Existing law provides for political subdivisions that encompass areas of representation within the state. With respect to these areas, public officials are generally elected by all of the voters of the political subdivision (at-large) or by districts formed within the political subdivision (district-based). Existing law requires a political subdivision, as defined, that changes from an at-large method of election to a district-based election to hold at least 2 public hearings on a proposal to establish the district boundaries of the political subdivision before a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.

This bill would instead require a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries, as specified.

Existing law, the California Voting Rights Act of 2001 (CVRA), prohibits the use of an at-large method of 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 its provisions.

This bill would require a prospective plaintiff under the CVRA to first send a written notice to the political subdivision against which the action would be brought indicating that the method of election used by the political subdivision may violate the CVRA. The bill would permit the political subdivision to take ameliorative steps to correct the alleged violation before the prospective plaintiff commences litigation, and it would stay the prospective plaintiffs ability to file suit for a prescribed amount of time. This bill would also permit a prospective plaintiff who sent a written notice, as described, to recover from the political subdivision reasonable costs incurred in supporting the written notice.

Because the bill would impose additional duties on local agencies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides for political subdivisions that encompass areas of representation within the state. With respect to these areas, public officials are generally elected by all of the voters of the political subdivision (at-large) or by districts formed within the political subdivision (district-based). Existing law requires a political subdivision, as defined, that changes from an at-large method of election to a district-based election to hold at least 2 public hearings on a proposal to establish the district boundaries of the political subdivision before a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.

This bill would instead require a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries, as specified.

Existing law, the California Voting Rights Act of 2001 (CVRA), prohibits the use of an at-large method of 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 its provisions.

This bill would require a prospective plaintiff under the CVRA to first send a written notice to the political subdivision against which the action would be brought indicating that the method of election used by the political subdivision may violate the CVRA. The bill would permit the political subdivision to take ameliorative steps to correct the alleged violation before the prospective plaintiff commences litigation, and it would stay the prospective plaintiffs ability to file suit for a prescribed amount of time. This bill would also permit a prospective plaintiff who sent a written notice, as described, to recover from the political subdivision reasonable costs incurred in supporting the written notice.

Because the bill would impose additional duties on local agencies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides for political subdivisions that encompass areas of representation within the state. With respect to these areas, public officials are generally elected by all of the voters of the political subdivision (at-large) or by districts formed within the political subdivision (district-based). Existing law requires a political subdivision, as defined, that changes from an at-large method of election to a district-based election to hold at least 2 public hearings on a proposal to establish the district boundaries of the political subdivision before a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.

This bill would instead require a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries, as specified.

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 its provisions.

This bill would require a prospective plaintiff under the CVRA to first send a written notice to the political subdivision against which the action would be brought indicating that the method of election used by the political subdivision may violate the CVRA. The bill would permit the political subdivision to take ameliorative steps to correct the alleged violation before the prospective plaintiff commenced litigation, and it would stay the prospective plaintiffs ability to file suit for a prescribed amount of time. This bill would also permit a prospective plaintiff who sent a written notice, as described, to recover from the political subdivision reasonable costs incurred in supporting the written notice.

Because the bill would impose additional duties on local agencies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides for political subdivisions that encompass areas of representation within the state. With respect to these areas, public officials are generally elected by all of the voters of the political subdivision (at-large) or by districts formed within the political subdivision (district-based). Existing law requires a political subdivision, as defined, that changes from an at-large method of election to a district-based election to hold at least 2 public hearings on a proposal to establish the district boundaries of the political subdivision before a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.

This bill would instead require a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries, as specified.

Because the bill would impose additional duties on local agencies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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 the CVRA requires a the court to implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy a violation of the act.

Existing law requires agricultural pest control advisers to be licensed by the Department of Pesticide Regulation. Under existing law, applicants for licensing are required to elect to be examined by the Director of Pesticide Regulation for certification in one or more identified specializations, including plant growth regulation.

This bill would specify that the certification for plant growth regulation includes plant and soil health.

CONCURRENCE IN SENATE AMENDMENTS

CSA2 Bill Id:AB 350

Author:(Alejo)

As Amended Ver:August 17, 2016

Majority vote

(vote not relevant)

(JUD.)

(E. & R.)

Original Committee Reference: E. & R.

SUMMARY: Requires a political subdivision that changes to, or establishes, district-based elections to hold at least two public hearings both before and after drawing a preliminary map or maps of the proposed district boundaries, as specified. Requires that written notice be provided before an action can be brought against a political subdivision under the California Voting Rights Act of 2001 (CVRA).

The Senate amendments delete the Assembly version of this bill, and instead:

1. Require a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, to do all of the following before adopting the ordinance establishing district-based elections:
   1. Hold at least two public hearings over a period of no more than 30 days before drawing a draft map or maps of the proposed boundaries, as specified;
   2. After draft map or maps are drawn, publish and make the draft maps available along with the potential sequence of elections if the terms of office under the new districts are to be staggered;
   3. Hold at least two additional public hearings after the release of the draft map or maps, with the first hearing held no sooner than seven days after the release of the map or maps, and the second hearing held no more than 45 days after the first hearing, as specified;
   4. Make any revised draft map available to the public for at least seven days before the map can be adopted; and,
   5. Give special consideration to the purposes of the CVRA, as specified, when determining the sequence of district elections if the terms of office are to be staggered.
2. Require a prospective plaintiff to send a written notice to a political subdivision before commencing an action against that political subdivision under the CVRA, as specified.
   1. Prohibit a prospective plaintiff from commencing an action under the CVRA within 45 days of the written notice being provided.
   2. Permit a political subdivision, prior to receiving a written notice or within 45 days after receiving a written notice, to pass a resolution outlining its intention to transition to district-based elections, as specified. Provide that an action to enforce the CVRA may not be commenced within 90 days of the passage of such a resolution.
   3. Permit a prospective plaintiff that sent a written notice to a political subdivision before that subdivision passed a resolution of intention to transition to district-based elections to recover the cost of the work product generated to support the notice, as specified. Require the political subdivision to reimburse the prospective plaintiff for reasonable costs claimed, as specified. Limit the amount that a prospective plaintiff may recover from a political subdivision that voluntarily transitions to district-based elections after receiving a written notice to the lesser of $30,000 or the cost of the work product generated to support the notice, as specified.

EXISTING LAW requires a political subdivision that changes from an at-large method of election to a district-based election to hold at least two public hearings on a proposal to establish the district boundaries of the political subdivision before a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.

AS PASSED BY THE ASSEMBLY, this bill expanded the CVRA to allow challenges to district-based elections to be brought under the CVRA, as specified.

FISCAL EFFECT: According to the Senate Appropriations Committee, costs for districts to hold the required public hearings would be state reimbursable, and statewide costs would depend on the number of governments changing to district-based elections. Costs would be minimized to the extent the public hearings are consolidated with regularly-scheduled meetings of the governing body. Overall, annual state costs are unknown, but likely minor.

COMMENTS: According to the author, "Last year, the City of Anaheim began its transition from at-large city council elections to district-based elections after a lawsuit by American Civil Liberties Union of Southern California and Latino activists in 2012. In November 2014, the people of Anaheim approved two ballot measures that would effect this transition. The first approved district maps provided for two Latino plurality districts and one majority Latino district.

"In November of 2015, the Anaheim City Council scheduled the elections for the two Latino plurality districts for 2016, but scheduled the elections for the only Latino majority district for 2018. The scheduling of the only Latino majority district in a midterm election year could have the effect of putting the elections for a district whose population consists of a majority of a protected class during a cycle in which turnout is traditionally decreased.

"AB 350 will require local governments that are transitioning from at-large to district-based elections under a court order to hold at least two public hearing before drawing a draft map and two public hearings after the one or more draft maps are drawn.

"AB 350 will require local governments that are transitioning from at-large to district-based elections under a court order to hold at least two public hearing before drawing a draft map and two public hearings after the one or more draft maps are drawn. For governments who are willing to transition to district-based elections, this bill will allow cities to have 90 days to pass a resolution of intent or an ordinance to transition to district-based [elections] before any legal action can be taken by outside parties alleging a violation of the CVRA."

This bill was substantially amended in the Senate and the Assembly-approved provisions of this bill were deleted. As a result, this bill was re-referred to the Assembly Judiciary Committee and the Assembly Elections and Redistricting Committee pursuant to Assembly Rule 77.2. Both committees subsequently recommended that the Assembly concur in the Senate amendments.

