursuant to the CVRA, shall be subject to a rebuttable presumption that the system does not violate this bill.

4. Requires a court, upon finding that a political subdivision's district-based elections violate this bill, 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. If it is not possible to create a district plan in which the protected class has the opportunity to elect candidates of its choice, the court may do any of the following:

   1. Increase the size of the governing body, if approved by the voters in the jurisdiction.

   2. Approve a single-member district-based election system that provides the protected class the opportunity to join in a coalition of two protected classes to elect candidates of their choice, as specified.

   3. Require elections for members of the governing body of the political subdivision to be held on the same day as a statewide election taking into account the capacity of the county to do so.

   4. Issue an injunction to delay an election.

5. States that the purpose of the Legislature in enacting this bill is to address ongoing voter 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 construed liberally in furtherance of this legislative intent. Declares the intent of the Legislature that any remedy implemented under this bill shall comply with the 14th Amendment to the United States Constitution. Finds and declares that this act is consistent with a specified court case.

6. Contains a severability clause.

Background

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 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.

At the time the CVRA was enacted, challenges to at-large elections systems that diluted the voting strength of protected classes of voters generally were brought under Section 2 of the VRA. In Thornburg v. Gingles (1986) 478 U.S. 30, the U.S. Supreme Court announced three preconditions that a plaintiff first must establish to prove that an election system diluted the voting strength of a protected minority group, in violation of Section 2 of the VRA:

• 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; and,

• There was racially polarized voting among the majority community, which usually (but not necessarily always), voted for majority candidates rather than for minority candidates.

While plaintiffs must establish the three preconditions outlined in Gingles in order to prevail in a challenge brought under Section 2 of the VRA, the CVRA was designed so that plaintiffs would not need to establish that a minority community was geographically concentrated in order to prevail. Instead, the CVRA provides that the fact that members of a protected class are not geographically compact or concentrated “may be a factor in determining an appropriate remedy,” but “may not preclude a finding of racially polarized voting.”

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 U.S. 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, more than 140 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, 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 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 devise a single-member district-based election system that provides the protected class of voters the opportunity to elect candidates of its choice from single-member districts. If a plan cannot be created that would give the protected class the opportunity to elect candidates of its choice, the court would be allowed to consider other appropriate remedies, including increasing the size of the governing body if approved by the voters of the jurisdiction, creating a single-member district-based election system in which a coalition of two protected classes that are politically cohesive can elect the candidates of their choice, requiring elections for the governing board of the political subdivision to be held on the same day as a statewide election, or issuing an injunction to delay an election.

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 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 for the District of Columbia 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 argued 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 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 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 author, AB 182 will expand the CVRA to better protect minority communities across the state. Voter disenfranchisement still persists today. This bill is a means for us to protect voters from being excluded and ensure that we have a working democracy in California for years to come.
   
   This bill will allow challenges to district-based elections that are being imposed or applied in a manner that impairs the ability of a protected class of voters to elect candidates of their choice. In this context, the court may issue a range of remedies all provided within the framework of a districted system. AB 182 provides a non-exhausted list of remedies intended to provide guidance for courts and local governing bodies considering possible remedial action.
   
   Currently, the CVRA only permits challenges to at-large election systems, and allows the courts during a challenge to order “appropriate remedies” to protect the voting rights of a minority community. A court ordered remedy may even include the imposition of district-based elections. AB 182 will apply to already-existing district-based elections systems where the districts are drawn in a manner that impairs the ability of a protected class of voters to elect candidates of their choice. In this context, the court may issue a range of remedies all provided within the framework of a districted system.

2. Consolidation Issues and Los Angeles County. Existing law 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.
   
   Los Angeles County sought the ability to deny consolidation requests in SB 693 (Robbins, Chapter 897, Statutes of 1985), 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, may not be available for use countywide until 2020.
   
   Because of the capacity limitations of Los Angeles County's voting system, the county routinely 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 elections consolidated with - statewide elections. Recently, however, the Los Angeles County Board of Supervisors voted to change its policy regarding requests for consolidations of local elections with the statewide primary or general election. Rather than routinely denying such requests, under the new policy, the Board of Supervisors will consider approving requests by local government bodies to have their elections consolidated with statewide elections on a case-by-case basis. The board will consider approving such a request from a local governmental body if an analysis indicates that the ballots in the area of the county where the governmental body is located have had sufficient capacity to accommodate additional contests at previous statewide elections.
   
   This bill provides, as one potential remedy for a violation of its provisions, that a court may order that a jurisdiction’s governing board elections be held on the same day as a statewide election. A jurisdiction in Los Angeles County, however, may not be able to receive approval for its election to be consolidated with the statewide election until Los Angeles County replaces its voting system. In that case, 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.
   
