News & Publications
Redistricting & Voting Rights Update: Your Resource for Redistricting News as the 2020 Census Approaches
Census Redistricting Data Delayed to September 30: On February 12, the Census Bureau announced that it does not expect to release the “PL94-171” data—the population and ethnic data needed for redistricting—until September 30 of this year. That is six months later than the deadline prescribed by the U.S. Code, and two months later than the July release date the Bureau had announced last month.
Absent changes to the current timelines prescribed by state law, the Census delay will lead to an extremely compressed local redistricting timeline, and may be impossible to complete on time in some circumstances. Once the Bureau releases the data, counties and cities must then wait for the California Statewide Database to “adjust” the Census data to reassign incarcerated felons to their last known residences—a process the Statewide Database director has predicted could take as much as 30 days, meaning the necessary data may not be available until October 31.
New Local Redistricting Legislation Introduced: On February 16, State Senator Josh Newman introduced legislation, Senate Bill 443, that would substantially impact the redistricting rules that apply to local jurisdictions, including counties, cities (including charter cities), school districts, community college districts, county boards of education, and special districts.
The bill does not address the timing issues created by the delay in the release of Census redistricting data.
In broad strokes, SB 443 would tighten and narrow the criteria that cities and counties would have to follow in redistricting, and eliminate the discretion of city councils and boards of supervisors by making those criteria “exclusive”; extend those more stringent, exclusive criteria to school districts, community college districts, county boards of education, and special districts; and eliminate the statutory provision that was recently enacted in A.B. 1276 allowing charter cities to adopt their own redistricting criteria in their charter.
A local jurisdiction could neither enact nor “maintain” districts that comply with the new requirements, meaning that even if the statute were to take effect on January 1, 2022, it may require reconsideration of maps adopted in 2021.
Supreme Court Grants Review in Santa Monica Case: On October 21, 2020, the California Supreme Court granted plaintiffs’ petition for review in Pico Neighborhood Association v. City of Santa Monica, limited to the following discrete issue: “What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?” On its own motion the Court also depublished the Court of Appeal decision, making it uncitable both for its interpretation of the California Voting Rights Act and for its discussion of the standards for proving that a jurisdiction engaged in intentional discrimination in adopting an at-large electoral system.
Governor Newsom Signs Additional Changes to Local Redistricting Rules: On September 18, 2020, Governor Newsom signed AB 1276 and SB 970, which further alter the rules for municipal and county redistricting in California. AB 1276 alters the hearing and outreach requirements that apply to the local redistricting process and further adjust the deadline for a city or county to complete the redistricting process. SB 970, by moving the 2022 primary election from March to June, gives jurisdictions with elections that are consolidated with the primary–including all counties–additional time to complete the redistricting process.
Santa Monica Plaintiffs Seek Supreme Court Review: On August 18, 2020, the plaintiffs in Pico Neighborhood Association v. City of Santa Monica filed a petition for review, asking that the California Supreme Court overrule the decision of the Court of Appeal concluding that the plaintiffs had not proven their case for CVRA liability against the City of Santa Monica. The City has until September 8 to file a response, if it so chooses, after which the plaintiffs have 10 days to reply. The Court has until October 19 to decide whether to take up the case, though it can extend that time for an additional 30 days.
Court of Appeal Rejects CVRA Liability for Santa Monica; Interprets Act to Require Proof of Dilution, in Addition to Racially-Polarized Voting: On July 9, 2020, the 2nd District Court of Appeal issued a landmark ruling on the California Voting Rights Act (“CVRA”) in Pico Neighborhood Association v. City of Santa Monica. Reversing the Superior Court and ruling in favor of the City of Santa Monica, the Court of Appeal held that Pico Neighborhood Association could not prevail on its CVRA claim, because it “offered no valid proof of dilution,” that is, that the City’s at-large method of electing its City Council impaired Latinos’ ability to elect candidates of their choice or to influence the outcome of an election. The appellate court also ruled that the City of Santa Monica’s at-large elections do not violate the U.S. Constitution’s Equal Protection Clause because the evidence did not support that the City adopted or maintained the at-large system for the purpose of discriminating against minorities.