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

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094 FN: 0004982

Date of Hearing: August 29, 2016

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Shirley Weber, Chair

ABPCA Bill Id:AB 350 (

Author:Alejo) – As Amended Ver:August 17, 2016

CONCURRENCE IN SENATE AMENDMENTS

(vote not relevant)

SUBJECT: District-based municipal elections: preapproval hearings.

SUMMARY: Requires a political subdivision that changes to, or establishes, district-based elections to hold at least two public hearings both before and after drawing a preliminary map or maps of the proposed district boundaries, as specified. Requires that written notice be provided before an action can be brought against a political subdivision under the California Voting Rights Act of 2001 (CVRA).

The Senate amendments delete the Assembly version of this bill, and instead:

1. Require a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, to do all of the following before adopting the ordinance establishing district-based elections:
   1. Hold at least two public hearings over a period of no more than 30 days before drawing a draft map or maps of the proposed boundaries, as specified;
   2. After draft map or maps are drawn, publish and make the draft maps available along with the potential sequence of elections if the terms of office under the new districts are to be staggered;
   3. Hold at least two additional public hearings after the release of the draft map or maps, with the first hearing held no sooner than seven days after the release of the map or maps, and the second hearing held no more than 45 days after the first hearing, as specified;
   4. Make any revised draft map available to the public for at least seven days before the map can be adopted; and,
   5. Give special consideration to the purposes of the CVRA, as specified, when determining the sequence of district elections if the terms of office are to be staggered.
2. Require a prospective plaintiff to send a written notice to a political subdivision, as specified, before commencing an action against that political subdivision under the CVRA.
   1. Prohibit a prospective plaintiff from commencing an action under the CVRA within 45 days of the written notice being provided.
   2. Permit a political subdivision, prior to receiving a written notice or within 45 days after receiving a written notice, to pass a resolution outlining its intention to transition to district-based elections, as specified, including a discussion of specific steps the jurisdiction will undertake to facilitate the transition. Prohibit a prospective plaintiff from commencing an action to enforce the CVRA within 90 days of the passage of such a resolution.
   3. Permit a prospective plaintiff that sent a written notice to a political subdivision before that subdivision passed a resolution of intention to transition to district-based elections to recover the cost of the work product generated to support the notice, as specified. Require the political subdivision to reimburse the prospective plaintiff for reasonable costs claimed, or an amount to which the parties mutually agree, within 45 days of receiving the written demand from the prospective plaintiff, as specified. Limit the amount that a prospective plaintiff may recover from such a political subdivision to the lesser of $30,000, as adjusted for inflation, or the cost of the work product, as specified.

EXISTING LAW:

1. Requires a political subdivision that changes from an at-large method of election to a district-based election to hold at least two public hearings on a proposal to establish the district boundaries of the political subdivision before a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.
2. 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 the 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.
   
3. Requires a court, upon finding a violation of the CVRA, to implement appropriate remedies, including the imposition of district-based elections, which are tailored to remedy the violation.
   
4. 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.
   
5. Permits a prevailing plaintiff party in an action brought under the CVRA, other than the state or political subdivision thereof, to recover reasonable attorney's fees and litigation expenses including, but not limited to, expert witness fees and expenses. Prohibits a prevailing defendant party from recovering any costs unless the court finds the action to be frivolous, unreasonable, or without foundation.

AS PASSED BY THE ASSEMBLY, this bill expanded the CVRA to allow challenges to district-based elections to be brought under the CVRA, as specified.

FISCAL EFFECT: According to the Senate Appropriations Committee, costs for districts to hold the required public hearings would be state reimbursable, and statewide costs would depend on the number of governments changing to district-based elections. Costs would be minimized to the extent the public hearings are consolidated with regularly-scheduled meetings of the governing body. Overall, annual state costs are unknown, but likely minor.

COMMENTS:

1. Prior Committee Consideration of this Bill: In January, this committee considered and approved this measure on a 4-2 vote. At the time, this measure would have expanded the CVRA to allow challenges to district-based elections to be brought under the CVRA, as specified. Subsequent to the committee's approval of this measure, it was amended in the Senate to delete the Assembly-approved provisions of the bill, and to add the current provisions. As a result, this bill was re-referred to the Assembly Judiciary Committee and to this committee for further consideration pursuant to Assembly Rule 77.2. On August 25, 2016, the Assembly Judiciary Committee adopted a recommendation that the Assembly concur in the Senate amendments on a 6-3 vote.
2. Purpose of the Bill: According to the author:

Last year, the City of Anaheim began its transition from at-large city council elections to district-based elections after a lawsuit by [the] American Civil Liberties Union of Southern California and Latino activists in 2012. In November 2014, the people of Anaheim approved two ballot measures that would effect this transition. The first approved district maps provided for two Latino plurality districts and one majority Latino district.

In November of 2015, the Anaheim City Council scheduled the elections for the two Latino plurality districts for 2016, but scheduled the election for the only Latino majority district for 2018. The scheduling of the only Latino majority district in a midterm election year could have the effect of putting the election for a district whose population consists of a majority of a protected class during a cycle in which turnout is traditionally decreased.

This decision created an outrage amongst the Latino community in the city, and forced Anaheim to schedule the majority Latino district for 2016 before facing another lawsuit [for] violating the state and Federal Voting Rights Act.

Under existing law, nothing would stop another city from following Anaheim’s example in scheduling its staggered city council districts in a manner that would dilute and suppress the vote of a protected class in violation of the state Voting Rights Act.

AB 350 will require local governments that are transitioning from at-large to district-based elections under a court order to hold at least two public hearings before drawing a draft map and two public hearings after the one or more draft maps are drawn. For governments who are willing to transition to district-based elections, this bill will allow cities to have 90 days to pass a resolution of intent or an ordinance to transition to district-based [elections] before any legal action can be taken by outside parties alleging a violation of the CVRA.

1. 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.
   
   The first case brought under the CVRA was filed in 2004, and the jurisdiction that was the target of that case—the City of Modesto—challenged the constitutionality of the law. Ultimately, the City of Modesto appealed that case all the way to the United States Supreme Court, which rejected the city's appeal in October 2007. The legal uncertainty surrounding the CVRA may have limited the impacts of that law in the first five years after its passage.
   
   Since the case in Modesto was resolved, however, many local jurisdictions have converted or are in the process of converting from an at-large method of election to district-based elections due to the CVRA. In all, at least 160 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.
2. Arguments in Support: In support of this bill, the League of California Cities writes:

[T]he CVRA provides generous recovery for attorney's fees. As a consequence, cities have incurred extremely high legal costs. Over the past 7 years local agencies have paid an estimated 20 million dollars plus in legal fees to plaintiffs' attorneys. This does not include internal costs paid by local agencies for their own staff that are entangled in CVRA related litigation. As it stands, millions of taxpayer general fund dollars are being taken off the table for increased civic engagement, infrastructure investment, public safety or other critical public services and instead going to plaintiffs' attorneys.

The most recent amendments reflected in AB 350 ensure that cities are protected from serial litigants who have been targeting cities and other local agencies for financial gain rather than working with the local jurisdiction and stakeholder groups to ensure the best possible outcome. The League supports increased civic outreach and is committed to encouraging our cities to provide outreach to minority and non-English speaking communities throughout this process. AB 350 will boost outreach efforts to all communities. By providing a safe harbor period for cities that are making good faith efforts to switch to districts by ordinance, cities are incentivized to work with all stakeholders on district conversion through increased public outreach without the fear of soaring legal fees.

1. Related Legislation: AB 278 (Roger Hernández), which is also being heard in this committee today, permits any city, regardless of population size, to change the method of electing its governing board members from at-large to a by-district method of election without receiving voter approval and provides that if voter approval is sought, the proposed boundaries for the districts are not required to appear on the ballot.
2. Previous Legislation: AB 1440 (Campos), Chapter 873, Statutes of 2014, requires any political subdivision that is switching from an at-large method of election to a district-based method of election to hold at least two public hearings on the proposed district boundaries prior to adopting those boundaries, among other provisions.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California (prior version)

City Clerks Association of California

League of California Cities

League of California Cities Latino Caucus

Mexican American Legal Defense and Educational Fund (prior version)

Opposition

None on file.

