BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 278


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          Date of Hearing:  March 25, 2015


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          AB 278  
          (Roger Hernández) - As Amended March 18, 2015


          SUBJECT:  District-based municipal elections.


          SUMMARY:  Requires cities with a population of 100,000 or more,  
          as specified, to elect members of the city council by district.   
          Establishes procedures that these cities must follow when  
          creating city council districts.  Specifically, this bill:


          1)Requires the legislative body of a city with a population of  
            100,000 or more, as determined by the most recent federal  
            census, to adopt an ordinance, without submitting that  
            ordinance to the electors of the city for approval, that  
            provides for the members of the legislative body to be elected  
            by district.  Requires the ordinance to provide for members of  
            the legislative body to be elected in one of the following  
            ways:

             a)   By districts, in five, seven, or nine districts; or,

             b)   By districts in four, six, or eight districts, with an  
               elective mayor, as specified.











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          2)Requires a city that is establishing districts pursuant to  
            this bill to do all of the following as part of the process of  
            establishing districts:

             a)   Conduct hearings pursuant to the following requirements:
             
               i)     Hold at least four public hearings over a period of  
                 at least 30 days prior to drawing a draft map of  
                 boundaries;

               ii)    Hold at least two public hearings over a period of  
                 at least 30 days after a draft map of boundaries has been  
                 drawn and published, but before adopting a final map;



               iii)   Publish a calendar of hearings at least seven days  
                 before the first hearing;



               iv)    Hold hearings consistent with the following:



                  (1)       In locations that are accessible to people  
                    with disabilities;

                  (2)       To the greatest extent possible, in numerous  
                    locations to maximize community participation;



                  (3)       To the greatest extent possible, in locations  
                    accessible by public transportation;










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                  (4)       To the greatest extent possible, on different  
                    days of the week and at varying times to maximize  
                    community participation; and,



               v)     Provide simultaneous translation of a hearing held  
                 pursuant to this bill, if requested at least 24 hours  
                 before the hearing, in any language in which the city is  
                 required to post translated copies of ballots at any  
                 precinct in the city, pursuant to existing law.

             b)   Encourage public participation in the drawing of the  
               boundaries of the districts for the legislative body by  
               doing all of the following:

               i)     Developing an outreach and education plan, including  
                 media and social media strategy, in partnership with  
                 community organizations and individuals that advocate on  
                 behalf of, or provide services to, non-English-speaking  
                 individuals and individuals with disabilities;

               ii)    For each hearing required by this bill, publicizing  
                 at least one public service announcement using a media  
                 outlet that serves English-speaking individuals for  
                 purposes of informing individuals of the boundary-drawing  
                 process and the hearing date;



               iii)   For each hearing required by this bill, publicizing  
                 at least one public service announcement in any language  
                 in which the city is required to post translated copies  
                 of ballots at any precinct in the city, pursuant to  
                 existing law, using a media outlet that serves speakers  









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                 of that language, for purposes of informing individuals  
                 of the boundary-drawing process and the hearing date;



               iv)    Publishing an Internet Web site that explains the  
                 boundary-drawing process and its significance, that  
                 includes notice of the hearings, and that explains how  
                 public testimony may be submitted. Requires the Internet  
                 Web site to be available in each language in which the  
                 city is required to post translated copies of ballots at  
                 any precinct in the city, pursuant to existing law;



               v)     Providing the means for the submission of public  
                 testimony by mail, by telephone, online, and in person at  
                 the hearings; and,



               vi)    Conducting any other outreach or publicity the  
                 legislative body determines will encourage public  
                 participation in the drawing of the boundaries of the  
                 districts for the legislative body.



          3)Requires a city that is establishing districts pursuant to  
            this bill to establish and adjust the boundaries of those  
            districts in accordance with provisions of existing law  
            governing the adjustment of the boundaries of city council  
            districts, except as provided.

