Does the California Voter Participation Rights Act override a charter city's home-rule authority over election timing, and does it apply to school districts whose elections are governed by city charters?

Plain-English summary

Assembly Member Chris Holden asked whether the California Voter Participation Rights Act applies to charter cities and to school districts whose elections are governed by city charters. The Act, passed in 2015 and operative January 1, 2018, requires any "political subdivision" that experiences a "significant decrease in voter turnout" in off-cycle (non-statewide-date) elections to move its elections onto a statewide election date. The trigger threshold: 25% lower voter turnout in a regularly scheduled local election than the average for the previous four statewide general elections.

Charter cities have constitutional autonomy over "municipal affairs" under article XI, section 5 of the California Constitution, and the conduct and timing of city elections are explicitly listed as municipal affairs. So at first glance, an off-cycle charter-city election seems immune from a state mandate. But charter-city autonomy is not absolute. The California Supreme Court has long applied a four-part test from Cal. Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1 and State Bldg. and Const. Trades Council v. City of Vista (2012) 54 Cal.4th 547: (1) is the charter rule a municipal affair, (2) is there an actual conflict with state law, (3) does the state law address a matter of statewide concern, and (4) is the state law reasonably related to that concern and narrowly tailored.

The AG concluded all four tests are satisfied, walking parallel to the Court of Appeal's reasoning in Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781 (which applied the same preemption test to the California Voting Rights Act on minority vote dilution). On statewide concern, the AG identified two: the constitutional right to vote (off-cycle elections suppress turnout substantially, undermining the right of suffrage) and the integrity of the electoral process. On narrow tailoring, the AG noted the Act only triggers when a city's off-cycle turnout is at least 25% lower than its statewide-date turnout, so it does not interfere with charter cities whose off-cycle elections perform well.

The result: charter cities must comply, and school districts whose elections are governed by city charters fall within the same preemption analysis because article IX, section 16 of the California Constitution allows a city charter to regulate school board elections, and the Act's definition of "political subdivision" expressly includes school districts.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

The Act and its trigger. Elec. Code § 14052(a) prohibits a political subdivision from holding an election on a non-statewide date if past off-cycle elections "previously resulted in a significant decrease in voter turnout." Elec. Code § 14051(a) 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." A "significant decrease in voter turnout" under § 14051(b) means the voter turnout for a regularly scheduled election is at least 25% less than the average voter turnout in that political subdivision for the previous four statewide general elections. The Act becomes operative on January 1, 2018 (§ 14057). A political subdivision can avoid the requirement by adopting, before January 1, 2018, a plan to consolidate its elections with a statewide election no later than November 8, 2022 (§ 14052(b)).

California's home-rule provision. Cal. Const. art. XI, § 5(a) gives charter cities the power to legislate "in respect to municipal affairs" over inconsistent state law. § 5(b)(3) and (4) explicitly enumerate "conduct of city elections" and the "times at which . . . the several municipal officers . . . shall be elected" as core municipal affairs. Cal. Const. art. IX, § 16(a) authorizes a city charter to regulate school-board elections within the city.

The four-part preemption test. Cal. Fed. and Vista require courts to ask:

1. Does the charter city law regulate a municipal affair?
2. Is there an actual conflict between the charter law and the state statute?
3. Does the state statute address a matter of statewide concern?
4. Is the state statute reasonably related to that concern and narrowly tailored to avoid unnecessary interference in local governance?

If the answer is yes to all four, the state law prevails. The AG worked through each step.

Step 1: Municipal affair. Yes. Election timing is explicitly listed in art. XI, § 5(b)(3)-(4).

Step 2: Actual conflict. Yes. The Act's definition of "political subdivision" includes "a city," and a charter city is still a city. Jauregui held that the identical CVRA definition reached charter cities. The Legislature is presumed to have used the same language in the Act with that judicial construction in mind. People v. Harrison (1989) 48 Cal.3d 321. The bill's author also told committee hearings that the Act covered charter cities, which strengthens the construction. Walters v. Weed (1988) 45 Cal.3d 1. When the charter city's off-cycle elections meet the statutory threshold of significant decreased turnout, the charter law (allowing off-cycle elections) conflicts with the Act (prohibiting them).

Step 3: Statewide concern. Yes, on two grounds.

• The right to vote. Cal. Const. art. II, §§ 1, 2, 2.5, 3, 7 protect suffrage; Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), calls the right to vote "a fundamental political right, because preservative of all rights." Jauregui recognized that the state's interest in facilitating exercise of the right of suffrage "is one that goes to the legitimacy of the electoral process" and is not merely municipal. Off-cycle elections suppress turnout substantially: legislative materials cited research showing a 21-36% boost in turnout when local elections moved to even-year statewide election dates.
• Electoral integrity. The California Supreme Court has said "the integrity of the electoral process, at both the state and local level, is undoubtedly a statewide concern." Johnson v. Bradley (1992) 4 Cal.4th 389, 409. Significant low turnout undermines integrity by making elections less complete and representative.

Step 4: Narrow tailoring. Yes. The Act only kicks in when a political subdivision's off-cycle turnout is at least 25% below its statewide-date turnout. So it does not affect charter cities whose off-cycle elections perform well. Jauregui found the CVRA narrowly tailored on similar reasoning.

Result. Charter cities, and school districts whose elections are governed by city charters, must comply with the Act when triggered. The article XI, section 5 home-rule provision does not exempt them.

Common questions

Q: My California charter city has elected its mayor in odd-numbered years for decades. Do we have to move to a statewide-date schedule?
A: If your last several off-cycle elections show turnout at least 25% below the average for the previous four statewide general elections, yes. Elec. Code § 14052(a). If the gap is smaller than 25%, the Act does not require you to move.