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

Date of Hearing:

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 350

Author:(Alejo) – As Amended Ver:August 17, 2016

FOR CONCURRENCE

SUBJECT: california voting rights act: disctrict-based elections: Preapproval Hearings

KEY ISSUES:

1. Should a political subdivision that changes from an at-large to a district-based election system hold public hearings both before and after drawing a preliminary map or maps of proposed district boundaries?
2. Should a prospective plaintiff who provides prescribed notice that a political subdivision's use of an at-large election system may violate the California Voting Rights Act be reimbursed for the cost of work product generated in support of the notice, if the political subdivision adopts a district-based election system?

SYNOPSIS

As originally heard by this Committee, this bill would have extended the reach of the California Voting Rights Act of 2001 (CVRA) to permit challenges to a district-based election system if it could be shown that, due to racially polarized voting patterns, the district-based system impaired the ability of a protected class to elect candidates of its choice. This would have constituted a significance change in existing law as the CVRA currently only permits members of a protected class to challenge an "at-large" election system. Historically, at-large elections were suspect because they invariably dilute the vote of a minority. District elections – by increasing the likelihood that a minority could form a majority within a single district – were generally seen as one possible solution to the discriminatory effects of at-large elections. AB 350 recognized, however, that a district-based election system can also dilute minority voting power, depending upon how lines are drawn, the geographical distribution of minority voters, and the degree of racially polarized voting. However, AB 350 was substantially amended in the Senate. In its current form, and as now before this Committee, AB 350 would make two more modest changes to existing law. First, it would require that a political subdivision that establishes, or changes to, a district-based election system hold public hearings both before and after drawing a preliminary map of the proposed district boundaries. Current law only requires public hearings prior to the public hearing at which the governing body of the political subdivision votes to approve or defeat a proposal to adopt a district-based election system. Second, the bill would establish procedures for providing reimbursement, as specified, to a prospective plaintiff whose notice of a potential CVRA violation prompted a political subdivision to change from an at-large to a district-based election system. This bill is supported by several civil rights groups. There is no known opposition to the bill in its current form.

SUMMARY: Requires a political subdivision that adopts a district-based election system to hold public hearings, as specified, before and after drawing a preliminary map of the proposed district boundaries, and establishes a procedure for a prospective plaintiff to send notice to a political division of a possible violation of the California Voting Rights Act (CVRA) and seek reasonable reimbursement (not to exceed $30,000) for work product that prompts a political subdivision to change from an at-large to district-based election system. Specifically this bill:

1. Requires a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, to do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat an ordinance establishing district-based elections:
   1. Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision shall hold at least two public hearings over a period of no more than thirty days, at which the public is invited to provide input regarding the composition of the districts. Before these hearings, the political subdivision may conduct outreach to the public, including to non-English-speaking communities, to explain the districting process and to encourage public participation.
   2. After all draft maps are drawn, the political subdivision shall publish and make available for release at least one draft map and, if members of the governing body of the political subdivision will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The political subdivision shall also hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections, if applicable. Specifies that if a draft map is revised at or following a hearing, then the revised map shall be published and made available to the public for at least seven days before being adopted.
2. Requires the governing body, when determining the final sequence of district elections for purposes to creating staggered terms of office, to give special consideration to the purposes of the CVRA and to take into account the preferences expressed by members of the districts.
3. Applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election.
4. Requires that before commencing a CVRA enforcement action, a prospective plaintiff shall send by certified mail a written notice to the clerk of the political subdivision against which the action would be brought asserting that the political subdivision’s method of conducting elections may violate the CVRA. Specifies that a prospective plaintiff may not commence an enforcement action within 45 days of the political subdivision’s receipt of the written notice.
5. Provides that before receiving written notice, or within 45 days of receipt of a notice, a political subdivision may pass a resolution outlining its intention to transition from at-large to district-based elections, the steps it will undertake to facilitate this transition, and an estimated time frame for doing so. If a political subdivision passes such a resolution, a prospective plaintiff shall not commence an enforcement action within 90 days of the resolution’s passage.
6. Provides that if a political subdivision adopts an ordinance establishing district-based elections, a prospective plaintiff who sent a written notice before the political subdivision passed its resolution of intention may, within 30 days of the ordinance’s adoption, demand reimbursement for the cost of the work product generated to support the notice, as specified. Specifies that the amount of reimbursement shall not exceed $30,000, as adjusted annually to the Consumer Price Index for All Urban Consumers, as published by the United States Department of Labor.

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 CVRA, 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 fiscal.

COMMENTS: The CVRA 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 the 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. As originally heard by this Committee, AB 350 would have expanded the CVRA in two important ways. First, it would have allowed 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 would have provided the court with a longer list of specific remedies in cases of a violation.

Senate Amendments: AB 350 was substantially amended in the Senate. In its current form, the bill makes two important, but arguably more modest, changes to existing law. First, the bill would now require that a political subdivision that establishes, or changes to, a district-based election system hold public hearings both before and after drawing a preliminary map of the proposed district boundaries. Current law only requires public hearings prior to the public hearing at which the governing body of the political subdivision votes to approve or defeat a proposal to adopt a district-based election system.

Second, the bill would establish procedures by which a prospective plaintiff could notify a political subdivision that an at-large election system may violate the CVRA. If the political division, as a result of this notice, adopts a resolution to adopt a district-based election, this bill would allow the prospective plaintiff to seek reasonable reimbursement for any work product submitted in support of the notice. Such work product could be quite significant, including detailed demographic and statistical analyses. Specifically, this bill would require a prospective plaintiff, before commencing an action, to send written notice to the clerk of the political subdivision asserting that the political subdivision's method of conducting elections may violate CVRA. The prospective plaintiff would refrain from commencing an action during specified time frames, during which the governing body of the political subdivision could consider and possibly adopt an ordinance establishing district-based elections. If the political subdivision adopts such an ordinance, a prospective plaintiff who sent a notice of possible CVRA violation could seek reimbursement for the cost of any work product that was generated in support of that notice. In sum, the bill establishes procedures by which a prospective plaintiff could seek compensation for the work performed in documenting a CVRA violation and bringing it to the attention of the governing body. The bill specifies that compensation shall not exceed $30,000, as adjusted annually to the Consumer Price Index.

Governor Has Vetoed Similar Legislation the Last Two Years. Unlike the bill originally heard by this Committee, the current version of the bill does not appear to have the same provisions that prompted the Governor to veto previous efforts to strengthen CVRA. For example, SB 1365 (Padilla, 2014) prohibited any system that impaired the ability of a protected class to elect candidates of its choice or influence the outcome of an election. The Governor's terse veto stated: "While 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." Similarly, AB 182 (Alejo, 2015) was also vetoed, with the Governor writing: "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." The bill presently before this Committee, however, is substantially different from either of those prior efforts. Most notably, this bill does not extend CVRA to permit an action against district-based elections. Rather, it simply requires an additional public hearing after preliminary maps have been drawn. The only change that this bill makes, relative to CVRA, is to permit a prospective plaintiff to seek compensation for any work product that prompts a political division to adopt a district-based election system instead of facing what would most certainly be the much higher costs of defending a CVRA challenge.

ARGUMENTS IN SUPPORT: According to the author:

Last year, the City of Anaheim began its transition from at-large city council elections to district-based elections after a lawsuit by American Civil Liberties Union of Southern California and Latino activists in 2012. In November 2014, the people of Anaheim approved two ballot measures that would effect this transition. The first approved district maps provided for two Latino plurality districts and one majority Latino district.

In November of 2015, the Anaheim City Council scheduled the elections for the two Latino plurality district for 2016, but scheduled the elections for the only Latino majority district for 2018. The scheduling of the only Latino majority district in a midterm election year could have the effect of putting the elections for a district whose population consists of a majority of a protected class during a cycle in which turnout is traditionally decreased.

This decision created an outrage amongst the Latino community in the city, and forced Anaheim to schedule the majority Latino district for 2016 before facing another lawsuit violating the state and Federal Voting Rights Act.

Under existing law, nothing would stop another city from following Anaheim’s example in scheduling its staggered city council districts in a manner that would dilute and suppress the vote of a protected class in violation of the state Voting Rights Act.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union

California Common Cause

Mexican American Legal Defense and Educational Fund

League of California Cities

League of California Cities Latino Caucus

Opposition

None on file

Analysis Prepared by: Thomas Clark and Leora Gershenzon / JUD. / (916) 319-2334

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 350

Author:(Alejo)

As Amended Ver:August 17, 2016

Majority vote

(vote not relevant)

Original Committee Reference: E. & R.