   In light of this issue, this bill was amended in policy committee to provide that if the court orders the elections of the governing body to be held on the same day as a statewide election it must take into account the capacity of the county to consolidate the election date with statewide elections.

Prior Legislation

This bill is similar to SB 1365 (Padilla, 2014) which was vetoed by Governor Brown. In his veto message, the Governor stated "[w]hile there is progress to be made, the federal Voting Rights Act and the California Voting Rights Act already provide important safeguards to ensure that the voting strength of minority communities is not diluted."

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/22/15)

Secretary of State Alex Padilla (co-source)

American Civil Liberties Union of California (co-source)

Asian Americans Advancing Justice (co-source)

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (co-source)

Mexican American Legal Defense and Educational Fund (co-source)

National Association of Latino Elected and Appointed Officials (co-source)

Advancement Project

California Common Cause

California Communities United Institute

California Immigrant Policy Center

League of Women Voters of California

National Association of Social Workers, California Chapter

OPPOSITION: (Verified 6/22/15)

None received

ASSEMBLY FLOOR: 53-25, 5/11/15

AYES: Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Linder, Lopez, Low, McCarty, Medina, Mullin, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood

NOES: Achadjian, Travis Allen, Bigelow, Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Nazarian, Atkins

Prepared by: Darren Chesin / E. & C.A. / (916) 651-4106

7/2/15 8:55:50

**** END ****

SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Ben Allen, Chair

2015 - 2016 Regular

Bill No: AB 182 Hearing Date: 6/16/15

Subject: California Voting Rights Act of 2001

DIGEST

This bill expands the California Voting Rights Act of 2001 (CVRA) to allow challenges to district-based elections to be brought under the CVRA, as specified.

ANALYSIS

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 (52 U.S.C. Sec. 10301 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 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. Provides that other factors such as the history of discrimination, the use of electoral devices or other voting practices or procedures that may enhance the dilutive effects of the election system, denial of access to those processes determining which groups of candidates will receive financial or other support in a given election, the extent to which members of a protected class bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process, and the use of overt or subtle racial appeals in political campaigns are probative, but not necessary factors to establish a violation of the CVRA.

8. 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.

9. 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.

10. 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.

This bill:

1. Expands the CVRA to include challenges to district-based elections.

2. Prohibits 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 as the result of the dilution or abridgement of the rights of voters who are members of a protected class.
   
   

3. 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. Provides that a court-ordered district-based election system that is adopted on or after January 1, 2016, as a result of an action filed pursuant to the CVRA, shall be subject to a rebuttable presumption that the system does not violate this bill.

4. Requires a court, upon finding that a political subdivision's district-based elections violate this bill, 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. If it is not possible to create a district plan in which the protected class has the opportunity to elect candidates of its choice, the court may do any of the following:

   1. Increase the size of the governing body, if approved by the voters in the jurisdiction.

   2. Approve a single-member district-based election system that provides the protected class the opportunity to join in a coalition of two protected classes to elect candidates of their choice, as specified.

   3. Require elections for members of the governing body of the political subdivision to be held on the same day as a statewide election.

   4. Issue an injunction to delay an election.

5. States that the purpose of the Legislature in enacting this bill is to address ongoing voter 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 construed liberally in furtherance of this legislative intent. Declares the intent of the Legislature that any remedy implemented under this bill shall comply with the 14th Amendment to the United States Constitution. Finds and declares that this act is consistent with a specified court case.

6. Contains a severability clause.

BACKGROUND

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 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.

At the time the CVRA was enacted, challenges to at-large elections systems that diluted the voting strength of protected classes of voters generally were brought under Section 2 of the VRA. In Thornburg v. Gingles (1986) 478 U.S. 30, the U.S. Supreme Court announced three preconditions that a plaintiff first must establish to prove that an election system diluted the voting strength of a protected minority group, in violation of Section 2 of the VRA:

• 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; and,

• There was racially polarized voting among the majority community, which usually (but not necessarily always), voted for majority candidates rather than for minority candidates.

While plaintiffs must establish the three preconditions outlined in Gingles in order to prevail in a challenge brought under Section 2 of the VRA, the CVRA was designed so that plaintiffs would not need to establish that a minority community was geographically concentrated in order to prevail. Instead, the CVRA provides that the fact that members of a protected class are not geographically compact or concentrated “may be a factor in determining an appropriate remedy,” but “may not preclude a finding of racially polarized voting.”