Q: What is "voter turnout" for purposes of the 25% threshold?
A: § 14051(c) defines voter turnout as "the percentage of voters who are eligible to cast ballots within a given political subdivision who voted."

Q: Can a charter city challenge the Act's application?
A: A city can challenge in court, but the AG's analysis tracks the established four-part Cal. Fed./Vista preemption framework and the Court of Appeal's parallel application of that framework in Jauregui to the California Voting Rights Act. The constitutional argument that home rule defeats state election-timing requirements is unlikely to succeed when the state law is narrowly tailored to address turnout.

Q: What about a city school district whose elections are governed by the city charter?
A: Same analysis. The Act expressly includes school districts in the "political subdivision" definition. Cal. Const. art. IX, § 16(a) lets city charters regulate school board elections, but city-charter authority over school elections gets preempted on the same basis as city-charter authority over municipal elections.

Q: Is there a deadline to adopt a consolidation plan and avoid mandatory enforcement?
A: § 14052(b) lets a political subdivision avoid the off-cycle prohibition by adopting, on or before January 1, 2018, a plan to consolidate its elections with a statewide election no later than November 8, 2022.

Citations and references

Constitutional provisions:

• Cal. Const. art. II, §§ 1, 2, 2.5, 3, 6, 7
• Cal. Const. art. IX, § 16
• Cal. Const. art. XI, § 5

Statutes:

• Elec. Code §§ 14050-14057 (Voter Participation Rights Act)
• Elec. Code §§ 14025-14032 (California Voting Rights Act of 2001)
• Elec. Code §§ 1000-1003, 1200, 1201, 1415, 9255, 9260, 10403
• Gov. Code §§ 34100, 34101, 34457, 34458
• Ed. Code §§ 1040, 1042, 1240, 35160, 35160.1, 35160.2

Cases:

• State Bldg. and Const. Trades Council of Cal., AFL-CIO v. City of Vista (2012) 54 Cal.4th 547
• Cal. Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1
• Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781
• Johnson v. Bradley (1992) 4 Cal.4th 389
• Yick Wo v. Hopkins, 118 U.S. 356 (1886)
• Cawdrey v. City of Redondo Beach (1993) 15 Cal.App.4th 1212
• Mackey v. Thiel (1968) 262 Cal.App.2d 362
• People v. Harrison (1989) 48 Cal.3d 321
• Walters v. Weed (1988) 45 Cal.3d 1
• U.S. v. Village of Port Chester, 704 F.Supp.2d 411 (S.D.N.Y. 2010)
• O'Callaghan v. State, 914 P.2d 1250 (Alaska 1996)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/16-603_0.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General

OPINION of XAVIER BECERRA, Attorney General
LAWRENCE M. DANIELS, Deputy Attorney General

No. 16-603
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. 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 "off-cycle." 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").

The Act, which becomes operative on January 1, 2018, requires any "political subdivision" whose elections have a "significant decrease in voter turnout" to hold its elections on a statewide election date. 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." A "[s]ignificant 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." And "voter turnout" is "the percentage of voters who are eligible to cast ballots within a given political subdivision who voted."

The question presented is whether charter cities (and school districts whose elections are governed by those charters), 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. 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 . . . ." 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."

The California Supreme Court has set forth a four-part test to determine when a state statute preempts a charter city law. 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." "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."

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). 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. 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." 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. 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. Finally, the court reasoned that the CVRA was narrowly drawn and reasonably related to the resolution of these statewide concerns. 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.

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.

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 specifically includes "a city" and "a school district" under the definition of "political subdivision." A charter city is a city. Moreover, a charter city and a school district fall within the definition of "political subdivision" under the Act, as each is "a geographic area of representation created for the provision of government services . . . ." The Court of Appeal in Jauregui applied the CVRA's identical definition of "political subdivision" to charter cities, and we presume that the Legislature enacted the same language in the Act in light of this judicial ruling.

Third, the Act addresses a matter of statewide concern: low voter turnout in off-cycle elections. California's off-cycle elections generally have a substantially lower voter turnout than its on-cycle elections. According to one report — cited in the legislative history about California mayoral and councilmanic elections — "simply moving an election to be synchronized with the even year state elections can result in a 21-36 percent boost in voter turnout for municipal and other local elections." The Act's purpose, according to the bill's author, was to combat the "abysmal" voter turnout in certain off-cycle elections by holding them "concurrently with statewide and federal elections, where voter turnout is often twice as high." Given these historical circumstances, we believe that the state has a more substantial interest in tackling the problem of low voter turnout in off-cycle elections than a charter city has in setting off-cycle dates for its local elections. Here, as in Jauregui, there are grounds for finding a matter of statewide concern — the constitutional right to vote and the integrity of the electoral process.

Finally, we find the Act to be reasonably related to the resolution of the statewide concerns discussed above. As mentioned, election studies support the Legislature's determination that consolidating low-turnout off-cycle elections with statewide elections would increase voter participation in local elections. The Act is also narrowly tailored to avoid unnecessary interference in local governance. It applies only when the locality has a quantifiably (at least a 25%) lower voter turnout in its regularly scheduled elections than in its statewide general elections. So it does not affect charter cities whose off-cycle elections do not manifest this difference in voter turnout.

While a charter city's constitutional sovereignty over its municipal affairs should not be minimized, it must at times yield to statewide concerns. When off-cycle elections result in significantly decreased voter participation, they compromise "the essence of a democratic form of government," raising an important matter of statewide concern. For these reasons, we conclude that the California Voter Participation Rights Act applies to charter cities, and to local school districts whose elections are governed by city charters.