County Redistricting Legal Issues 2011 Redistricting Committee

1. County Redistricting Legal Issues2011 Redistricting Committee Thomas (Mat) Miller, Senior Deputy Office of the County Counsel February 10, 2011

2. Redistricting – Legal Issues • Equality of Population • The Equal Protection Clause of the 14th Amendment of the U.S. Constitution prohibits the election of local government officials from districts of disparate population. Avery v. Midland County, 390 U.S. 474 (1968) • Districts must be “as nearly equal in population as may be.” Id. • A total population deviation of 10% between largest and smallest legislative district is presumed to be acceptable. Gaffney v. Cummings, 412 U.S. 735 (1973); White v. Regester, 412 U.S. 755 (1973)

3. Redistricting – Legal Issues (cont.) • California Elections Code Section 21500 provides that in establishing the boundaries of supervisorial districts the Board may give consideration to: • Topography. • Geography. • Cohesiveness, contiguity, integrity, and compactness of territory. • Should be contiguous and compact, taking into account the availability of transportation and communication. • Social and economic interests common to the population of an area should be considered. • Compactness does not refer to geometric shapes but to the ability of citizens to relate to each other and their representatives and to the ability of representatives to relate effectively to their constituency. • Community of interests of the districts. • Relationships that are facilitated by shared interests and by membership in a political community.

4. Redistricting – Legal Issues (cont.) • U.S. Supreme Court has held that other considerations may be acceptable. • Protection of incumbency, voting patterns and race may also be considered in redistricting. Hunt v. Cromartie, 121 S. Ct. 1452 (2001). • The goal is the creation of legislative districts that are effective, both for the represented and the representative. DeWitt v. Wilson, 856 F. Supp. 1409 (1994).

5. Redistricting – Legal Issues (cont.) • Supervisorial redistricting must comply with Section 2 of the Voting Rights Act (42 U.S.C.A. 1973). • Prohibits actions by a local government which impair the ability of a racial minority to elect its candidates of choice on an equal basis with other voters. • Minority group must be large, geographically compact and politically cohesive. • The County cannot take intentional action to dilute existing minority voting strength in redrawing supervisorial district lines. Garza v. County of Los Angeles, 918 F. 2d 763 (1990).

6. Redistricting – Legal Issues (cont.) • Voting Rights Act. • Under a totality of the circumstances, the minority group may not have less opportunity than others to participate in the political process and to elect representatives of its choice. Thornburgh v. Gingles, 478 U.S. 30 (1986); Growe v. Emison, 507 U.S. 25 (1993). • Does not require any affirmative steps to be taken by the County during the redistricting process. • Race may also not be the only factor used; cannot ignore traditional redistricting principles. Bush v. Vera, 517 U.S. 952 (1996).

7. The Brown Act 2011 Redistricting Committee

8. Meeting Requirements: Open and Public Meetings The Brown Act generally requires that all meetings of a legislative body of a local agency be “open and public.”

9. Applies to any “legislative body” of a “local agency” “Legislative body” is broadly defined and includes: • The governing board of a local agency, or any local board created by statute. • Any commission, committee, board or other body created by formal action of a legislative body. • 2011 Redistricting Committee

10. What constitutes a “meeting” “Any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location . . .to hear, discuss, deliberate or take action on any item that is within the subject matter jurisdiction of the legislative body.” Section 54952.2 (a).

11. No Serial Meetings • Prohibits a majority of the members of a legislative body from using a series of communications of any kind, directly or through intermediaries,to discuss, deliberate, or take action on any item of business, even if no “collective concurrence” is ever reached. Section 54952.2(b)(1). • Valladolid v. County of San Diego BOS • No intent is required.

12. Regular, Special, and Emergency Meetings • Regular meetings: Each legislative body shall provide the time and place for holding regular meetings. • Special Meetings: May be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body • By posting a notice and also delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing. Section 54956. • Emergency meetings: May hold an emergency meeting without complying with the 24-hour “Special Meeting” notice and posting requirements. Section 54956.5.

13. What is Not a “Meeting” Under the Brown Act The following events are not considered meetings, subject to the requirements of the Brown Act: • Individual contacts or conversations between a member of a legislative body and any other person; • Attendance of a majority of the members of a legislative body at a conference open to the public or purely social or ceremonial event (may not discuss official business).

14. Meeting Requirements: Open and Public Meetings • At regular and special meetings, members of the public have a right to address the legislative body on any item appearing on the agenda. • The agenda shall provide an opportunity for members of the public to address the legislative body on any item. • Legislative body may adopt reasonable regulations limiting the total amount of time for particular issues or particular speakers. Section 54954.3(b). • No “sign in” requirement allowed. • Legislative body may not prohibit public criticism. Section 54954.3, sub. (c) • Meetings may be recorded by the public. Section 54953.5. • Any materials provided to the body are public records, unless otherwise exempt. Section 54957.5.

15. Agenda Requirements • Agenda must be posted at least 72 hours before the meeting. • Must contain brief description of each item to be discussed. • Except as otherwise provided by law, no action or discussion shall be undertaken on any item not appearing on the posted agenda. Section 54954.2. • When an item not appearing on the agenda be discussed or acted upon • Members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights. • On their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities.

16. Enforcement & Penalties • Criminal Penalties – A misdemeanor if there is intent to deprive the public of information which the member knows or has reason to know the public is entitled to receive. Section 54959. • Civil Injunction • Attorneys Fees and Court Costs • Court May Invalidate Action Taken In Violation of Brown Act

17. The Public Records Act 2011 Redistricting Committee

18. The California Public Records Act In 10 Seconds… Any person may inspect or receive a copy of a public record unless it is exempt. (Gov. Code, § 6253)

19. What Agencies Are Subject To The Public Records Act? All state and local agencies. Boards, commissions or agencies created by a covered agency, including advisory boards. Non-profit entities that are legislative bodies of a local agency. The Redistricting Committee is subject to the Public Records Act!

20. What is a public record? “Public records” include any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (§ 6252(e).)

21. What is a public record? A writing means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. (§ 6252(g).)

22. Public Records Act Checklist The Request – Can be oral or written. The Review – Identify responsive records and determine if they are exempt. The Response – Notify the requester within 10 days if we will comply with the request or assert an exemption. The Production – Requester can inspect records for free or obtain copies for the direct cost of duplication.

23. Questions? Office of County Counsel (714) 834-3300