SUMMARY: Requires a political subdivision that changes to, or establishes, district-based elections to hold at least two public hearings both before and after drawing a preliminary map or maps of the proposed district boundaries, as specified. Requires that written notice be provided before an action can be brought against a political subdivision under the California Voting Rights Act of 2001 (CVRA).

The Senate amendments delete the Assembly version of this bill, and instead:

1. Require a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, to do all of the following before adopting the ordinance establishing district-based elections:
   1. Hold at least two public hearings over a period of no more than 30 days before drawing a draft map or maps of the proposed boundaries, as specified;
   2. After draft map or maps are drawn, publish and make the draft maps available along with the potential sequence of elections if the terms of office under the new districts are to be staggered;
   3. Hold at least two additional public hearings after the release of the draft map or maps, with the first hearing held no sooner than seven days after the release of the map or maps, and the second hearing held no more than 45 days after the first hearing, as specified;
   4. Make any revised draft map available to the public for at least seven days before the map can be adopted; and,
   5. Give special consideration to the purposes of the CVRA, as specified, when determining the sequence of district elections if the terms of office are to be staggered.
2. Require a prospective plaintiff to send a written notice to a political subdivision before commencing an action against that political subdivision under the CVRA, as specified.
   1. Prohibit a prospective plaintiff from commencing an action under the CVRA within 45 days of the written notice being provided.
   2. Permit a political subdivision, prior to receiving a written notice or within 45 days after receiving a written notice, to pass a resolution outlining its intention to transition to district-based elections, as specified. Provide that an action to enforce the CVRA may not be commenced within 90 days of the passage of such a resolution.
   3. Limit the amount that a prospective plaintiff may recover from a political subdivision that voluntarily transitions to district-based elections after receiving a written notice to the lesser of $30,000 or the cost of the work product generated to support the notice, as specified.

EXISTING LAW requires a political subdivision that changes from an at-large method of election to a district-based election to hold at least two public hearings on a proposal to establish the district boundaries of the political subdivision before a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.

AS PASSED BY THE ASSEMBLY, this bill expanded the CVRA to allow challenges to district-based elections to be brought under the CVRA, as specified.

FISCAL EFFECT: According to the Senate Appropriations Committee, costs for districts to hold the required public hearings would be state reimbursable, and statewide costs would depend on the number of governments changing to district-based elections. Costs would be minimized to the extent the public hearings are consolidated with regularly-scheduled meetings of the governing body. Overall, annual state costs are unknown, but likely minor.

COMMENTS: According to the author, "Last year, the City of Anaheim began its transition from at-large city council elections to district-based elections after a lawsuit by American Civil Liberties Union of Southern California and Latino activists in 2012. In November 2014, the people of Anaheim approved two ballot measures that would effect this transition. The first approved district maps provided for two Latino plurality districts and one majority Latino district.

"In November of 2015, the Anaheim City Council scheduled the elections for the two Latino plurality districts for 2016, but scheduled the elections for the only Latino majority district for 2018. The scheduling of the only Latino majority district in a midterm election year could have the effect of putting the elections for a district whose population consists of a majority of a protected class during a cycle in which turnout is traditionally decreased.

"AB 350 will require local governments that are transitioning from at-large to district-based elections under a court order to hold at least two public hearing before drawing a draft map and two public hearings after the one or more draft maps are drawn.

"AB 350 will require local governments that are transitioning from at-large to district-based elections under a court order to hold at least two public hearing before drawing a draft map and two public hearings after the one or more draft maps are drawn. For governments who are willing to transition to district-based elections, this bill will allow cities to have 90 days to pass a resolution of intent or an ordinance to transition to district-based [elections] before any legal action can be taken by outside parties alleging a violation of the CVRA."

This bill was substantially amended in the Senate and the Assembly-approved provisions of this bill were deleted. This bill, as amended in the Senate, is inconsistent with Assembly actions.

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094 FN: 0004921

 THIRD READING  

Bill No: AB 350

Author:

:

Vote:

SENATE ELECTIONS & C.A. COMMITTEE: 4-1, 6/21/16

AYES: Allen, Hancock, Hertzberg, Liu

NOES: Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 50-25, 1/25/16 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill requires a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries as specified, and establishes procedures for initiating a legal action to enforce the California Voting Rights Act (CVRA).

Senate Floor Amendments of 8/17/16 strike the word “concrete” and replaces it with “specific,” which is the proper term given its intent.

ANALYSIS:

Existing law:

1. Requires a political subdivision that changes from an at-large method of election to a district-based election to hold at least two public hearings on a proposal to establish the district boundaries of the political subdivision prior to a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.
2. Applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election.
3. Provides the following terms have the following meanings:
   1. At-large method of election” means any of the following methods of electing members to the governing body of a political subdivision:
      1. One in which the voters of the entire jurisdiction elect the members to the governing body.
      2. One required to reside within given areas of the jurisdiction and the voters of the entire jurisdiction elect the members to the governing body.
      3. One which combines at-large elections with district-based elections.
   2. “District-based elections” means a method of electing members to the governing body of a political subdivision in which the candidate must reside within an election district that is a divisible part of the political subdivision and is elected only by voters residing within that election district.
   3. “Political subdivision” means a geographic area of representation created for the provision of government services, including, but not limited to, a general law city, general law county, charter city, charter county, charter city and county, a school district, community college district, or other district organized pursuant to state law.
      
4. Provides an at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class, as defined, pursuant to the CVRA.
   
5. Sets forth the factors establishing a violation of the CVRA as specified.

This bill:

1. Requires a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat an ordinance establishing district-based elections:
   
   1. Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision shall hold at least two public hearings over a period of no more than thirty days, at which the public is invited to provide input regarding the composition of the districts. Before these hearings, the political subdivision may conduct outreach to the public, including to non-English-speaking communities, to explain the districting process and to encourage public participation.
   2. After all draft maps are drawn, the political subdivision shall publish and make available for release at least one draft map and, if members of the governing body of the political subdivision will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The political subdivision shall also hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections, if applicable. Requires the first version of a draft map to be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, requires the revised map be published and made available to the public for at least seven days before being adopted.
2. Provides that in determining the final sequence of the district elections conducted in a political subdivision in which members of the governing body will be elected at different times to provide for staggered terms of office, the governing body shall give special consideration to the purposes of the CVRA, and shall take into account the preferences expressed by members of the districts.
3. Applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election.
4. Requires that before commencing a CVRA enforcement action, a prospective plaintiff shall send by certified mail a written notice to the clerk of the political subdivision against which the action would be brought asserting that the political subdivision’s method of conducting elections may violate the CVRA.
   
5. Requires a prospective plaintiff not commence an enforcement action within 45 days of the political subdivision’s receipt of the written notice described above.
   
6. Provides that before receiving written notice, or within 45 days of receipt of a notice, a political subdivision may pass a resolution outlining its intention to transition from at-large to district-based elections, the specific steps it will undertake to facilitate this transition, and an estimated time frame for doing so.
   
7. Provides if a political subdivision passes a resolution as discussed above, a prospective plaintiff shall not commence an enforcement action within 90 days of the resolution’s passage.

If a political subdivision adopts an ordinance establishing district-based elections, a prospective plaintiff who sent a written notice before the political subdivision passed its resolution of intention may, within 30 days of the ordinance’s adoption, demand reimbursement for the cost of the work product generated to support the notice. A prospective plaintiff shall make the demand in writing and shall substantiate the demand with financial documentation, such as a detailed invoice for demography services. A political subdivision may request additional documentation if the provided documentation is insufficient to corroborate the claimed costs. Requires a political subdivision reimburse a prospective plaintiff for reasonable costs claimed, or in an amount to which the parties mutually agree, within 45 days of receiving the written demand, except as provided. In all cases, the amount of the reimbursement shall not exceed the cap described below. If more than one prospective plaintiff is entitled to reimbursement, requires the political subdivision reimburse the prospective plaintiffs in the order in which they sent a written notice as described, and the 45-day time period shall apply only to reimbursement of the first prospective plaintiff who sent a written notice. The cumulative amount of reimbursement to all prospective plaintiffs shall not exceed the cap described below.

1. Caps the amount of reimbursement described above at $30,000, as adjusted annually to the Consumer Price Index for All Urban Consumers, U.S. city average, as published by the United States Department of Labor.
   