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 U.S. 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, more than 140 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, 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 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 devise a single-member district-based election system that provides the protected class of voters the opportunity to elect candidates of its choice from single-member districts. If a plan cannot be created that would give the protected class the opportunity to elect candidates of its choice, the court would be allowed to consider other appropriate remedies, including increasing the size of the governing body if approved by the voters of the jurisdiction, creating a single-member district-based election system in which a coalition of two protected classes that are politically cohesive can elect the candidates of their choice, requiring elections for the governing board of the political subdivision to be held on the same day as a statewide election, or issuing an injunction to delay an election.

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 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 Columbia 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 argued 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 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 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 Author: AB 182 will expand the California Voting Rights Act of 2001 to better protect minority communities across the state. Voter disenfranchisement still persists today. This measure is a means for us to protect voters from being excluded and ensure that we have a working democracy in California for years to come.
   
   This bill will allow challenges to district-based elections that are being imposed or applied in a manner that impairs the ability of a protected class of voters to elect candidates of their choice. In this context, the court may issue a range of remedies all provided within the framework of a districted system. AB 182 provides a non-exhausted list of remedies intended to provide guidance for courts and local governing bodies considering possible remedial action.
   
   Currently, the California Voting Rights Act only permits challenges to at-large election systems, and allows the courts during a challenge to order “appropriate remedies” to protect the voting rights of a minority community. A court ordered remedy may even include the imposition of district-based elections. AB 182 will apply to already-existing district-based elections systems where the districts are drawn in a manner that impairs the ability of a protected class of voters to elect candidates of their choice. In this context, the court may issue a range of remedies all provided within the framework of a districted system.

2. Consolidation Issues and Los Angeles County. Existing law 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.
   
   Los Angeles County sought the ability to deny consolidation requests in SB 693 (Robbins, Chapter 897, Statutes of 1985), 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, may not be available for use countywide until 2020.
   
   Because of the capacity limitations of Los Angeles County's voting system, the county routinely 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 elections consolidated with - statewide elections. Recently, however, the Los Angeles County Board of Supervisors voted to change its policy regarding requests for consolidations of local elections with the statewide primary or general election. Rather than routinely denying such requests, under the new policy, the Board of Supervisors will consider approving requests by local government bodies to have their elections consolidated with statewide elections on a case-by-case basis. The board will consider approving such a request from a local governmental body if an analysis indicates that the ballots in the area of the county where the governmental body is located have had sufficient capacity to accommodate additional contests at previous statewide elections.
   
   This bill provides, as one potential remedy for a violation of its provisions, that a court may order that a jurisdiction’s governing board elections be held on the same day as a statewide election. A jurisdiction in Los Angeles County, however, may not be able to receive approval for its election to be consolidated with the statewide election until Los Angeles County replaces its voting system. In that case, 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 a jurisdiction is required to hold concurrent elections as a result of this bill, any benefit to changing the election date may be limited.

RELATED/PRIOR LEGISLATION

AB 1301 (Jones-Sawyer), which will be heard in this committee at a later date, would require local governments to submit specified changes to elections policies and procedures to the Secretary of State for approval before those changes could go into effect. AB 1301 is loosely modeled after the preclearance requirements in the VRA, as outlined above.

AB 277 (Roger Hernández), which is also before this committee today, clarifies that the CVRA applies to charter cities, charter counties, and charter cities and counties.

This bill is similar to SB 1365 (Padilla of 2014), which was vetoed by Governor Brown. In his veto message, the Governor stated "[w]hile there is progress to be made, the federal Voting Rights Act and the California Voting Rights Act already provide important safeguards to ensure that the voting strength of minority communities is not diluted."

PRIOR ACTION

POSITIONS

Sponsors: Mexican American Legal Defense and Educational Fund

Secretary of State Alex Padilla

American Civil Liberties Union of California

Asian Americans Advancing Justice

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

National Association of Latino Elected and Appointed Officials

Support: Advancement Project

California Common Cause

California Communities United Institute

California Immigrant Policy Center

League of Women Voters of California

National Association of Social Workers, California Chapter

Oppose: None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 182

Author:(Alejo, et al.)

As Amended Ver:April 29, 2015

Majority vote

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 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 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 this bill. Provides that a court-ordered district-based election system that is adopted on or after January 1, 2016, as a result of an action filed pursuant to the CVRA, shall be subject to a rebuttable presumption that the system does not violate this bill.

3. Requires a court, upon finding that a political subdivision's district-based elections violate this bill, 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. Permits the court, if it is not possible to create a district plan in which the protected class has the opportunity to elect candidates of its choice, to order additional remedies, including, any of the following:

   1. Increasing the size of the governing body, if approved by the voters in the jurisdiction;

   2. Approving a single-member district-based election system that provides the protected class the opportunity to join in a coalition of two protected classes to elect candidates of their choice if there is a demonstrated political cohesion among the protected classes;

   3. Requiring elections for members of the governing body of the political subdivision to be held on the same day as a statewide election; or,

   4. Issuing an injunction to delay an election.

4. States that the purpose 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 specified provisions of the California Constitution. Requires the provisions of this bill to be construed liberally in furtherance of this legislative intent to eliminate minority vote dilution. Declares the intent of the Legislature that any remedy implemented under this bill shall comply with the 14th Amendment to the United States Constitution. Finds and declares that this bill is consistent with a specified court case.