          4)Requires a city council that is establishing districts  
            pursuant to this bill to ensure that all of the following  
            criteria are satisfied in preparing the boundaries of the  









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            districts for the city council:



             a)   The boundaries are drawn to ensure fair and effective  
               representation of all city residents including racial,  
               ethnic, and language minorities;

             b)   The boundaries conform to the requirements of the United  
               States Constitution and all applicable federal and state  
               laws;



             c)   The boundaries respect communities of interest;



             d)   The boundaries have substantially equal populations as  
               determined by the most recent federal decennial census;



             e)   The boundaries are geographically compact and  
               contiguous; and,



             f)   The boundaries are drawn without regard to the advantage  
               or disadvantage of incumbents, challengers, or any  
               political party.



          5)Requires communications between any party and the city council  
            regarding the drawing of boundaries of the districts for the  
            city council to be disclosed to the public and maintained by  









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            the city in a publicly available log.  Provides that  
            communications related to the dissemination of procedural  
            information about the drawing of boundaries of the districts  
            for the city council, including but not limited to,  
            communications regarding the time and place of meetings or how  
            to submit public testimony, need not be disclosed or  
            maintained in the log.

          6)Makes corresponding changes.


          EXISTING LAW:  


          1)Permits a general law city that elects its councilmembers  
            through at-large elections to provide for city council members  
            to be elected by districts or from districts.  Provides that  
            such a change shall occur only upon the approval of voters of  
            a measure submitted to them by the city council or placed on  
            the ballot through the initiative process.  Provides that the  
            term "by districts," for the purposes of this provision, means  
            the election of members by voters of the district alone;  
            provides that "from districts" means the election of members  
            who are residents of the districts from which they are  
            elected, but who are elected by voters of the city as a whole.

          2)Prohibits, pursuant to the California Voting Rights Act of  
            2001 (CVRA), an at-large method of election from being imposed  
            or applied in a political subdivision (including a city) 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)Provides that a violation of the CVRA may be established if it  
            is shown that racially polarized voting occurs in elections  









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            for members of the governing body of the political subdivision  
            or in elections incorporating other electoral choices by the  
            voters of the political subdivision.

          4)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.

          5)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.

          6)Requires a general law city that elects councilmembers "by  
            districts" or "from districts" to adjust the boundaries of the  
            council districts following each decennial federal census so  
            that the districts are as nearly equal in population as may  
            be.  Requires the districts to comply with specified  
            provisions of the federal Voting Rights Act.  Permits the city  
            council to give consideration to the following factors when  
            establishing the boundaries of districts:

             a)   Topography;

             b)   Geography;

             c)   Cohesiveness, contiguity, integrity, and compactness of  
               territory; and,

             d)   Communities of interests of the districts.

          7)Requires, in counties where the Secretary of State (SOS) has  
            determined it is appropriate, each precinct board to post at  
            least one copy of the ballot with ballot measures and ballot  
            instructions printed in Spanish.  Provides that the ballot  
            shall also be posted in other languages if a significant and  









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            substantial need is found by the SOS.  Provides that in  
            determining whether it is appropriate to require a county to  
            post a copy of the ballot at a precinct in a language other  
            than English, the SOS shall find a need to post such  
            translated copies of the ballot if the number of residents of  
            voting age in the precinct who are members of a single  
            language minority and who lack sufficient skills in English to  
            vote without assistance equals three percent or more of the  
            voting-age residents in the precinct.
           
           8)Permits a city to provide for its own governance through the  
            adoption of a charter by a majority vote of its electors  
            voting on the question.

          9)Permits a city charter to provide for the conduct of city  
            elections, including the manner in which, the method by which,  
            the times at which, and the terms for which municipal officers  
            are elected or appointed.

          10)Provides that a legally adopted city charter supersedes all  
            laws inconsistent with that charter with respect to municipal  
            affairs.

          FISCAL EFFECT: Unknown. State-mandated local program; contains  
          reimbursement direction.

















