XAVIER BECERRA Attorney General
LAWRENCE M. DANIELS Deputy Attorney General
AGO 16-603
No. 16-603
California Attorney General Opinion
Office of the Attorney General State of California
July 11, 2017
THE
HONORABLE CHRIS R. HOLDEN, MEMBER OF THE STATE ASSEMBLY, has
requested an opinion on the following question:
Does
the California Voter Participation Rights Act apply to
charter cities, and to local school districts whose elections
are governed by city charters?
CONCLUSION
The
California Voter Participation Rights Act applies to charter
cities, and to local school districts whose elections are
governed by city charters.
ANALYSIS
California
holds statewide elections in June and November of every
even-numbered year.1 Local elections held on the statewide
election dates are referred to as "consolidated,"
"concurrent," or "on-cycle," whereas
those held on other dates are described as
"nonconcurrent" or 2 In 2015, faced with the problem
of substantially lower voter turnout in off-cycle elections,
the Legislature enacted the California Voter Participation
Rights Act ("Act").3
The
Act, which becomes operative on January 1, 2018,4 requires any "political
subdivision" whose elections have a "significant
decrease in voter turnout" to hold its elections on a
statewide election date.5 The Act defines "political
subdivision" as "a geographic area of
representation created for the provision of government
services, including, but not limited to, a city, a school
district, a community college district, or other district
organized pursuant to state law."[6] A
"[significant decrease in voter turnout" occurs
where "the voter turnout for a regularly scheduled
election in a political subdivision is at least 25 percent
less than the average voter turnout within that political
subdivision for the previous four statewide general
elections."7 And "voter turnout" is "the
percentage of voters who are eligible to cast ballots within
a given political subdivision who voted."[8] The question
presented is whether charter cities (and school districts
whose elections are governed by those charters[9]), by virtue of
the California Constitution's "home-rule"
provision, need not comply with the Act, or whether charter
city law must yield to the Act where the two conflict. For
the reasons that follow, we conclude that under such
circumstances the Act controls.
We
begin our analysis with the law on charter city autonomy. The
California Constitution, article XI, section 5 gives charter
cities the power to legislate "in respect to municipal
affairs" over inconsistent state law.[10] These
municipal affairs include the "conduct of city
elections" and "the times at which . . . the
several municipal officers . . . whose compensation is paid
by the city shall be elected . . . ."[11] But a charter
city's "home-rule" authority over municipal
affairs is not absolute; state law may trump charter law on
matters of "statewide concern."[12]
The
California Supreme Court has set forth a four-part test to
determine when a state statute preempts a charter city
law.13 Under this test, a court must determine:
(1) whether the charter city law regulates a municipal
affair; (2) whether there is an actual conflict between the
charter city law and the state statute; (3) whether the state
statute addresses a matter of statewide concern; and (4)
whether the state statute "is reasonably related to
resolution of that concern and narrowly tailored to avoid
unnecessary interference in local
governance."14 "If the court is persuaded that the
subject of the state statute is one of statewide concern and
that the statute is reasonably related to its resolution [and
not unduly broad in its sweep], then the conflicting charter
city measure ceases to be a 'municipal affair' pro
tanto and the Legislature is not prohibited by article XI,
section 5(a), from addressing the statewide dimension by its
own tailored enactments."15
In
Jauregui v. City of Palmdale, the Court of Appeal
utilized this preemption test in a case concerning the
California Voting Rights Act of 2001 (CVRA).[16] The CVRA
sought to remedy minority vote dilution—a different
voting-rights problem than the one that the Act addresses,
i.e., low voter turnout in off-cycle elections. As explained
in Jauregui, the CVRA was "adopted to prevent
an at-large electoral system from diluting minority voting
power and thereby impairing a protected class from
influencing the outcome of an election."[17] At issue in
Jauregui was whether the CVRA applied to charter
cities.18
Using
the California Supreme Court's preemption test from
Vista, the Court of Appeal in Jauregui
first determined that a charter city's selection of
at-large elections over district-based elections was a
"municipal affair" because "article XI,
section 5, subdivision (b) expressly identifies the conduct
of city elections as a municipal affair."[19]Second, the
court found that there was an "actual conflict"
between the CVRA and the city charter provision upon finding
vote dilution of a protected class.20 Third, the court
explained that the CVRA involved a statewide concern as it
implicated the constitutional rights to vote and equal
protection as well as electoral integrity.[21] Finally, the
court reasoned that the CVRA was narrowly drawn and
reasonably related to the resolution of these statewide
concerns since the CVRA only applied to at-large council
elections when there has been vote dilution of a protected
class.22 Based on its analysis, the Court of
Appeal concluded that the "home-rule" provisions of
article XI, section 5 did not prevent the CVRA from being
enforced in charter cities.23 The Court of Appeal's
analysis now informs our own as we apply this same preemption
test to the Act.
First,
we also find the Act regulates a municipal affair—the
decision when to hold a local election. The state
Constitution enumerates the "conduct of city
elections" and "the times at which . . . the
several municipal officers . . . shall be elected" as
two categories of municipal affairs.24 A charter city's
decision to hold a local election on a date other than a
statewide election date involves the conduct of city
elections and may also involve the times at which municipal
officers are elected.
Second,
an actual conflict exists between state and charter city law.
As a threshold matter, we find that the Legislature intended
the Act to apply to charter cities and school districts. The
Act...