The Court of Appeal’s analysis of the CVRA claim contains two important clarifications of the Act. First, applying standard principles of statutory construction, the Court held dilution is a separate element that must be proved to prevail in a CVRA challenge. A party challenging a jurisdiction’s at-large elections must prove the method impaired a minority group’s “ability to elect candidates of their choice or to influence the outcome of an election as a result of the dilution or the abridgement of [minority] voting rights.” This means that a plaintiff must do more than prove racially polarized voting in a political subdivision that uses an at-large method of electing members to the governing body of the political subdivision.
Second, it is the plaintiff’s burden to “postulate a reasonable alternative voting practice to serve as the undiluted benchmark” against which to measure an allegedly dilutive at-large method of electing representatives. Here, Pico Neighborhood Association’s proposed district system would have resulted in one district with 30 percent Latino voting power, as compared to the 14 percent city-wide voting power Latinos hold in at-large elections. The Court of Appeal ruled that plaintiffs had not proved dilution “because the result with one voting system is the same as the result with the other: no representation.” With respect to dilution of the ability to influence the outcome of an election, the Court rejected the trial court’s standard, which would allow “any unrealized increase in a group’s percentage [to] satisfy the dilution element.” Thus, dilution requires more than a showing of a “marginal percentage increase in a proposed district, but evidence the change is likely to make a difference in what counts in a democracy: electoral results.” In Santa Monica, it was not the at-large electoral system that prevented Latino voters from electing candidates of choice or influencing the outcome of elections, it was their low numbers in the electorate.
Further, the appellate court rejected the Superior Court’s passing reference to “cumulative voting, limited voting and ranked choice voting” as systems that would “enhance” Latino voting power as perfunctory. As the trial court did not define these terms or attempt to analyze “how each might satisfy the dilution element,” the alternatives could not support the trial court’s judgment.
Plaintiffs now have the option to seek review of the Court of Appeal’s decision by the California Supreme Court. We will keep you apprised of any further developments in this case.
CVRA Petition for Certiorari Scheduled for May 21 Supreme Court Conference: Former Poway Mayor Don Higginson’s petition for certiorari, seeking to have the U.S. Supreme Court weigh in on the constitutionality of the California Voting Rights Act, is scheduled for initial consideration by the Court at its conference on May 21, 2020. It takes the votes of four justices to grant a petition.
Census Bureau Proposes to Delay Release of Data Until Summer 2021: On April 13, 2020, the U.S. Department of Commerce and Census Bureau announced changes to 2020 Census operations in light of the COVID-19 pandemic that could have a significant effect on the 2020-2021 redistricting round in California.
Among the changes announced was a request to Congress to extend deadlines for the Census Bureau to deliver apportionment data to the President and the states (the deadlines are set in federal law at 13 U.S.C. § 141(b) and 2 U.S.C. §§ 2a(a)-(b)). If Congress grants the request, the Census Bureau would need to deliver the counts to the President by April 30, 2021, and the states would receive the data no later than July 31, 2021 (instead of December 31, 2020 and April 1, 2021, as planned). For comparison, California received Census data during the last redistricting round on March 8, 2011.
Extending these deadlines could have a substantial impact on redistricting efforts at the state and local level. For instance, the California Constitution requires the Citizens Redistricting Commission to approve maps for congressional, legislative, and Board of Equalization districts by August 15, 2021, following an “open and transparent process enabling full consideration of and comment,” or else the Secretary of State must ask the California Supreme Court to appoint special masters to do so. Art. XXI, §§ 2(b)(1), (g), (j). While the Commission may begin to hold hearings to gather input before it receives apportionment data (as it did during the 2010-2011 redistricting round), a delay in the Census data would likely make it more challenging for the Commission to meet the deadline. Likewise, boards of supervisors and city councils must adopt updated maps no later than 151 days before the county’s next regular election occurring after March 1, 2022. Election Code §§ 21501, 21507.1, 21602, 21607.1, 21622, 21627.1.
Depending on whether Congress acts on the Census Bureau’s requested legislative fix, cities and counties may need to consider front-loading their hearing schedules to ensure they have sufficient time to meet their statutory deadlines. And, policymakers may be asked to adjust deadlines in state law. At the same time, cities and counties may be under less pressure to begin redistricting activities early if California moves its 2022 primary election date back to June. In mid-March, lawmakers in Sacramento took initial steps to move non-presidential year primaries back to June, in part to provide local government, primarily counties, with enough time to complete their required redistricting work.
