BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          ELECTIONS AND CONSTITUTIONAL AMENDMENTS
                              Senator Ben Allen, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 278         Hearing Date:    7/7/15    
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          |Author:    |Roger Hernández                                      |
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          |Version:   |6/1/15                                               |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Darren Chesin                                        |
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                    Subject:  District-based municipal elections

           DIGEST
           
          This bill requires general law cities with a population of  
          100,000 or more, as specified, to elect members of the city  
          council by district. 

           ANALYSIS
            Existing law  :

          1)Permits a general law city that elects its councilmembers  
            through at-large elections to change the method by which  
            councilmembers are elected so that its city council members  
            are 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  







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            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  
            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. 

           This bill  :

          1)Requires the legislative body of a general law 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. 

          2)Requires a city council that is establishing districts  
            pursuant to this bill to satisfy the following criteria in  
            preparing the boundaries of the 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; 








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             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. 

          3)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  
            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. 

           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  








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          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. 








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          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 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.

           COMMENTS
           
           1)According to the author  :  AB 278 will empower all communities  
            to elect their own voice, their own advocate, their own  
            council member.  They can hold him or her accountable and in  
            turn decisions made by the council will more likely represent  
            the needs of all its residents.  It is important to note the  
            fact that at-large elections have been the subject of  
            litigation across our state that challenges that election  
            process as a violation of the both the state and federal  
            Voting Rights Act.  Voters in numerous cities, including  
            Anaheim, Compton, Palmdale, and Watsonville have gone to court  
            to discard the at-large system.  It is important for local  
            governments to embrace district-based elections in order to  
            bring justice to their residents now, not when mandated by the  
            courts.









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          In June of 2013, the U.S. Supreme Court declared certain  
            elements of the federal Voting Rights Act (VRA)  
            unconstitutional.  This has increased use of the California  
            Voting Rights Act (CVRA) of 2001. 

          The CVRA prohibits at-large elections to be 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. 

          Public officials may be elected by all of the voters of the  
            jurisdiction (at-large) or from districts formed within  
            political subdivision (district-based). 

          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)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 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  








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            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 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. 

           3)How Extensive is the Problem in these Cities  ?  An online  
            survey of the 23 cities affected by this bill indicated that  
            only four -- Concord, Costa Mesa, Fullerton, and Santa Clarita  
            - had city councils that did not include any ethnic minority  
            members.  In fact, over half of the affected cities have  
            multiple council members who are ethnic minorities.  As noted  
            above, Fullerton and Santa Clarita are already the subject of  
            CVRA lawsuits.  While the author asserts that this bill is  
            also intended to ensure even geographic representation on the  
            affected city councils, neither Committee staff nor the  
            author's office was able to determine the extent of that  
            problem for the affected cities.

           4)Is the CVRA a Better Approach  ?  This bill would force all the  
            23 aforementioned cities to replace their at-large city  
            council elections with district-based elections whether or not  
            they have a lack of ethnic or geographic representation.   
            Conversely, lawsuits filed under the CVRA target jurisdictions  
            where the plaintiffs perceive tangible problems to exist.   








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            While CVRA lawsuits can be expensive to pursue -- and  
            plaintiffs may have limited financial resources -- they  
            arguably provide a more surgical approach to addressing this  
            issue than the one provided for in this bill.
           
            5)State Mandate  .  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. 

          According to the Assembly Appropriations Committee, each city  
            would incur significant costs for city staff, as well as a  
            consulting contract to map the districts. Assuming average  
            costs in the range of $100,000 per city, total one-time costs  
            would be $2.2 million, which would be reimbursable  
            state-mandated General Fund costs.  At least some cities will  
            also likely incur litigation costs, which cumulatively could  
            be significant, to the extent the proposed district boundaries  
            result in legal challenges. 

          The last five 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.  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 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)Double Referral  .  This bill is double-referred to the Senate  
            Governance and Finance Committee.
                                           
                              RELATED/PRIOR LEGISLATION
           
          SB 493 (Cannella), which is pending in the Assembly, authorizes  








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          the legislative body of a city to adopt an ordinance that  
          requires members of the legislative body to be elected by  
          district or by district with an elective mayor without being  
          required to submit the ordinance to the voters for approval.

          AB 277 (Roger Hernández), which is pending on the Senate floor  
          at the time this analysis was written, expressly provides that  
          the CVRA applies to charter cities, charter counties, and  
          charter cities and counties. 

          This bill is similar to AB 2715 (Roger Hernández of 2014).  AB  
          2715 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 also  
          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 the Assembly Elections and Redistricting  
          Committee.

           PRIOR ACTION
           
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          |Assembly Floor:                       |43 - 32                    |
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          |Assembly Appropriations Committee:    |12 - 0                     |
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          |Assembly Local Government Committee:  |  5 - 1                    |
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          |Assembly Elections and Redistricting  |  4 - 1                    |
          |Committee:                            |                           |
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          POSITIONS
           
          Sponsor: Mexican American Legal Defense and Educational Fund

           Support: California Immigrant Policy Center
                    








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           Oppose:  California Common Cause
                    Californians for Electoral Reform 
                    City of Camarillo
                    City of Fremont
                    City of Murrieta
                    City of Norwalk
                    City of Rancho Cucamonga
                    City of Santa Clarita
                    City of Temecula
                    City of Thousand Oaks
                    City of Torrance
                    City of West Covina
                    Howard Jarvis Taxpayers Association
                    League of California Cities