2. Makes conforming changes to specified terms and their meanings in existing law.

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.

Prior to the enactment of the CVRA, concerns about racial block voting led to the consideration of a number of bills that sought to prohibit at-large voting in certain political subdivisions (for instance, AB 2 (Chacon, of the 1989-90 regular session); AB 1002 (Chacon, of the 1991-92 regular session); AB 2482 (Baca, of the 1993-94 regular session); and AB 172 (Firebaugh, of the 1999-2000 regular session) all proposed to prohibit at-large elections in school districts that met certain criteria; additionally, AB 8 (Cardenas) and AB 1328 (Cardenas, both of the 1999-2000 regular session), sought to eliminate the at-large election system within the Los Angeles Community College District). None of these bills became law—in many cases the bills were vetoed, while in other cases, the bills failed to reach the Governor's desk. For those bills that were vetoed, the veto messages typically stated that the decision to create single-member districts was best made at the local level, and not by the state.

The CVRA followed these unsuccessful efforts; rather than prohibiting at-large elections in certain political subdivisions, the CVRA instead established a policy that an at-large method of election could not be imposed in situations where it could be demonstrated that such a policy had the effect of impairing 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. The CVRA specifically provided for a prevailing plaintiff party to have the ability to recover attorney's fees and litigation expenses to increase the likelihood that attorneys would be willing to bring challenges under the law.

The first case brought under the CVRA was filed in 2004, and the jurisdiction that was the target of that case - the City of Modesto - challenged the constitutionality of the law. Ultimately, the City of Modesto appealed that case all the way to the United States Supreme Court, which rejected the city's appeal in October 2007. The legal uncertainty surrounding the CVRA may have limited the impacts of that law in the first five years after its passage.

Since the case in Modesto was resolved, however, many local jurisdictions have converted or are in the process of converting from an at-large method of election to district-based elections due to the CVRA. Generally, local government bodies must receive voter approval to move from an at-large method of election to a district-based method of election for selecting governing board members, though the State Board of Education (SBE) and the Board of Governors (BOG) of the California Community Colleges have the authority to waive the voter-approval requirement for school districts and community college districts, respectively. In all, the SBE and the BOG have combined to grant nearly 120 requests for waivers from the voter-approval requirement for school districts and community college districts that have sought to move to district-based elections for board members due to concerns about potential liability under the CVRA. According to information compiled by the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, at least a dozen other local jurisdictions statewide have transitioned to electing governing board members by districts as a result of settlements to lawsuits brought under the CVRA. In all, approximately 130 local government bodies have transitioned from at-large to district-based elections since the enactment of the CVRA. While some jurisdictions did so in response to litigation or threats of litigation, other jurisdictions proactively changed election methods because they believed they could be susceptible to a legal challenge under the CVRA, and they wished to avoid the potential expense of litigation.

Comments

1. According to the author, “Last year, the City of Anaheim began its transition from at-large city council elections to district-based elections after a lawsuit by American Civil Liberties Union of Southern California and Latino activists in 2012. In November 2014, the people of Anaheim approved two ballot measures that would effect this transition. The first approved district maps provided for two Latino plurality districts and one majority Latino district.
   

In November of 2015, the Anaheim City Council scheduled the elections for the two Latino plurality district for 2016, but scheduled the elections for the only Latino majority district for 2018. The scheduling of the only Latino majority district in a midterm election year could have the effect of putting the elections for a district whose population consists of a majority of a protected class during a cycle in which turnout is traditionally decreased.

This decision created an outrage amongst the Latino community in the city, and forced Anaheim to schedule the majority Latino district for 2016 before facing another lawsuit violating the state and Federal Voting Rights Act.

Under existing law, nothing would stop another city from following Anaheim’s example in scheduling its staggered city council districts in a manner that would dilute and suppress the vote of a protected class in violation of the state Voting Rights Act.

AB 350 will require local governments that are transitioning from at-large to district-based elections under a court order to hold at least two public hearing before drawing a draft map and two public hearings after the one or more drafts maps are drawn. For governments who are willing to transition to district-based elections, this bill will allow cities to have 90 days to pass a resolution of intent or an ordinance to transition to district-based before any legal action can be taken by outside parties alleging a violation of the CVRA.”

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee: Costs for districts to hold the required public hearings would be state reimbursable, and statewide costs would depend on the number of governments changing to district-based elections. Costs would be minimized to the extent the public hearings are consolidated with regularly-scheduled meetings of the governing body. Overall, annual state costs are unknown, but likely minor.

SUPPORT: (Verified 8/11/16)

American Civil Liberties Union

California Common Cause

Mexican American Legal Defense and Educational Fund

League of California Cities

League of California Cities Latino Caucus

OPPOSITION: (Verified 8/11/16)

None received

ASSEMBLY FLOOR: 50-25, 1/25/16

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

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: Dababneh, Eduardo Garcia, Hadley, Nazarian

Prepared by:

8/18/16 16:34:40

**** END ****

 THIRD READING  

Bill No: AB 350

Author:

:

Vote:

SENATE ELECTIONS & C.A. COMMITTEE: 4-1, 6/21/16

AYES: Allen, Hancock, Hertzberg, Liu

NOES: Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 50-25, 1/25/16 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill requires a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries as specified, and establishes procedures for initiating a legal action to enforce the California Voting Rights Act (CVRA).

ANALYSIS:

Existing law:

1. Requires a political subdivision that changes from an at-large method of election to a district-based election to hold at least two public hearings on a proposal to establish the district boundaries of the political subdivision prior to a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.
2. Applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election.
3. Provides the following terms have the following meanings:
   1. At-large method of election” means any of the following methods of electing members to the governing body of a political subdivision:
      1. One in which the voters of the entire jurisdiction elect the members to the governing body.
      2. One required to reside within given areas of the jurisdiction and the voters of the entire jurisdiction elect the members to the governing body.
      3. One which combines at-large elections with district-based elections.
   2. “District-based elections” means a method of electing members to the governing body of a political subdivision in which the candidate must reside within an election district that is a divisible part of the political subdivision and is elected only by voters residing within that election district.
   3. “Political subdivision” means a geographic area of representation created for the provision of government services, including, but not limited to, a general law city, general law county, charter city, charter county, charter city and county, a school district, community college district, or other district organized pursuant to state law.
      
4. Provides an at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class, as defined, pursuant to the CVRA.
   
5. Sets forth the factors establishing a violation of the CVRA as specified.

This bill:

1. Requires a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat an ordinance establishing district-based elections:
   
   1. Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision shall hold at least two public hearings over a period of no more than thirty days, at which the public is invited to provide input regarding the composition of the districts. Before these hearings, the political subdivision may conduct outreach to the public, including to non-English-speaking communities, to explain the districting process and to encourage public participation.
   2. After all draft maps are drawn, the political subdivision shall publish and make available for release at least one draft map and, if members of the governing body of the political subdivision will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The political subdivision shall also hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections, if applicable. Requires the first version of a draft map to be published at least seven days before consideration at a hearing. If a draft map is revised at or following a hearing, requires the revised map be published and made available to the public for at least seven days before being adopted.
2. Provides that in determining the final sequence of the district elections conducted in a political subdivision in which members of the governing body will be elected at different times to provide for staggered terms of office, the governing body shall give special consideration to the purposes of the CVRA, and shall take into account the preferences expressed by members of the districts.
3. Applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election.
4. Requires that before commencing a CVRA enforcement action, a prospective plaintiff shall send by certified mail a written notice to the clerk of the political subdivision against which the action would be brought asserting that the political subdivision’s method of conducting elections may violate the CVRA.
   
5. Requires a prospective plaintiff not commence an enforcement action within 45 days of the political subdivision’s receipt of the written notice described above.
   
6. Provides that before receiving written notice, or within 45 days of receipt of a notice, a political subdivision may pass a resolution outlining its intention to transition from at-large to district-based elections, the concrete steps it will undertake to facilitate this transition, and an estimated time frame for doing so.
   
7. Provides if a political subdivision passes a resolution as discussed above, a prospective plaintiff shall not commence an enforcement action within 90 days of the resolution’s passage.