Former Poway Mayor Asks U.S. Supreme Court to Address Constitutionality of the California Voting Rights Act: On April 6, 2020, Don Higginson, the former long-time mayor of Poway, filed a petition for certiorari in the United States Supreme Court, asking that Court to hear his case challenging the constitutionality of the California Voting Rights Act. Higginson claims that the CVRA violates equal protection by making race the “predominant” consideration in whether to have districts or at-large voting; that it must therefore survive strict scrutiny; and that it cannot do so. A federal district court in San Diego rejected the challenge in early 2019, and a three-judge panel of the United States District Court for the Ninth Circuit affirmed that ruling, in an unpublished opinion last December.
City of Martinez Defeats Challenge to Districts: On February 28, 2020, the Superior Court in the County of Contra Costa rejected a suit challenging the council district plan that the City adopted in 2018, as part of its transition from at-large voting to district-based voting in response to a threat of litigation under the California Voting Rights Act.
The map was adopted in February 2018; the plaintiffs waited until four days prior to the November 2018 election to file suit, alleging that the Council improperly balanced the policy considerations that have traditionally governed redistricting in California, including treatment of communities of interest, consideration of avoiding head-to-head contests between incumbents, compactness, and others. The Council had adopted a plan that sought to give each district shared responsibility for the City’s waterfront, downtown, and other shared municipal resources.
Marguerite Leoni & Chris Skinnell Give Webinars on CVRA and Redistricting: In late-October and early-November, Nielsen Merksamer’s leading voting rights practitioners, Marguerite Leoni and Chris Skinnell, participated in two webinars hosted by the Rose Institute of State and Local Government.
- The first, on October 24, 2019, at 10-11 a.m., covered differences between the federal and California Voting Rights Acts, the impact of the CVRA on California cities, school districts, and special districts, and on-going litigation concerning its application and validity, including different settlement scenarios.
- The second, on November 7, 2019, at 10-11 a.m., explained the redistricting process at the local level, applicable law, and best practices for local agencies, including the newly-enacted legislative overhaul in A.B. 849.
More information, including recordings of the webinars, is available on the Rose Institute website, here.
Governor Newsom Signs Major Overhaul of Local Redistricting Rules. Governor Gavin Newsom signed sweeping new legislation that comprehensively overhauls the rules for redistricting after the 2020 Census for California cities, charter cities, and counties. The new law, AB 849, significantly changes the criteria, timing, and procedures for redistricting. These changes are mandatory for affected cities and counties. Specifically, AB 849:
- Revises and standardizes redistricting criteria, procedures, and requirements that cities and counties must follow when they adopt or adjust the boundaries of their electoral districts.
- Cities and counties with districts are required to establish district boundaries, to the extent practical, based on the following criteria in the following order of priority:
- Population equality of the residents of the county or city as determined by the census.
- Compliance with United States Constitution, the California Constitution, and the federal Voting Rights Act of 1965.
- Districts shall be geographically contiguous.
- Geographic integrity of any local neighborhood or local community of interest shall be respected in a manner that minimizes its division. Importantly, “communities of interest” do not include the relationships with political parties, incumbents, or political candidates.
- Districts of counties shall respect the geographic integrity of a city or census designated place.
- District boundaries should be easily identifiable and understandable by residents. Natural and artificial barriers, streets, or boundaries of cities or counties shall bound districts.
- To the extent practicable, and where it does not conflict with the preceding criteria in this subdivision, supervisorial or council districts shall be drawn to encourage geographical compactness in a manner that nearby areas of population are not bypassed in favor of more distant populations.
- District boundaries may not be adopted for the purpose of favoring or discriminating against a political party.
- The board or council must hold at least four public hearings where the public may provide input regarding the composition of the districts.
- Establishes specific timelines for the adoption of a plan following each census.
- Limits the circumstances in which district lines can be altered between censuses.
Establishes requirements for public outreach, including to minority communities, and specific means by which information about the process is to be disseminated, including the requirement that each local government maintain a website dedicated to redistricting. (10/8/19)
Multiple Marin County School Districts Move to Trustee Zones: The Marin Independent Journal reports that Trustees for both the San Rafael Board of Education and the Novato Unified School District will soon be chosen by voters living in zones within each school district—a change from the at-large election of Trustees. An attorney threatened the San Rafael Board of Education with litigation under the CVRA unless they moved to Trustee zones. The Novato Unified School District chose to make the change without any such provocation. (9/3/2019)
City of Davis Declares Intention to Move to Districts: On August 13, 2019, the Davis City Council received a staff report and approved a resolution to begin the process of creating districts to elect the City’s Council. Under the resolution’s timeline, the Council will adopt a final ordinance establishing districts on November 5, 2019. A demand letter from Rexroad Law prompted the Council’s action, but the motivations of Rexroad Law and its clients have been the subject of a great deal of speculation and discussion.