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          COMMENTS:  


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

          While the diversity of city councils across the State has  
          increased, evidence suggests that at-large based elections  
          unsuccessfully reflect minority representation in large  
          cities with sizeable minority populations. Currently,  
          minority groups make-up close to 60% of the population in  
          California. District-based elections offer several  
          benefits. Each geographic area is represented which helps  
          ensure an even distribution of city resources. While each  
          voter is represented by all city council members, each  
          voter has one specific council member to petition to for  
          help. 





          This method of disenfranchisement of communities is found  
          throughout the state, including in Antioch, Concord, Daly  
          City, Fontana, Oxnard, Rialto and West Covina.  





          AB 278 will create stronger accountability in city councils  
          for voters of the districts.



          2)General Law Cities Only: The California Constitution gives  
            cities the ability to exercise greater control over municipal  









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            affairs through the adoption of a charter by a majority vote  
            of the city's electors voting on the question.  Cities that  
            have not adopted charters are commonly referred to as "general  
            law" cities, because such cities are subject to the state's  
            general laws, regardless of whether those laws concern a  
            municipal affair.

          The California Constitution grants charter cities the plenary  
            authority, subject only to restrictions contained in specified  
            provisions of the California Constitution, to provide for the  
            manner in which municipal officers are elected or appointed.   
            Because this bill seeks to regulate the manner in which  
            municipal officers are elected, the provisions of this bill  
            likely would not be applicable to charter cities, but instead  
            would apply to general law cities.
            


          3)Cities Affected: According to the 2010 United States Census,  
            there are 66 cities in California with a population of at  
            least 100,000 residents.  Of those 66 cities, 41 are charter  
            cities, and thus likely would not be affected by the  
            provisions of this bill.



            Of the 25 general law cities in California with a population  
            of 100,000 or more, 22 (Antioch, Concord, Corona, Costa Mesa,  
            Daly City, El Monte, Fairfield, Fontana, Fremont, Fullerton,  
            Garden Grove, Murrieta, Norwalk, Ontario, Orange, Oxnard,  
            Rancho Cucamonga, Santa Clarita, Simi Valley, Temecula,  
            Thousand Oaks, and West Covina) elect city council members  
            at-large, and one (Elk Grove) elects city council members  
            at-large from districts.  Those 23 cities would be required to  
            change their method of electing city council members under the  
            provisions of this bill. (The City of Santa Clarita has  
            reached a settlement agreement in a CVRA lawsuit, but that  









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            agreement calls on the city to use an alternative voting  
            method known as cumulative voting in an effort to address the  
            voting rights issues raised in the lawsuit.  Because  
            cumulative voting would be conducted at-large in the city,  
            this bill would require the City of Santa Clarita to move to  
            by-district elections, notwithstanding the tentative  
            settlement.  Additionally, two lawsuits brought under the CVRA  
            challenging Fullerton's at-large method of election for city  
            council members are pending.)  Based on current population  
            growth rates, as estimated by the United States Census Bureau,  
            four additional cities (Clovis, Jurupa Valley, Mission Viejo,  
            and Rialto) likely would be covered by this bill following the  
            2020 census.





            The cities of Escondido and Moreno Valley are the only general  
            law cities in California with a population of at least 100,000  
            that currently elect city council members by districts.





          4)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  









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            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  









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            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 and the Board of Governors of the  
            California Community Colleges have the authority to waive the  
            voter-approval requirement for school districts and community  
            college districts, respectively. There is no procedure in law  
            for cities or special districts to receive a waiver for the  
            voter-approval requirement to move from at-large to  
            district-based elections if those governmental bodies have  
            concerns about liability under the CVRA.  In at least some  









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            cases, however, judges have approved settlements to CVRA  
            lawsuits that allow the governing body to transition from  
            at-large to district-based elections without voter approval.  