If a political subdivision adopts an ordinance establishing district-based elections, a prospective plaintiff who sent a written notice before the political subdivision passed its resolution of intention may, within 30 days of the ordinance’s adoption, demand reimbursement for the cost of the work product generated to support the notice. A prospective plaintiff shall make the demand in writing and shall substantiate the demand with financial documentation, such as a detailed invoice for demography services. A political subdivision may request additional documentation if the provided documentation is insufficient to corroborate the claimed costs. Requires a political subdivision reimburse a prospective plaintiff for reasonable costs claimed, or in an amount to which the parties mutually agree, within 45 days of receiving the written demand, except as provided. In all cases, the amount of the reimbursement shall not exceed the cap described below. If more than one prospective plaintiff is entitled to reimbursement, requires the political subdivision reimburse the prospective plaintiffs in the order in which they sent a written notice as described, and the 45-day time period shall apply only to reimbursement of the first prospective plaintiff who sent a written notice. The cumulative amount of reimbursement to all prospective plaintiffs shall not exceed the cap described below.

1. Caps the amount of reimbursement described above at $30,000, as adjusted annually to the Consumer Price Index for All Urban Consumers, U.S. city average, as published by the United States Department of Labor.
   
2. Makes conforming changes to specified terms and their meanings in existing law.

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.

Prior to the enactment of the CVRA, concerns about racial block voting led to the consideration of a number of bills that sought to prohibit at-large voting in certain political subdivisions (for instance, AB 2 (Chacon, of the 1989-90 regular session); AB 1002 (Chacon, of the 1991-92 regular session); AB 2482 (Baca, of the 1993-94 regular session); and AB 172 (Firebaugh, of the 1999-2000 regular session) all proposed to prohibit at-large elections in school districts that met certain criteria; additionally, AB 8 (Cardenas) and AB 1328 (Cardenas, both of the 1999-2000 regular session), sought to eliminate the at-large election system within the Los Angeles Community College District). None of these bills became law—in many cases the bills were vetoed, while in other cases, the bills failed to reach the Governor's desk. For those bills that were vetoed, the veto messages typically stated that the decision to create single-member districts was best made at the local level, and not by the state.

The CVRA followed these unsuccessful efforts; rather than prohibiting at-large elections in certain political subdivisions, the CVRA instead established a policy that an at-large method of election could not be imposed in situations where it could be demonstrated that such a policy had the effect of impairing 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. The CVRA specifically provided for a prevailing plaintiff party to have the ability to recover attorney's fees and litigation expenses to increase the likelihood that attorneys would be willing to bring challenges under the law.

The first case brought under the CVRA was filed in 2004, and the jurisdiction that was the target of that case - the City of Modesto - challenged the constitutionality of the law. Ultimately, the City of Modesto appealed that case all the way to the United States Supreme Court, which rejected the city's appeal in October 2007. The legal uncertainty surrounding the CVRA may have limited the impacts of that law in the first five years after its passage.

Since the case in Modesto was resolved, however, many local jurisdictions have converted or are in the process of converting from an at-large method of election to district-based elections due to the CVRA. Generally, local government bodies must receive voter approval to move from an at-large method of election to a district-based method of election for selecting governing board members, though the State Board of Education (SBE) and the Board of Governors (BOG) of the California Community Colleges have the authority to waive the voter-approval requirement for school districts and community college districts, respectively. In all, the SBE and the BOG have combined to grant nearly 120 requests for waivers from the voter-approval requirement for school districts and community college districts that have sought to move to district-based elections for board members due to concerns about potential liability under the CVRA. According to information compiled by the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, at least a dozen other local jurisdictions statewide have transitioned to electing governing board members by districts as a result of settlements to lawsuits brought under the CVRA. In all, approximately 130 local government bodies have transitioned from at-large to district-based elections since the enactment of the CVRA. While some jurisdictions did so in response to litigation or threats of litigation, other jurisdictions proactively changed election methods because they believed they could be susceptible to a legal challenge under the CVRA, and they wished to avoid the potential expense of litigation.

Comments

1. According to the author, “Last year, the City of Anaheim began its transition from at-large city council elections to district-based elections after a lawsuit by American Civil Liberties Union of Southern California and Latino activists in 2012. In November 2014, the people of Anaheim approved two ballot measures that would effect this transition. The first approved district maps provided for two Latino plurality districts and one majority Latino district.
   

In November of 2015, the Anaheim City Council scheduled the elections for the two Latino plurality district for 2016, but scheduled the elections for the only Latino majority district for 2018. The scheduling of the only Latino majority district in a midterm election year could have the effect of putting the elections for a district whose population consists of a majority of a protected class during a cycle in which turnout is traditionally decreased.

This decision created an outrage amongst the Latino community in the city, and forced Anaheim to schedule the majority Latino district for 2016 before facing another lawsuit violating the state and Federal Voting Rights Act.

Under existing law, nothing would stop another city from following Anaheim’s example in scheduling its staggered city council districts in a manner that would dilute and suppress the vote of a protected class in violation of the state Voting Rights Act.

AB 350 will require local governments that are transitioning from at-large to district-based elections under a court order to hold at least two public hearing before drawing a draft map and two public hearings after the one or more drafts maps are drawn. For governments who are willing to transition to district-based elections, this bill will allow cities to have 90 days to pass a resolution of intent or an ordinance to transition to district-based before any legal action can be taken by outside parties alleging a violation of the CVRA.”

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee: Costs for districts to hold the required public hearings would be state reimbursable, and statewide costs would depend on the number of governments changing to district-based elections. Costs would be minimized to the extent the public hearings are consolidated with regularly-scheduled meetings of the governing body. Overall, annual state costs are unknown, but likely minor.

SUPPORT: (Verified 8/11/16)

American Civil Liberties Union

California Common Cause

Mexican American Legal Defense and Educational Fund

League of California Cities

OPPOSITION: (Verified 8/11/16)

None received

ASSEMBLY FLOOR: 50-25, 1/25/16

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

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: Dababneh, Eduardo Garcia, Hadley, Nazarian

Prepared by:

8/15/16 20:01:53

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 350 (Alejo) - District-based municipal elections: preapproval hearings

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 11, 2016

Bill Summary:

AB 350 would require a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries, as specified.

Fiscal Impact:

Costs for districts to hold the required public hearings would be state reimbursable, and statewide costs would depend on the number of governments changing to district-based elections. Costs would be minimized to the extent the public hearings are consolidated with regularly-scheduled meetings of the governing body. Overall, annual state costs are unknown, but likely minor.

Author Amendments:

Make clarifying changes and allow a safe harbor for political subdivisions who are acting in good faith.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 350 (Alejo) - District-based municipal elections: preapproval hearings

This bill may meet the criteria for referral to the Suspense File.

Bill Summary:

AB 350 would require a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries, as specified.

Fiscal Impact:

Costs for districts to hold the required public hearings would be state reimbursable, and statewide costs would depend on the number of governments changing to district-based elections. Costs would be minimized to the extent the public hearings are consolidated with regularly-scheduled meetings of the governing body. Overall, annual state costs are unknown, and could exceed $50,000 in a given year (General Fund).

Background:

The California Voting Rights Act (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. Approximately 130 local government bodies have transitioned from at-large to district-based elections since the enactment of the CVRA.

Proposed Law:

This bill would, among other things, do the following:

• Require a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat a proposal to establish the district boundaries of the political subdivision:
  • Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision shall hold at least two public hearings, as specified.
  • After all draft maps are drawn, the political subdivision shall release at least one draft map and, if members of the governing body of a political subdivision will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The political subdivision shall also hold at least two additional hearings over a period of no more than 45 days, as specified.
• Provide that in determining the final sequence of the district elections conducted in a political subdivision in which members of the governing body will be elected at different times to provide for staggered terms of office, the governing body shall give special consideration to the purposes of the CVRA, and shall take into account the preferences expressed by members of the districts.

Staff Comments:

Because the bill would impose additional duties on local agencies, this bill would impose a state-mandated local program. Total costs are unknown, but could exceed $50,000 in a given year.

-- END --

SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Ben Allen, Chair

2015 - 2016 Regular

Bill No: AB Hearing Date: 6/21/16

Subject: District-based municipal elections: preapproval hearings.

DIGEST

This bill requires a political subdivision that changes to, or establishes, district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries as specified.

