Election Laws:
Rock the Vote without Rocking the Boat
Election Laws:
Rock the Vote without Rocking the Boat
By: David A. Soldani, Partner
Atkinson, Andelson, Loya, Ruud & Romo
“The ballot is stronger than the bullet.”
― Abraham Lincoln
General District Election
Cal. Elec. Code §1303 (b)
• Notwithstanding any other provision of law, a governing body of a
special district may require, by resolution, that its elections of
governing body members be held on the same day as the
statewide general election. The resolution shall become
operative upon the approval of the board of supervisors pursuant
to Section 10404
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Election Laws:
Rock the Vote without Rocking the Boat
Cal. Elec. Code § 4002
A special district may conduct its
elections by mail in accordance with
specified procedures
Election Dates
• § 1500 Established mailed ballot election dates
– The established mailed ballot election dates are as follows:
(a) The first Tuesday after the first Monday in May of each year.
(b) The first Tuesday after the first Monday in March of each even-numbered
year.
(c) The last Tuesday in August of each year.
Cal. Elec. Code § 9310
Initiative Submission to Electorate
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Election Laws:
Rock the Vote without Rocking the Boat
Cal. Elec. Code § 13113
Ballot Order
Cal. Elec. Code § 1780
Vacancies
Failure to Call an Election
If the governing body of a special
district fails to call an election involving
selection of its own members, the
board of supervisors of the county may
do so. Cal. Elec. Code § 10004
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Election Laws:
Rock the Vote without Rocking the Boat
Validation Actions
California Code of Civil Procedure 860 et seq.
Advantages and Disadvantages
Cal. Elec. Code § 9300-9320
Initiatives
Cal. Elec. Code § 9340
Referendum Process
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Election Laws:
Rock the Vote without Rocking the Boat
Cal. Elec. Code § 11000
Recall Elections
POLLING
Do you need it?
If so, when?
If so, how?
Ballot Measures and Public
Agencies (Special Districts)
Impermissible Activities
• Using public funds to purchase campaign materials
• Bumper stickers, posters, television, radio and billboard
advertisements (Vargas v. City of Salinas, 46 Cal. 4th 1,
at 24, 32, 42 (2009).
• Using public resources to disseminate advocacy material
prepared by others (See Vargas at pp. 24, 25)
• Production and mailing of “promotional campaign brochures.”
(See Vargas at p. 39 n.20)
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Election Laws:
Rock the Vote without Rocking the Boat
Permissible Activities
• Taking a position on a ballot measure in an open and public meeting
where all perspectives can be shared. (Vargas at p. 37.)
• Preparing staff reports and other analyses to assist decision-makers in
determining the impact of the measure and what position to take
(Vargas at pp. 36-37)
• Responding to inquires about ballot measures in ways that provide a fair
presentation of the facts about the measure and the agency’s view of
the merits of a ballot measure. A response must be factual and not
advocate a position, it may inform the public about how the ballot
measure would impact the district. (Vargas at pp. 24-25, 33)
• Accepting invitations to present the district’s views before organizations
interested in the ballot measure’s effects. (Vargas at pp.25, 36)
Style, Tenor and Timing Standard
• Activity that doesn’t fall into the impermissible or permissible activities must be
evaluated by the style, tenor and timing test. (Vargas at pp. 7, 30, 40)
Language should be simple, measured and informative, emphasizing facts and
not inflammatory or argumentative. (Vargas at pp. 34, 40)
• Factors to be considered
• Inflammatory or argumentative language.
• Funded from a special appropriation related to the measure
• Consistent with normal communications patters for the agency
– Ex. Delivering information through regular agency communication
channels (website, newsletter, etc.) in way that emphasizes facts and
doesn’t use inflammatory or argumentative language (See Cal. Code Reg.
§18901.1(e) and Vargas at pp. 34, 40.)
• Consistent with the style of other agency
Reporting Requirement
• Special Districts must report the direct and indirect costs of materials
and activities that expressly advocate or unambiguously urge the
qualification, passage, or defeat of a ballot measure (referred to as
campaign materials or activities). (Cal. Code Reg. §18420.1(a), (c))
• Examples Include: bumper stickers, billboards, door-to-door
canvassing, television and radio advertising, etc.