            In all, more than 140 local government bodies have  
            transitioned from at-large to district-based elections since  
            the enactment of the CVRA.  While some jurisdictions did so in  
            response to litigation or threats of litigation, other  
            jurisdictions proactively changed election methods because  
            they believed they could be susceptible to a legal challenge  
            under the CVRA, and they wished to avoid the potential expense  
            of litigation.
          5)State Mandates: By requiring certain cities to elect city  
            council members by districts, instead of at-large, this bill  
            would impose a state-mandated local program, for which the  
            state could be required to reimburse those cities for the  
            costs of transitioning from an at-large election system to a  
            district-based election system.  On the other hand, political  
            subdivisions that transition from at-large to district-based  
            elections systems on their own, either as the result of a  
            legal challenge brought under the CVRA, or for other reasons,  
            must bear their own costs of changing election methods.



            The last four state budgets have suspended various state  
            mandates as a mechanism for cost savings. Among the mandates  
            that were suspended were all existing elections-related  
            mandates. All the existing elections-related mandates have  
            been proposed for suspension again by the Governor in his  
            budget for the 2015-16 fiscal year. In light of this fact, and  
            given the fact that the CVRA provides a remedy to compel  
            jurisdictions to move from at-large to district-based  
            elections when at-large elections are impairing the ability of  
            a protected class of voters to influence the outcome of an  









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            election, the Committee may wish to consider whether it is  
            desirable to establish this new mandate when the Legislature  
            has voted to suspend the existing election mandates.


            
          6)Procedural Requirements and Standards for Cities Transitioning  
            To District Elections:  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.  This requirement will continue to apply to  
            any city that transitions from at-large to district-based  
            elections, and that is not required to do so pursuant to this  
            bill.  For example, if a charter city, or a general law city  
            with a population of less than 100,000, chooses to transition  
            from at-large to by-district elections, the hearing  
            requirements of AB 1440 would continue to apply.

          Cities that are required to change from at-large to by-district  
            elections pursuant to this bill, however, would be subject to  
            much more extensive procedural and hearing requirements than  
            under existing law.  In addition to being required to hold at  
            least six public hearings prior to adopting district lines,  
            cities forced to transition to by-district elections under  
            this bill would face restrictions on the locations, dates, and  
            times of public hearings; would be required to develop  
            extensive outreach and educational plans and media strategies,  
            potentially in multiple languages; could be required to  
            provide real-time translations of public hearings, potentially  
            in multiple languages; and would be required to comply with  
            criteria in creating district boundaries that differ from the  
            criteria that generally apply when local government entities  
            draw district lines.  According to the author, these  
            requirements are intended to ensure that the process that  
            cities follow when creating district boundaries is open and  









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            inclusive, and to ensure that cities do not undermine the  
            voting rights of citizens when creating district lines.

          These requirements, however, also will increase the cost to  
            cities that are required to transition from at-large elections  
            under this bill, and in turn, could increase the cost to the  
            state to reimburse those cities if this bill is found to  
            impose a reimbursable state mandate.  Apart from the costs,  
            some of these requirements could impose significant logistical  
            burdens to cities that are required to comply.  For example,  
            this bill requires cities, under certain circumstances, to  
            provide simultaneous translations of public hearings into  
            languages other than English and to conduct voter outreach and  
            education and media strategies in languages other than  
            English. Those requirements could apply if as little as three  
            percent of the voting age population of a single precinct in a  
            city with a population of 100,000 or more are limited-English  
            proficient and are members of a single language minority, even  
            if there are very few members of that language minority in the  
            city as a whole.
          
          7)Operative Date: This bill does not contain an operative date,  
            a deadline by which cities with a population of 100,000 or  
            more must adopt an ordinance transitioning to by-district  
            elections, or a date by which cities must begin conducting  
            elections using the by-district method of election.  The  
            committee and the author may wish to consider an amendment to  
            this bill to establish a reasonable timeline for cities to  
            comply with the provisions of this bill.


          
          8)Arguments in Support:  The sponsor of this bill, the Mexican  
            American Legal Defense and Educational Fund, writes:












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          Minority representation is affected by the electoral  
          structure. California is now a minoritymajority state, but  
          number of minorities alone is no guarantee of political  
          influence. A lack of fair representation still exists in  
          cities with atlarge elections.