ANALYSIS

Existing law:

1. Requires a political subdivision that changes from an at-large method of election to a district-based election to hold at least two public hearings on a proposal to establish the district boundaries of the political subdivision prior to a public hearing at which the governing body of the political subdivision votes to approve or defeat the proposal.
2. Applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election.
3. Provides the following terms have the following meanings:
   1. At-large method of election” means any of the following methods of electing members to the governing body of a political subdivision:
      1. One in which the voters of the entire jurisdiction elect the members to the governing body.
      2. One required to reside within given areas of the jurisdiction and the voters of the entire jurisdiction elect the members to the governing body.
      3. One which combines at-large elections with district-based elections.
   2. “District-based elections” means a method of electing members to the governing body of a political subdivision in which the candidate must reside within an election district that is a divisible part of the political subdivision and is elected only by voters residing within that election district.
   3. “Political subdivision” means a geographic area of representation created for the provision of government services, including, but not limited to, a general law city, general law county, charter city, charter county, charter city and county, a school district, community college district, or other district organized pursuant to state law.

This bill:

1. Requires a political subdivision that changes from an at-large method of election to a district-based election, or that establishes district-based elections, do all of the following before a public hearing at which the governing body of the political subdivision votes to approve or defeat a proposal to establish the district boundaries of the political subdivision:
   1. Before drawing a draft map or maps of the proposed boundaries of the districts, the political subdivision shall hold at least two public hearings over a period of no more than thirty days, at which the public is invited to provide input regarding the composition of the districts.
   2. After all draft maps are drawn, the political subdivision shall release at least one draft map and, if members of the governing body of a political subdivision will be elected in their districts at different times to provide for staggered terms of office, the potential sequence of the elections. The political subdivision shall also hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map or maps and the proposed sequence of elections, if applicable.
2. Provides that in determining the final sequence of the district elections conducted in a political subdivision in which members of the governing body will be elected at different times to provide for staggered terms of office, the governing body shall give special consideration to the purposes of the California Voting Rights Act of 2001(CVRA), and shall take into account the preferences expressed by members of the districts.
3. This section applies to, but is not limited to, a proposal that is required due to a court-imposed change from an at-large method of election to a district-based election.
4. Makes conforming changes to specified terms and their meanings in existing law.

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.

Prior to the enactment of the CVRA, concerns about racial block voting led to the consideration of a number of bills that sought to prohibit at-large voting in certain political subdivisions (for instance, AB 2 (Chacon, of the 1989-90 regular session); AB 1002 (Chacon, of the 1991-92 regular session); AB 2482 (Baca, of the 1993-94 regular session); and AB 172 (Firebaugh, of the 1999-2000 regular session) all proposed to prohibit at-large elections in school districts that met certain criteria; additionally, AB 8 (Cardenas) and AB 1328 (Cardenas, both of the 1999-2000 regular session), sought to eliminate the at-large election system within the Los Angeles Community College District). None of these bills became law—in many cases the bills were vetoed, while in other cases, the bills failed to reach the Governor's desk. For those bills that were vetoed, the veto messages typically stated that the decision to create single-member districts was best made at the local level, and not by the state.

The CVRA followed these unsuccessful efforts; rather than prohibiting at-large elections in certain political subdivisions, the CVRA instead established a policy that an at-large method of election could not be imposed in situations where it could be demonstrated that such a policy had the effect of impairing 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. The CVRA specifically provided for a prevailing plaintiff party to have the ability to recover attorney's fees and litigation expenses to increase the likelihood that attorneys would be willing to bring challenges under the law.

The first case brought under the CVRA was filed in 2004, and the jurisdiction that was the target of that case - the City of Modesto - challenged the constitutionality of the law. Ultimately, the City of Modesto appealed that case all the way to the United States Supreme Court, which rejected the city's appeal in October 2007. The legal uncertainty surrounding the CVRA may have limited the impacts of that law in the first five years after its passage.

Since the case in Modesto was resolved, however, many local jurisdictions have converted or are in the process of converting from an at-large method of election to district-based elections due to the CVRA. Generally, local government bodies must receive voter approval to move from an at-large method of election to a district-based method of election for selecting governing board members, though the State Board of Education (SBE) and the Board of Governors (BOG) of the California Community Colleges have the authority to waive the voter-approval requirement for school districts and community college districts, respectively. In all, the SBE and the BOG have combined to grant nearly 120 requests for waivers from the voter-approval requirement for school districts and community college districts that have sought to move to district-based elections for board members due to concerns about potential liability under the CVRA. According to information compiled by the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, at least a dozen other local jurisdictions statewide have transitioned to electing governing board members by districts as a result of settlements to lawsuits brought under the CVRA. In all, approximately 130 local government bodies have transitioned from at-large to district-based elections since the enactment of the CVRA. While some jurisdictions did so in response to litigation or threats of litigation, other jurisdictions proactively changed election methods because they believed they could be susceptible to a legal challenge under the CVRA, and they wished to avoid the potential expense of litigation.

COMMENTS

1. According to the author: Last year, the City of Anaheim began its transition from at-large city council elections to district-based elections after a lawsuit by the American Civil Liberties Union of Southern California and Latino activists in 2012. In November 2014, the people of Anaheim approved two ballot measures that would effect this transition. The first approved district maps provided for two Latino plurality districts and one majority Latino district.
   

In November of 2015, the Anaheim City Council scheduled the elections for the two Latino plurality district for 2016, but scheduled the elections for the only Latino majority district for 2018. The scheduling of the only Latino majority district in a midterm election year could have the effect of putting the elections for a district whose population consists of a majority of a protected class during a cycle in which turnout is traditionally decreased.

This decision created an outrage amongst the Latino community in the city, and forced Anaheim to schedule the majority Latino district for 2016 before facing another lawsuit violating the state and Federal Voting Right Act.

Nothing in existing law would stop another city from following Anaheim’s example in scheduling its staggered city council districts in a manner that would dilute and suppress the vote of a protected class in violation of the state Voting Rights Act.

AB 350 will require local governments that are transitioning from at-large to district-based elections under a court order to hold at least two public hearing before drawing a draft map and two public hearings after the one or more drafts maps are drawn.

RELATED/PRIOR LEGISLATION

AB 278 (R. Hernandez), permits any city, regardless of population size, to change the method of electing its governing board members from at-large to a by-district method of election without receiving voter approval and provides that if voter approval is sought, the proposed boundaries for the districts are not required to appear on the ballot. AB 2389 (Ridley-Thomas), permits a special district to change the method of electing its governing board members from at-large to a by-district method of election without receiving voter approval. Both bills are scheduled for hearing on June 29 in Senate Governance and Finance Committee.

AB 1440 (Campos, Ch. 873, Statutes of 2014), requires political subdivisions that change from an at-large method of election to a district-based election to hold public hearings, and requires special districts to hold a public hearing before adjusting the boundaries of a division.

AB 2715 (R. Hernandez), would have required cities with a population of 100,000 or more to elect city council members by district, instead of at-large. The bill was held in Assembly Appropriations Committee.

PRIOR ACTION

POSITIONS

Sponsor: Author

Support: American Civil Liberties Union

Mexican American Legal Defense and Educational Fund

Oppose: None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 350

Author:(Alejo)

As Amended Ver:January 4, 2016

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, 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, 2017, 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 election 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 or more protected classes to elect candidates of their choice if there is a demonstrated political cohesion among the protected classes; or,
   3. 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 350 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 it was not possible to create such a plan without increasing the size of the governing body, 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, or issuing an injunction to delay an election.

AB 182 (Alejo) of 2015, which was vetoed by Governor Brown on October 10, 2015, is substantially similar to this bill. Furthermore, AB 182 is similar to SB 1365 (Padilla) of 2014, which was also vetoed by Governor Brown. Governor Brown indicated in his veto messages for AB 182 and SB 1365 that he was vetoing those bills because he believes that the Voting Rights Act and the CVRA already provide safeguards to protect the voting rights of minority communities. There are just two substantive differences between the current version of this bill and the version of AB 182 that was vetoed by the Governor. Those differences are relatively modest, and do not appear to address the Governor's stated reason for vetoing either AB 182 or SB 1365.

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

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094 FN: 0002559

Date of Hearing: January 19, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 350

Author:(Alejo) – As Amended Ver:January 4, 2016

SUBJECT: California Voting Rights Act: DISTRICT-BASED ELECTIONS

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 of 2001 (CVRA) 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 the 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. Two similar measures were vetoed by the Governor last year and the year before, and it is unclear whether the relatively modest differences in this bill will yield a different outcome this year. This bill is sponsored by a broad coalition of civil rights groups, including the American Civil Liberties Union, Asian Americans Advancing Justice, League of Women Voters and the Mexican American Legal Defense and Educational Fund. The bill passed out of the Assembly Elections and Redistricting Committee last week on a 4-2 vote. There is no reported opposition to the bill.

