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 ----------------------------------------------------------------- |Author: |Roger Hernández | |-----------+-----------------------------------------------------| |Version: |6/1/15 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Darren Chesin | | | | ----------------------------------------------------------------- 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 AB 278 (Roger Hernández) Page 2 of ? 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; AB 278 (Roger Hernández) Page 3 of ? 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 AB 278 (Roger Hernández) Page 4 of ? 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. AB 278 (Roger Hernández) Page 5 of ? 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. AB 278 (Roger Hernández) Page 6 of ? 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 AB 278 (Roger Hernández) Page 7 of ? 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. AB 278 (Roger Hernández) Page 8 of ? 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 AB 278 (Roger Hernández) Page 9 of ? 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 ------------------------------------------------------------------ |Assembly Floor: |43 - 32 | |--------------------------------------+---------------------------| |Assembly Appropriations Committee: |12 - 0 | |--------------------------------------+---------------------------| |Assembly Local Government Committee: | 5 - 1 | |--------------------------------------+---------------------------| |Assembly Elections and Redistricting | 4 - 1 | |Committee: | | ------------------------------------------------------------------ POSITIONS Sponsor: Mexican American Legal Defense and Educational Fund Support: California Immigrant Policy Center AB 278 (Roger Hernández) Page 10 of ? 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