          An atlarge method of electing a city council can result in  
          vote dilution for minority residents, impairing their  
          ability to elect candidates of choice or to influence the  
          outcome of City elections. In contrast, district based  
          elections can correct underrepresentation of minority  
          governing board members, decrease campaign costs, enhance  
          direct neighborhood representation, promote councilmember  
          accessibility and responsiveness, and increase voter  
          turnout.

          The provisions of AB 278 that address the process for  
          drawing the lines of the new districts will enhance voter  
          engagement by providing meaningful access through hearings  
          at which community members will have the opportunity to  
          submit testimony regarding their neighborhoods and their  
          communities of interest - testimony that is crucial to the  
          design of districts that are representative of the  
          economic, racial, ethnic, educational, linguistic and  
          social diversity of the jurisdictions. The public will also  
          have the opportunity to review draft maps and submit  
          proposals of their own prior to adoption of the final maps.  
          The hearings will be held at times and in places designed  
          to maximize community input, as is the outreach that  
          precedes the hearings. Finally, language access and  
          transparency are built into the provisions regarding  
          process, and the districting criteria reflect this State's  
          interest in ensuring effective and fair representation on  
          local governing boards. 










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          9)Arguments in Opposition:  In opposition to this bill, the  
            League of California Cities writes:

          This measure is a sweeping and costly unfunded state  
          mandate. Impacted cities would have to hire consultants to  
          draft maps and analyze election patterns-with costs ranging  
          from $50,000 to $100,000 per city to draw various maps.   
          Attorneys with specialized expertise in the federal and  
          state election laws would need to be retained to advise and  
          protect cities from litigation over how district lines are  
          drawn.



          Additionally, this bill is based around an arbitrary  
          population threshold and does not take into account that  
          the affected cities all have unique population and  
          geographic characteristics.  In the event there is an issue  
          of vote dilution, the CVRA provides significant legal  
          leverage to any voter who seeks to challenge an at-large  
          election system of a city, school district, community  
          college district or any other district authorized by the  
          state.  In fact, under the CVRA it is easier for plaintiffs  
          to bring and prevail in lawsuits alleging that their votes  
          are diluted in at-large elections.

          In short, for those who prefer existing at-large election  
          systems to be closely examined for conformance with the  
          CVRA, existing law is robust and working. New mandates are  
          unnecessary.

          10)Technical Amendment:  Committee staff recommends the  
            following technical amendment to address a drafting error in  
            this bill:

            On page 5, line 18, strike out "State" and insert: "States".










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          11)Related Legislation: AB 277 (Roger Hernández), which is also  
            being heard in this committee today, expressly provides that  
            the CVRA applies to charter cities, charter counties, and  
            charter cities and counties.
          
          12)Previous Legislation: This bill is similar to AB 2715 (Roger  
            Hernández) of 2014.  AB 2715 was approved by this committee,  
            but was held on the Assembly Appropriations Committee's  
            suspense file.



          AB 450 (Jones-Sawyer) of 2013 would have required the Los  
            Angeles Community College District to elect governing board  
            members by trustee area, instead of at-large.  AB 450 was  
            approved by this committee on a 4-1 vote, but was held on the  
            Assembly Appropriations Committee's suspense file.

            AB 1979 (Roger Hernández) of 2012 would have required the City  
            of West Covina to elect city council members by districts,  
            instead of at-large.  AB 1979 was pulled by the author prior  
            to being heard in this committee.


            
          13)Double-Referral:  This bill has been double-referred to the  
            Assembly Committee on Local Government.  
          REGISTERED SUPPORT / OPPOSITION:




          Support











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          Mexican American Legal Defense and Educational Fund (sponsor)




          Opposition


          Californians for Electoral Reform (unless amended)


          City Clerks Association of California


          City of Murrieta


          City of Norwalk


          City of Temecula


          Howard Jarvis Taxpayers Association


          League of California Cities


          Southwest California Legislative Council




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











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