5. Contains a severability clause.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "AB 182 will expand the California Voting Rights Act of 2001 to better protect minority communities across the state. Voter disenfranchisement still persists today. This measure is a means for us to protect voters from being excluded and ensure that we have a working democracy in California for years to come. This bill will allow challenges to district-based elections that are being imposed or applied in a manner that impairs the ability of a protected class of voters to elect candidates of their choice."

SB 976 (Polanco), Chapter 129, Statutes of 2002, enacted the CVRA to address racial block 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 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.

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, 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 brought under the CVRA. As is the case with challenges to at-large election systems under the CVRA, prevailing plaintiff parties 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 devise a single-member district-based election system that provides the protected class of voters the opportunity to elect candidates of its choice from single-member districts. If a plan cannot be created that would give the protected class the opportunity to elect candidates of its choice, the court would be allowed to consider other appropriate remedies, including increasing the size of the governing body if approved by the voters of the jurisdiction, creating a single-member district-based election system in which a coalition of two protected classes that are politically cohesive can elect the candidates of their choice, requiring elections for the governing board of the political subdivision to be held on the same day as a statewide election, or issuing an injunction to delay an election.

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094 FN: 0000275

Date of Hearing: May 5, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 182

Author:(Alejo) – As Amended Ver:April 29, 2015

SUBJECT: California Voting Rights Act of 2001

KEY ISSUE: SHOULD THE CALIFORNIA VOTING RIGHTS ACT BE EXPANDED TO PERMIT CHALLENGES TO A DISTRICT-BASED ELECTION SYSTEM THAT consistently DENIES VOTERS OF A PROTECTED CLASS THE ABILITY TO ELECT A CANDIDATE OF THEIR CHOICE?

SYNOPSIS

The California Voting Rights Act (CVRA) of 2001 permits members of a "protected class" to bring an action to challenge an at-large election system that impairs the ability of the protected class to elect candidates of its choice or influence the outcome of an election. (A "protected class" generally means any racial, ethnic, or linguistic group that constitutes a minority of a political subdivision.) If a court finds that the at-large election system did indeed abridge the voting rights of members of the protected class, the court must implement appropriate remedies, including the imposition of a district-based election system. When CVRA was enacted, it had already long been recognized that at-large elections, coupled with polarized voting patterns, diluted the voting strength of racial and ethnic minorities, because in such situations the majority could effectively determine all members of the governing body. District-based elections, on the other hand, allowed racial and ethnic minorities to elect at least some members to the governing body. But even a district-based system can dilute minority voting power, depending upon how lines are drawn, the geographical distribution of minority voters, and the degree of racially polarized voting. This bill, therefore, would extend the reach of the CVRA to permit challenges to a district-based election system if it can be shown that, due to racially-polarized voting, the system impairs the ability of a protected class to elect candidates of its choice. As noted in the analysis, this bill differs from CVRA in a number ways, especially as to the remedies available to a court that finds a voting rights violation. The bill is co-sponsored by several civil rights and civil liberties groups. A similar measure was vetoed by the Governor last year, and it is unclear whether the relatively modest differences in this bill will yield a different outcome this year. The bill recently passed out of the Assembly Elections and Redistricting Committee on a 5-2 vote. There is no registered opposition to the bill.

SUMMARY: Expands the California Voting Rights Act (CVRA) of 2001 to include challenges to district-based elections. Specifically, this bill:

1. Prohibits 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 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. Provides that a court-ordered district-based election system that is adopted on or after January 1, 2016, as a result of an action filed pursuant to the CVRA, shall be subject to a rebuttable presumption that the system does not violate this bill.

3. Requires a court, upon finding that a political subdivision's district-based elections violate this bill, 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. If it is not possible to create a district plan in which the protected class has the opportunity to elect candidates of its choice, the court may do any of the following:

   1. Increase the size of the governing body, if approved by the voters in the jurisdiction.

   2. Approve a single-member district-based election system that provides the protected class the opportunity to join in a coalition of two protected classes to elect candidates of their choice, as specified.

   3. Require elections for members of the governing body of the political subdivision to be held on the same day as a statewide election.

   4. Issue an injunction to delay an election.

4. States that the purpose of the Legislature in enacting this bill is to address ongoing voter 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 construed liberally in furtherance of this legislative intent. Declares the intent of the Legislature that any remedy implemented under this bill shall comply with the 14th Amendment to the United States Constitution. Finds and declares that this act is consistent with a specified court case.

