What’s Ahead for Voting Rights in California

With the U.S. Supreme Court taking on major issues of voter identification laws and partisan gerrymandering practices, voting rights has become a hot-button topic that will surely garner a significant amount of national attention in years to come.

Below is a round-up of recent voting rights issues in California.

Image courtesy of the Brennan Center for Justice

California voters may soon have the chance to re-enfranchise convicted felons incarcerated in state prison.

In October, California non-profit Initiate Justice launched a campaign to extend voting rights to individuals on parole or in state prison for a felony conviction. The campaign seeks to amend the state constitution, which bars anyone who is “imprisoned or on parole for the conviction of a felony” from voting. The organization is in the process of obtaining the required 585,407 signatures to get the proposed constitutional amendment onto the November 2018 ballot.

As of November 30, 2017, there are currently 183,469 convicted felons incarcerated in California’s thirty-three prisons, according to the California Department of Corrections and Rehabilitation.

Individuals in county jails or enrolled in community supervision programs recently obtained the right to vote. In 2014, Alameda Superior Court Judge Evelio Grillo ruled that Californians who are neither on parole nor incarcerated in state or federal prisons — such as those in new forms of community supervision created by the 2011 California Criminal Justice Realignment Act — have a constitutional right to vote. In September 2016, Governor Jerry Brown signed Assembly Bill 2466, which amended the Elections Code to reflect Judge Grillo’s ruling.

The ACLU has sued the State of California for allegedly invalidating at least 45,000 ballots in the November 2016 election.

The American Civil Liberties Union announced in August that it has sued the state of California for discarding up to 45,000 ballots in the November 2016 election.

The suit, which was filed in San Francisco Superior Court on November 13, 2017, names as plaintiffs the ACLU and Peter La Follette. La Follette is a resident of Sonoma County who alleges that he learned this year that his November 2016 mail-in ballot was discarded.

According to the suit, La Follette contacted his registrar of voters, who informed him that his ballot was invalidated because his signature on his ballot envelope was “significantly different from what we have on file.”

California Elections Code Section 3019(c)(2) requires that elections officials discard mail-in ballots if they determine that the signature on the envelope does not match the one on file at the registrar’s office. Further, the code does not require that the registrar notify voters in the event their ballot is discarded. Accordingly, a voter would not know that his ballot has been invalidated unless he checks the ballot’s status on the Secretary of State’s website.

The suit cites a study conducted at the University of California, Davis and estimates that between 35,000 and 45,000 ballots were rejected in the 2016 election due to perceived signature mismatch.

Over 8.4 million Californians — nearly 60% of the 14.6 million who voted in the 2016 general election — cast a mail-in ballot, according to official election data.

The defendants in the suit are Secretary of State Alex Padilla and Sonoma County Registrar of Voters William F. Rousseau.

Former Poway Mayor Don Higginson challenges the constitutionality of the California Voting Rights Act.

Former Poway Mayor Don Higginson is challenging the constitutionality of the California Voting Rights Act of 2001. Higginson’s federal lawsuit claims that the CVRA violates the Fourteenth Amendment of the U.S. Constitution by denying citizens the right to choose who they want to represent them.

Under the CVRA, local governments must switch from an at-large system to district-based voting if racially-polarized voting exists. Unlike its federal equivalent, the CVRA does not require a showing that a minority is concentrated enough to form a majority within a single-member district. This makes it easier for minority groups to sue the government for allegedly discriminatory voting practices.

Higginson, who lost the 2014 mayoral election after serving twenty-eight years on the Poway City Council, penned a column in San Diego Union-Tribune lamenting attorney Kevin Shenkman’s demand letter to the City, threatening a lawsuit if the City did not switch to district elections under the CVRA.

The Project on Fair Representation, a Virginia-based conservative group, found Higginson’s column and has since provided funding and representation for his suit. The not-for-profit legal defense foundation represented the plaintiffs in Fisher v. University of Texas and Students for Fair Admissions v. Harvard, both cases that challenged affirmative action programs.

A number of civil rights organizations, including the Mexican American Legal Defense and Educational Fund (MALDEF) and Asian-Americans Advancing Justice, have requested to join the opposition to Higginson’s lawsuit.

Although legal experts predict the case may take years to litigate, Higginson has filed for a preliminary injunction that would prevent the state from enforcing the CVRA while the lawsuit works its way through the courts. If granted, the injunction could have a sweeping and immediate impact on local elections throughout California.

Magistrate Judge Jill L. Burkhardt is scheduled to hear oral arguments for the injunction request on January 19, 2018.

Hastings Constitutional Law Quarterly is the oldest law journal in the nation devoted exclusively to constitutional law. The journal will be hosting its symposium, Voting in 2018 and Beyond: Ensuring Access and Accountability of the Ballot in America, on Friday, January 26, 2018, at UC Hastings College of the Law in San Francisco. The symposium is free and open to the public. Register at: https://votingin2018andbeyond.eventbrite.com.

Written by Philip J. Tacason
Senior Operations Editor, Hastings Constitutional Law Quarterly