Some California Jurisdictions Transition to Districts Without a CVRA Demand Letter: The City of Selma, for example, passed a resolution on July 15, 2019 to move the City’s Council to by-district elections. According to the resolution, the City opted to transition “due to the uncertainty of litigation to defend against a CVRA lawsuit [and] the potentially extraordinary cost of such a lawsuit, even if the City were to prevail.” The Sentinel describes the at-times contentious meeting where the decision was made.
According to Roseville Today, the City of Roseville also intends to transition to district elections without receiving a CVRA demand letter. The report by the City Manager on the issue includes a timeline whereby the transition will be complete by December 4, 2019. (9/3/2019)
Other California Jurisdictions Have Demand Letters Under Consideration: The City of Santa Cruz, for example, announced no action after meeting to discuss a demand letter sent to the City alleging a violation of the California Voting Rights Act based on the City’s at-large election of its Council. Read more here. California law provides for a 45-day “safe harbor” from litigation for jurisdictions to evaluate a CVRA demand. Action may be forthcoming. (8/31/2019)
Chris Skinnell Talks Partisan Gerrymandering: On August 9, 2019, Chris Skinnell participated in panel at the American Bar Association’s Annual meeting to discuss the Supreme Court’s recent decisions on partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek. The program, which is co-sponsored by the Young Lawyers Division and the Standing Committee on Election Law, addressed the ramifications for the future of drawing election maps.
New Redistricting Rules Proposed (8/2/2019): Just like 10 years ago, California cities and counties must consider redistricting after release of the 2020 Census results, but the rules may be very different than in the last round of redistricting.
AB 849 (Bonta) Click here for the text of the bill
Status: Passed Assembly (55-20); Amended by Senate Appropriations
Next Step: Senate Floor scheduled for September 3, 2019
Summary of Some Key Provisions:
This bill applies to all cities, general law and charter alike, and to counties.
The bill changes how populations are determined for redistricting purposes, including counting incarcerated persons whose last known place of residence is within a jurisdiction (compare the long-standing opinion of the California Attorney General here). Once the law is settled, we will provide more information on the topic.
The bill establishes mandatory criteria to be considered in redrawing district boundaries. The criteria, in priority order are:
- Geographic contiguity
- Minimizing the division of communities of interest, which is defined as “a population that shares common social or economic interests that should be included within a single  district for purposes of its effective and fair representation”
- Geographic integrity of a political subdivisions and census designated places (counties only)
- Ease of district boundary identifiability and understandability by residents
- Geographic compactness
- Not favoring or discriminating against a particular political party
- For charter cities, there is a provision about assigning district numbers.
The bill changes the timing for redistricting: no earlier than August 1, 2021 and no later than 151 days before the jurisdiction’s regular election occurring after March 1, 2022. If the jurisdiction fails to meet that deadline, the power to redistrict falls to the superior court.
The bill increases the number of public hearings required for redistricting legislation, specifies the timing of public hearings, and mandates public outreach, among other procedural changes.
AB 1724 (Salas) Click here for the text of the bill
Next Step: Assembly Elections and Redistricting hearing cancelled at the Author’s request
This bill would require every general law city and county to establish an independent redistricting commission to adjust boundary lines for districts for the legislative body following each decennial census, with certain requirements for commission membership and selection.
SB 139 (Allen) Click here for the text of the bill
Status: Passed Senate (29-7); Amended by Assembly Appropriations
Next Step: Assembly Floor scheduled for September 3, 2019
This bill would require a county with more than 400,000 residents to establish either a 9- or 12-member independent redistricting commission to adjust boundary lines for districts for the Board of Supervisors following each decennial census.
The bill specifies qualifications for commission members and specifies that the political party affiliation of the commission’s members shall be proportional to the county’s party registration, with qualifications.
The bill also specifies additional aspects of the commission application and selection process.