5. Contains a severability clause.

EXISTING LAW:

1. Provides, under the 14th Amendment of the U.S. Constitution, that “[n]o 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.)

2. Provides, under the 15th Amendment of the U.S. Constitution, that “[t]he rights 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 condition or servitude.” (U.S. Const., 15th Amend.)

3. Provides, under the federal Voting Rights Act, that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizens of the United States to vote on account of race or color, [or language minority group.]” (42 U.S.C. Sec. 1973 et seq.)

4. Provides, under the California Voting Rights Act (CVRA) of 2001, that an at-large election method may not impair the ability of a protected class to elect candidates of its choice or to influence the outcome of an election, as a result of dilution or abridgement of voter's rights. (Elections Code Section 14027. Unless stated otherwise, all further references are to that Code.)

5. For purposes of the CVRA, defines “protected class” as a class of voters who are members of a race, color, or language minority group, consistent with the federal Voting Rights Act. (Section 14026; see also 42 U.S.C. Sec. 1973 et seq.)

6. Provides that an at-large method of election is conducted when: (1) members of the governing body are elected by voters of the entire jurisdiction; (2) candidates are required to reside in an election district (a divisible part of the political subdivision) and elected by voters of the entire jurisdiction; or (3) an at-large election method is combined with a district-based election. (Section 14028.)

7. Provides that a district-based method of election is conducted when candidates are required to reside in an election district (a divisible part of the political subdivision) and elected only by voters residing within that election district. (Section 14026.)

8. Provides that a violation of the CVRA may be established if racially polarized voting, as defined, occurs in an election of members to the governing body of a political subdivision. (Section 14028.)

9. Provides that upon a violation of the CVRA, the court shall implement appropriate remedies that are tailored to remediate the violation, including the imposition of district-based elections. (Section 14029.)

10. Provides for reasonable attorney’s fees and litigation expenses for the prevailing plaintiff party. Provides for costs for the prevailing defendant only upon a frivolous or unreasonable action. (Section 14030.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: The California Voting Rights Act (CVRA) of 2001 permits a member of a "protected class" to legally challenge an at-large election system if that system impairs the ability of the protected class to elect candidates of its choice or influence the outcome of an election. (A "protected class" means any racial, ethnic, or linguistic group that constitutes a minority of a political subdivision.) When CVRA was enacted, it had long been recognized that at-large elections, coupled with racially polarized voting patterns, worked to the detriment of racial and ethnic minorities. In such situations, the majority could elect all members of the governing body. District-based elections, on the other hand, allowed racial and ethnic minorities to elect at least some members of the governing body. In order to prevail in a CVRA action, the plaintiff must show that racially polarized voting occurs in elections for members of the jurisdiction's governing body. Proving the existence of racially polarized voting usually requires a statistical analysis of past election results showing that members of the protected class consistently vote differently than the rest of the electorate. A plaintiff bringing a CVRA challenge does not need to prove that elected officials or anyone else intended to discriminate against the protected class. A system that results in the dilution of voting rights of the protected class constitutes a violation, regardless of intent.

If the court finds a violation of CVRA, it must impose remedies appropriate to correct the violation. Presumably, the most likely goal is to have the political subdivision shift from an at-large election system to a district-based election system, where members of the governing body reside in and represent a particular district and are chosen by voters living in that district. However, this may not always be possible, especially if members of the protected class are not sufficiently concentrated in a geographical area such that they could constitute a workable single-member district. The existing CVRA provides little guideline as to what other remedies should apply in that case. CVRA simply says that upon finding a violation, "the court shall implement appropriate remedies, including the imposition of district-based elections that are tailored to remedy the situation." (Election Code Section 14029.)

Differences Between this Bill and Existing CVRA. AB 182 expands the CVRA in two important ways. First, it allows a plaintiff to contest a district-based election method that impairs a protected class from electing candidates of its choice, whereas CVRA only permits a challenge to an at-large election. Second, the bill provides the court with a longer list of specific remedies. Under the existing CVRA, the only specific remedy mentioned is for the court to order that an at-large election district be replaced with a district-based system. Under this bill, however, the court would replace an election system that is already district-based with an "effective" district-based election system. AB 182 does not provide any definition or criteria for the court to use in order to determine what constitutes an "effective" district-based election system, but presumably an "effective" system would be one that cured the violation. Since a court cannot order an end to racially polarized voting, it would presumably need to draw lines in such a way as to permit members of the protected class to elect candidates of its choice.