SUMMARY: Expands the California Voting Rights Act of 2001 (CVRA) 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, 2017, 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, as specified.
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 or more protected classes to elect candidates of their choice, as specified.
   3. Issue an injunction to delay an election.
4. Provides for reasonable attorney’s fees for the prevailing plaintiff party. The prevailing defendant may only recover costs for a frivolous or unreasonable action.
5. Contains a severability clause.
6. 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.

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 CVRA, 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 CVRA 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 the 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." (Section 14029.)

Differences Between this Bill and Existing CVRA. This bill 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. This bill 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 their 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 – this bill permits the court to implement other appropriate remedies, including but not limited to: (1) increasing the size of the governing body; (2) creating 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; or (3) issuing an injunction to delay an election.

This bill 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.

In support of the bill, the author writes: "AB 350 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."

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, including the recently settled case from Palmdale in which the parties agreed to a district-based system, 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. The VRA was enacted by 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 this bill, 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; and issuing an injunction to delay an election. 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.

Governor Has Vetoed Similar Legislation the Last Two Years. This bill is substantially similar to SB 1365 (Padilla), 2014, which the Governor vetoed, stating: "While 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." SB 1365 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 350 only prohibits a system that impairs the ability to elect a candidate of its choice.

This bill is also nearly identical to last year's AB 182 (Alejo), which the Governor also vetoed, writing: "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." This bill eliminates one of the stated remedies that had been available under AB 182 – requiring elections for members of the governing body of the political subdivision to be held on the same day as a statewide election. However, since courts are not limited to imposing remedies that are listed in the bill, the exclusion of that remedy from the list may have little practical effect. If a court determines that requiring a local political subdivision's elections to be held on the same day as statewide elections would be an effective remedy, it appears that the court would still have the option of imposing that remedy under this bill, notwithstanding the fact that such a remedy is not explicitly listed in this bill. Given that and the Governor's general opposition statement in his veto message, it is not clear if the change in this bill will be sufficient to address the Governor's concerns.

ARGUMENTS IN SUPPORT: According to one of the several co-sponsors of this bill, the 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 state that "CVRA has played an essential role in ensuring local government compliance with state and federal voting rights protections against unlawful vote dilution in at-large election systems," and they believe that this measure will "similarly protect the voting rights of citizens casting ballots in certain district election systems." This 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."

Adds Secretary of State Alex Padilla:

Noting in state law protects minority voters from poorly drawn districts. Poorly drawn districts can have the same negative impact on voter turnout and equitable representation as at-large elections. Dividing up minority populations or cramming them into only one district can weaken their ability to even influence an election. AB 350 will create a process, building on the current California Voting Rights Act, for the public to challenge poorly drawn district elections.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California (co-sponsor)

Asian Americans Advancing Justice—Los Angeles (co-sponsor)

California Common Cause (co-sponsor)

Lawyers' Committee for Civil Rights of the San Francisco Bay Area (co-sponsor)

League of Women Voters of California (co-sponsor)

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

National Association of Latino Elected and Appointed Officials Educational Fund (co-sponsor)

California State Conference of the NAACP

Secretary of State Alex Padilla

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334

Date of Hearing: January 13, 2016

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Sebastian Ridley-Thomas, Chair

ABPCA Bill Id:AB 350 (

Author:Alejo) – As Amended Ver:January 4, 2016

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, 2017, 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 election 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 or more protected classes to elect candidates of their choice if there is a demonstrated political cohesion among the protected classes; or,
      
   3. 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.
   

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 350 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 350 provides a non-exhaustive list of remedies intended to provide guidance for courts and local governing bodies considering possible remedial action.

1. Previous Legislation: AB 182 (Alejo) of 2015, which was vetoed by Governor Brown on October 10, 2015, is substantially similar to this bill. Furthermore, AB 182 is similar to SB 1365 (Padilla) of 2014, which was also vetoed by Governor Brown. Governor Brown indicated in his veto messages for AB 182 and SB 1365 that he was vetoing those bills because he believes that the VRA and the CVRA already provide safeguards to protect the voting rights of minority communities. Staff to the author of this bill indicates that the author's office is "continu[ing] to have discussions with the Governor's office on how to best address the concerns that led to the veto of AB 182."
   
   There are just two substantive differences between the current version of this bill and the version of AB 182 that was vetoed by the Governor. First, both this bill and AB 182 provide limited legal protection to jurisdictions that have a district-based election system imposed on them by a court as a result of a proceeding brought under the current provisions of the CVRA. In AB 182, that protection was available for district-based election systems that were approved by a court on or after January 1, 2016—the operative date of AB 182 if it had been signed into law. This bill adjusts that date to January 1, 2017, which will be the operative date of this bill if it is signed into law.
   
   Second, both this bill and AB 182 allow a court to impose additional remedies when a violation is found if implementing a district-based election system would not provide the protected class of voters the opportunity to elect candidates of its choice from single-member districts. Both bills include a list of the types of additional remedies that the court might consider, though neither bill limits the court to considering only those remedies that are listed. One of the remedies listed in AB 182 is for the court to require elections of the governing body of a political subdivision to be held on the same day as a statewide election, as specified. This bill does not include that potential remedy in the list of additional remedies. However, since courts are not limited to imposing remedies that are listed in the bill, the exclusion of that remedy from the list may have little practical effect. If a court determined that requiring a local political subdivision's elections to be held on the same day as statewide elections would be an effective remedy, it appears that the court would still have the option of imposing that remedy under this bill, notwithstanding the fact that such a remedy is not explicitly listed in this bill.
   
   Given the fact that the Governor has vetoed legislation that is similar to this bill in each of the last two years, it is unclear whether there is reason to believe that this bill will receive more favorable consideration from the Governor. Notwithstanding any ongoing discussions between the author's office and the Governor's office, the differences between this bill and AB 182 are relatively modest, and do not appear to address the Governor's stated reason for vetoing either AB 182 or SB 1365. In fact, given the Governor's statement in the veto message for AB 182 that state and federal law contain "sufficient safeguards to ensure that the electoral strength of minority voters is protected," it is unclear whether there are any amendments that can be made to this bill to address the Governor's concerns.
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 election 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, at least 160 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 implement a single-member district-based election system that provides the protected class of voters the opportunity to elect candidates of its choice. If it was not possible to create such a plan without increasing the size of the governing body, the court would be authorized to order additional remedies. Although the remedies available to the court in such a situation are not expressly limited, this bill provides that appropriate remedies may include increasing the size of the governing body if approved by the voters of the jurisdiction, approving a single-member district-based election system in which a coalition of two or more protected classes that are politically cohesive can elect the candidates of their choice, or issuing an injunction to delay an election.

1. 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 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.

1. Arguments in Support: In support of this bill, Secretary of State Alex Padilla writes:

Thirteen years ago, California took the lead in protecting the voting rights of our diverse population with passage of the California Voting Rights Act. The Act sought to end the negative impact that at-large elections have on voter turnout and equitable representation.

The result is that dozens of school districts, community college districts and cities have moved or are moving to district based elections. However, once a local government adopts district based elections, voters lose the protections of the California Voting Rights Act.

Nothing in state law protects minority voters from poorly drawn districts. Poorly drawn districts can have the same negative impact on voter turnout and equitable representation as at-large elections. Dividing up minority populations or cramming them into only one district can weaken their ability to even influence an election. AB 350 will create a process, building on the current California Voting Rights Act, for the public to challenge poorly drawn district elections.

1. Double-Referral: This bill has been double-referred to the Assembly Judiciary Committee. Due to impending committee deadlines, if this bill is approved in this committee today, it would need to be heard in the Assembly Judiciary Committee next week, absent a waiver of the Joint Rules. However, if this bill is amended in committee today, that may prevent this bill from being heard in the Assembly Judiciary Committee before next week's deadline for committees to hear and report two-year bills. In light of this fact, if it is the committee's desire to approve this bill with amendments, committee staff recommends that this bill be passed out of committee with the author's commitment to take those amendments subsequent to passage by this 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)

League of Women Voters of California (co-sponsor)

California Common Cause

Secretary of State Alex Padilla

Opposition

None on file.

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