• Reporting Exceptions
• Communications providing internal analyses of a measure to
a member of the public upon request, reports of an agency’s
position in the minutes of a meeting, agency arguments in a
voter’s pamphlet, presentations by public employees on the
agency’s position requested by organizations, and
communications “clearly and unambiguously” authorized by
law. (Cal Code Regs. § 18420(e))
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Election Laws:
Rock the Vote without Rocking the Boat
Consequences
• The misuse of public resources may lead to personal liability both
criminally and civilly.
• Criminal penalties include a two to four year sate prison term and
permanent disqualification from public office. (Cal. Penal Code §
424)
• Civil penalties include a fine of up to $1,000 for each day the
violation occurs, plus three times the value of the resource used
(Cal. Gov.’t Code § 8314(c)(1))
New Election Laws - California
Senate Bill 29
With the passage of Senate Bill 29, if a vote-by-mail ballot is
postmarked on or before election day and arrives to the county
elections office within three days of the election it will be counted.
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Election Laws:
Rock the Vote without Rocking the Boat
California State Senate Bill 113
With the passage of California State Senate Bill 113, 16-year olds will
be allowed to preregister to vote for once they turn 18, should they
meet all the other voter eligibility requirements.
Assembly Bill 1311
•
•
Previous law prohibited individuals from registering to vote except
by affidavit of registration, if a court finds that a person is not
capable of completing an affidavit of voter registration, as specified,
the law stated that a person would be deemed mentally incompetent
and therefore disqualified from voting.
The new law ensures that federal and state laws related to voter
registration assistance are applied equally to any individual who
seeks to register to vote. Now, the law prohibits a person including
a conservatee from being disqualified from voting on the basis that
they sign the affidavit of voter registration with mark, cross,
signature stamp, or completes the affidavit of registration with
assistance from another person.
The California Voting Rights Act
of 2001
•
Signed into law by Governor Gray Davis on July 9,
2002
• Provides that:
An at-large method of election may not be imposed
or applied in a manner that impairs the ability of a
protected class to elect candidates of its choice or
its ability to influence the outcome of an election, as a
result of the dilution or the abridgment of the rights of
voters who are members of a protected class
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Election Laws:
Rock the Vote without Rocking the Boat
At-Large Elections
Candidates must reside within the District’s
boundaries and are elected by all the voters who
reside in the District’s boundaries. (Education Code
Section 5030(a).)
From-Trustee Area
Elections
Candidates must reside in specific geographic
areas within the District’s boundaries called
“Trustee Areas”, but are elected by all the voters
who reside in the District’s boundaries. (Education
Code Section 5030(c).)
By-Trustee Area
Elections*
Candidates must reside in specific Trustee Areas
within the District’s boundaries and are elected only
by the voters who reside in the same Trustee
Areas. (Education Code Section 5030(b).)
* Only election method immune from liability under the CVRA
Litigation Risk
The California Voting
Rights Act provides that
prevailing parties (other
than the public agency)
are entitled to an award
of their attorneys fees
and costs.
Plaintiffs’ Fees In CVRA Litigation
• Sanchez v. City of Modesto
•
City paid plaintiffs $3 million dollars
(in addition to spending $1.7 million
dollars on its own attorneys)
• Jaurequi v. City of Palmdale
$4.6 Million
• Moreno v. City of Anaheim
$1.1 Million
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Election Laws:
Rock the Vote without Rocking the Boat
SB 1365 Vetoed by Governor
Brown
• SB 1365 is a more recent attempt to amend the
CVRA. This bill would have removed the
exemption of by-district elections from the reach
of the CVRA, thereby opening up for challenge
every method of election, including by-district.
• This means that even public agencies that
recently switched over to a by-district election
method could be challenged under the CVRA
What Should Your District Be
Doing Now?
•
If your District already elects “by-trustee area” then
no action is necessary until the 2020 Census Data
is released.
•
If your District elects “at-large” you need to consider
one of the following:
1. Analyze your District’s potential liability under
the CVRA
Or
2. Transition to a “by-trustee area” election
method
Assessing Liability Under the
CVRA
• What needs to be analyzed?