If an effective district-based election system is not possible – for example, if the protected class is not sufficiently large or concentrated to constitute a single-member district – AB 182 permits the court to create a district that gives the protected class the opportunity to join in a coalition of two or more protected classes to elect candidates of their choice. If neither an effective district-based election system nor a district-based coalition system is possible, the court may implement other appropriate remedies, including but not limited to: (1) increasing the size of the governing body; (2) issuing an injunction to delay an election; (3) requiring an election to be held on the same day as a statewide election so as to prevent the skewing effects of low voter turn-out.

AB 182 also differs from the existing CVRA by narrowing, somewhat, what constitutes a violation. Under CVRA, as noted above, a violation occurs if the at-large election system impairs the ability of the protected class to elect candidates of its choice or influence the outcome of an election. In a challenge to a district-based election under this bill, however, it is a violation if the system prohibits the protected class from electing a candidate of its choice, with no reference to the ability of the protected class to "influence the outcome of an election." Although the exact import of this difference is not entirely clear – in part because what it means to "influence" the outcome of an election is not entirely clear – the change appears to restrict the reach of this bill relative to the existing CVRA. Under this bill, a plaintiff must show that the system prohibited the protected class from electing a candidate of its choice; it would not be sufficient to show that the system hampered the ability of a protected class to "influence" an election. The Committee is not entirely clear why AB 182 departs from CVRA on this point by deleting the reference to a group's ability to "influence" an election. According to the author's office, it is apparently an effort to address concerns raised by the Governor's office; however, it should be noted the Governor's veto message on last year's bill does not contain any reference to this issue.

Court Role in Creating an Effective District-Based System Uncertain. Neither existing case law nor this bill provides much guidance on how a court would go about fashioning an "effective" district-based system. Although the CVRA has been operative since 2002, the Committee is not aware of any case – with the possible exception of a pending case in Palmdale – where the court actually created new electoral district lines. This is because few if any CVRA actions have reached the ultimate stage of requiring the court to "implement appropriate remedies." Most if not all of the cases have been settled, with the parties working out the details of a solution. Nonetheless, in theory, the remedy under CVRA is readily apparent: if the violation is caused by the nature of the at-large election system, then the remedy is to replace the at-large system with a district-based system. Determining the initial violation and drawing lines for the new system will not be easy, but the overall change required is fairly straightforward. Under this bill, however, a court will not be asked to replace an at-large system with a district-based system; rather, it will be asked to replace an existing district-based system with a more "effective" district-based system. Presumably a court would have two choices: it could draw lines on its own, based on whatever methodologies are available to it, or it could assign the task to a commission that would use the same kinds of criteria employed whenever a political subdivision draws new lines in response to a new census.

Comparison of CVRA with Federal Voting Rights Act. Under existing law, a plaintiff alleging voter dilution may also bring an action under Section 2 of the federal Voting Rights Act (VRA) of 1965. VRA was enacted to Congress pursuant to Section 2 of the 15^th Amendment of the U.S. Constitution. The 15^th Amendment prohibits the denial or abridgment of a citizen's right to vote on account of "race, color, or previous condition of servitude." Section 2 of the 15^th Amendment grants Congress the power to enforce the 15^th Amendment "by appropriate legislation." Section 2 of the VRA – not to be confused with Section 2 of the 15^th Amendment – prohibits any "voting qualification or prerequisite to voting or standard, practice, or procedure" imposed by any State or political subdivision that "results in a denial or abridgement of the right of any citizens of the United States to vote on account of race or color, [or language minority group.]” In order to bring about new districts under federal law the plaintiff must satisfy all of the so-called "Gingles factors:" (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the white majority votes sufficiently as a bloc to defeat the minority’s preferred candidate. (Thornburg v. Gingles (1986) 478 U.S. 30.) In contrast, California law does not require the plaintiff to demonstrate that the minority group is geographically compact before it finds a CVRA violation, even though geographical compactness will be relevant in developing a remedy.

If a court finds a violation of the VRA, the remedies under federal law are similar to those under California law. To begin with, in fashioning remedies, a federal court relies heavily upon state law. The guiding principle of federal law is that the remedy is commensurate with the right violated. A court applying federal law could require the political subdivision to draw new lines, issue a stay, invalidate an election, invalidate an at-large election method, impose cumulative voting, or appoint a referee-administrator to oversee the election. As noted above, under the CVRA, the court “shall implement appropriate remedies,” including but not limited to replacing an at-large system with a district-based system. Under AB 182, the court could order an effective district-based election system or allow the protected class to join with other protected classes to form the majority of a single-member district. If neither an effective district-based election system nor a district-based coalition system is possible, the court may implement other appropriate remedies, such as 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 so as to prevent the skewing effects of low voter turn-out. In short, under federal law, existing California law, and under this bill the court has discretion to frame an approach that cures the violation in a manner consistent with existing state, federal, and constitutional law.

ARGUMENTS IN SUPPORT: According to the one of the several co-sponsors of this bill, the California Voting Rights Act of 2001 (CVRA) "was designed to safeguard the opportunity for Latinos and other underrepresented groups to achieve fair representation in local at-large election systems where the electoral preferences of those protected groups are different from those of other voters, and members of the protected groups are denied an equal opportunity to elect the candidates of their choice." The co-sponsors claim that "CVRA has played an essential role in ensuring local government compliance with state voting rights protections against unlawful vote dilution in at-large election systems," and they believe that this measure will "similarly protect the voting rights of citizens casting ballots in certain district election systems." Finally, the co-sponsors add that the bill's protections will "apply in localities where district lines divide underrepresented neighborhoods in a manner that minimizes their voting strength, and prevent cohesive underrepresented communities from electing candidates of their choice."

ARGUMENTS IN SUPPORT (If Amended): Californians for Electoral Reform (CER) strongly support the aims of the bill but "would be able to fully support AB 182" if it were amended. Specifically, CER would like to see the bill amended so as to recognize that in some cases modified at-large election reforms may be more effective than district-based systems. Modified at-large election reforms include "cumulative voting, limited voting, and the single transferrable vote." Thus, CER supports amending the bill to make specific references to these types of reforms when listing possible remedies available to the court when it is not possible to create an effective district-based system.

Pending Related Legislation: AB 1301 (Jones-Sawyer) requires local governments to submit specified changes to elections policies and procedures to the Secretary of State for approval before those changes could go into effect. AB 1301 is loosely modeled after the preclearance requirements in the VRA. This bill was approved by the Assembly Elections and Redistricting Committee on a 4-2 vote and is pending in the Assembly Appropriations Committee.

AB 277 (Roger Hernández) specifies that CVRA applies to charter cities, charter counties, and charter cities and counties. This bill was approved by the Assembly Elections and Redistricting Committee on a 5-2 vote and is pending on the Assembly Floor.

Previous Legislation: SB 1365 (Padilla, 2014) was very similar to this bill except, as noted above, it prohibited any system that impaired the ability of a protected class to elect candidates of its choice or influence the outcome of an election. AB 182 only prohibits a system that impairs the ability to elect a candidate of its choice. In his veto message on SB 1365, the Governor stated that the federal Voting Rights Act and the California Voting Rights Act already provided important safeguards to protect the voting strength of minority communities from vote dilution.

REGISTERED SUPPORT / OPPOSITION:

Support

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)

Secretary of State Alex Padilla (co-sponsor)

California Common Cause

California Communities United Institute

California Immigrant Policy Center

Californians for Electoral Reform (If amended)

National Association of Social Workers, California Chapter

Opposition

None on file

Analysis Prepared by: Eric Dang and Thomas Clark/JUD/ 319-2334

Date of Hearing: April 29, 2015

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Sebastian Ridley-Thomas, Chair

ABPCA Bill Id:AB 182

Author:(Alejo, Bonta, and Roger Hernández) – As Amended Ver:April 9, 2015

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 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. Provides that a court-ordered district-based election system that is adopted on or after January 1, 2016, as a result of an action filed pursuant to the CVRA, shall be subject to a rebuttable presumption that the system does not violate this bill. Provides that this presumption applies only to the exact district-based election system that was approved by the court.
   
   

3. Requires a court, upon finding that a political subdivision's district-based elections violate this bill, 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. Permits the court, if it is not possible to create a district plan in which the protected class has the opportunity to elect candidates of its choice without increasing the size of the governing body, or if the additional districts alone will not provide an appropriate remedy, to order additional remedies, including, any of the following:
   
   

   1. Incrementally increasing the size of the governing body, if approved by the voters in the jurisdiction;
      
      

   2. Approving a single-member district-based election system that provides the protected class the opportunity to join in a coalition of two protected classes to elect candidates of their choice if there is a demonstrated political cohesion among the protected classes;
      
      

   3. Requiring elections for members of the governing body of the political subdivision to be held on the same day as a statewide election; or,
      
      

   4. Issuing an injunction to delay an election.
      
      

4. States that the purpose 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 specified provisions of the California Constitution. Requires the provisions of this bill to be construed liberally in furtherance of this legislative intent to eliminate minority vote dilution. Declares the intent of the Legislature that any remedy implemented under this bill shall comply with the 14th Amendment to the United States Constitution.
   
   

5. 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 (52 U.S.C. Sec. 10301 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 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. Provides that other factors such as the history of discrimination, the use of electoral devices or other voting practices or procedures that may enhance the dilutive effects of the election system, denial of access to those processes determining which groups of candidates will receive financial or other support in a given election, the extent to which members of a protected class bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process, and the use of overt or subtle racial appeals in political campaigns are probative, but not necessary factors to establish a violation of the CVRA.
   