California Elections code 14026(3)(e) . . . The methodologies for estimating group
voting behavior as approved in applicable federal cases to enforce the federal
Voting Rights Act (42 U.S.C. Sec. 1973 et seq.) to establish racially polarized
voting may be used for purposes of this section to prove that elections are
characterized by racially polarized voting.
14028. (a) A violation of Section 14027 is 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.
14028. (b) The occurrence of racially polarized voting shall be determined from
examining results of elections in which at least one candidate is a member of a
protected class or elections involving ballot measures, or other electoral choices
that affect the rights and privileges of members of a protected class.
14028. (d) Proof of an intent on the part of the voters or elected officials to
discriminate against a protected class is not required.
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Election Laws:
Rock the Vote without Rocking the Boat
Ecological Statistics
•
Gingles v. Thornburg established Ecological
Regression as the standard racial bloc voting
analysis methodology.
• Other methods are also used in some recent cases.
•
•
•
Requires detailed statistical comparison of precinct
by precinct demographics to precinct by precinct
election results.
Multi-candidate elections further complicate the
analysis.
Two-stage Regression, Ecological Inference (EI),
Seemingly Unrelated Regression (SUR),
Logarithmic analysis also used in some cases.
Demographic Data
• Census data
(Decennial and American Community Survey)
• Ethnic-Surname analysis of voter registration
lists.
• Analyze a variety of population basis:
• Total population; voting age population; citizen voting age
population; registration by surname; voter turnout by surname;
• Data from Census Blocks, Block Groups, and Precincts must be
standardized to allow apples-to-apples analysis.
Precinct Data
• Precincts change from election to election
• Precinct consolidations change from election to
election
• Some data is available electronically, some only
on paper
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Election Laws:
Rock the Vote without Rocking the Boat
Elections to Analyze
•
•
•
•
Elections for the jurisdiction involving a “protected
class” candidate
Other elections for the jurisdiction where one
candidate is preferred by “protected class” voters
Overlapping elections (i.e. County Supervisor; Legislature; Congress)
Statewide, potentially including:
•
•
•
•
•
•
1994 Proposition 187 (benefits for illegal immigrants)
1996 Proposition 209 (eliminates affirmative action programs)
1998 Proposition 227 (replaces bilingual education with immersion)
2003 Proposition 54 (restricted government collection of ethnicity data)
2003 Gubernatorial Special Election (Bustamante vs. Schwarzenegger)
2006 Insurance Commissioner (Bustamante vs. Poizner)
Top Ten Things to Consider Prior
to Launching a Ballot Measure Campaign
1 Does your initiative have voter appeal?
2 Is it simple and straight forward?
3 Does it have strategic or tactical value?
Top Ten Things to Consider Prior
to Launching a Ballot Measure Campaign
4 Can you attract the necessary resources?
5 Is it cost effective – will it cost relatively little to qualify?
6 Is the political climate right?
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Election Laws:
Rock the Vote without Rocking the Boat
Top Ten Things to Consider Prior
to Launching a Ballot Measure Campaign
7 Will the ballot language be in your favor?
8 Does it help or hurt candidates?
9 Does it help or hurt other ballot initiatives?
Top Ten Things to Consider Prior
to Launching a Ballot Measure Campaign
10 Are you prepared to win?
Proposition 218 Tax Reform
• Prop. 218 radically changes the way in which
local governments raise revenues by ensuring
taxpayer approval of charges and increases to
existing charges. Voters are also given the
ability to repeal or reduce charges by voter
initiative.
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Election Laws:
Rock the Vote without Rocking the Boat
Special Features of
Proposition 218
•
•
•
•
Voter Approval on Taxes
Limits on Use of “General Taxes”
Stricter Rules on Benefit Assessments
Increased Notification and Protest
Requirements
• Restrictions on Use of Fees
• Government Owned Property No Longer
Exempt
• Initiative Power to Repeal
Are Your District Policies
Consistent With Your Election Method
and Practices?
Method of Election
Tiebreaker Criteria
Filling of Vacancies
Question
Answer
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Election Laws:
Rock the Vote without Rocking the Boat
Thank You
For questions or comments, please contact:
David A. Soldani
(559) 225-6700
dsoldani@aalrr.com
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