   

8. 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.
   
   

9. 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.
   
   

10. 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.

COMMENTS:

1. Purpose of the Bill: According to the author:

AB 182 will expand the California Voting Rights Act of 2001 to better protect minority communities across the state. Voter disenfranchisement still persists today. This measure is a means for us to protect voters from being excluded and ensure that we have a working democracy in California for years to come.

This bill will allow challenges to district-based elections that are being imposed or applied in a manner that impairs the ability of a protected class of voters to elect candidates of their choice. In this context, the court may issue a range of remedies all provided within the framework of a districted system. AB 182 provides a non-exhausted list of remedies intended to provide guidance for courts and local governing bodies considering possible remedial action.

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 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.
   
   At the time the CVRA was enacted, challenges to at-large elections systems that diluted the voting strength of protected classes of voters generally were brought under Section 2 of the VRA. In Thornburg v. Gingles (1986) 478 U.S. 30, the U.S. Supreme Court announced three preconditions that a plaintiff first must establish to prove that an election system diluted the voting strength of a protected minority group, in violation of Section 2 of the VRA:
   
   

   1. The minority community was sufficiently concentrated geographically that it was possible to create a district in which the minority could elect its own candidate;
      
      

   2. The minority community was politically cohesive, in that minority voters usually supported minority candidates; and,
      
      

   3. There was racially polarized voting among the majority community, which usually (but not necessarily always), voted for majority candidates rather than for minority candidates.

While plaintiffs must establish the three preconditions outlined in Gingles in order to prevail in a challenge brought under Section 2 of VRA, the CVRA was designed so that plaintiffs would not need to establish that a minority community was geographically concentrated in order to prevail. Instead, the CVRA provides that the fact that members of a protected class are not geographically compact or concentrated “may be a factor in determining an appropriate remedy,” but “may not preclude a finding of racially polarized voting.”

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 U.S. 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, more than 140 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, 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 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 devise a single-member district-based election system that provides the protected class of voters the opportunity to elect candidates of its choice from single-member districts. If a plan cannot be created that would give the protected class the opportunity to elect candidates of its choice, the court would be allowed to consider other appropriate remedies, including increasing the size of the governing body if approved by the voters of the jurisdiction, creating a single-member district-based election system in which a coalition of two protected classes that are politically cohesive can elect the candidates of their choice, requiring elections for the governing board of the political subdivision to be held on the same day as a statewide election, or issuing an injunction to delay an election.

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 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 argued 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 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 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, may not be available for use countywide until 2020.

Because of the capacity limitations of Los Angeles County's voting system, the county routinely 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 elections consolidated with—statewide elections. Last month, however, the Los Angeles County Board of Supervisors voted to change its policy regarding requests for consolidations of local elections with the statewide primary or general election. Rather than routinely denying such requests, under the new policy, the Board of Supervisors will consider approving requests by local government bodies to have their elections consolidated with statewide elections on a case-by-case basis. The board will consider approving such a request from a local governmental body if an analysis indicates that the ballots in the area of the county where the governmental body is located have had sufficient capacity to accommodate additional contests at previous statewide elections.

This bill provides, as one potential remedy for a violation of its provisions, that a court may order that a jurisdiction’s governing board elections be held on the same day as a statewide election. A jurisdiction in Los Angeles County, however, may not be able to receive approval for its election to be consolidated with the statewide election until Los Angeles County replaces its voting system. In that case, 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 a jurisdiction is required to hold concurrent elections as a result of this bill, any benefit to changing the election date may be limited.

5. Related Legislation: AB 1301 (Jones-Sawyer), which is also being heard in this committee today, would require local governments to submit specified changes to elections policies and procedures to the Secretary of State for approval before those changes could go into effect. AB 1301 is loosely modeled after the preclearance requirements in the VRA, as outlined above.
   
   AB 277 (Roger Hernández) provides that the CVRA applies to charter cities, charter counties, and charter cities and counties. AB 277 was approved by this committee on a 5-2 vote, and is pending on the Assembly Floor.

6. Previous Legislation: This bill is similar to SB 1365 (Padilla) of 2014, which was vetoed by Governor Brown. In his veto message, the Governor stated "[w]hile there is progress to be made, the federal Voting Rights Act and the California Voting Rights Act already provide important safeguards to ensure that the voting strength of minority communities is not diluted."

7. Double-Referral: This bill has been double-referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

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)

Secretary of State Alex Padilla (co-sponsor)

California Common Cause

California Communities United Institute

California Immigrant Policy Center

National Association of Social Workers, California Chapter

Opposition

None on file.

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094