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

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County Redistricting County Redistricting Legal IssuesLegal Issues

2011 Redistricting Committee2011 Redistricting Committee

Thomas (Mat) Miller, Senior DeputyThomas (Mat) Miller, Senior Deputy

Office of the County CounselOffice of the County Counsel

February 10, 2011February 10, 2011

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Redistricting – Legal IssuesRedistricting – Legal Issues

Equality of PopulationEquality of Population The Equal Protection Clause of the 14The Equal Protection Clause of the 14thth

Amendment of the U.S. Constitution prohibits the Amendment of the U.S. Constitution prohibits the election of local government officials from election of local government officials from districts of disparate population. districts of disparate population. Avery v. Midland Avery v. Midland CountyCounty, 390 U.S. 474 (1968), 390 U.S. 474 (1968)

Districts must be “as nearly equal in population Districts must be “as nearly equal in population as may be.” as may be.” Id.Id.

A total population deviation of 10% between A total population deviation of 10% between largest and smallest legislative district is largest and smallest legislative district is presumed to be acceptable. presumed to be acceptable. Gaffney v. Gaffney v. Cummings,Cummings, 412 U.S. 735 (1973); 412 U.S. 735 (1973); White v. White v. RegesterRegester, 412 U.S. 755 (1973) , 412 U.S. 755 (1973)

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Redistricting – Legal Issues (cont.)Redistricting – Legal Issues (cont.)

California Elections Code Section 21500 provides that California Elections Code Section 21500 provides that in establishing the boundaries of supervisorial districts in establishing the boundaries of supervisorial districts the Board may give consideration to:the Board may give consideration to: Topography.Topography. Geography.Geography. Cohesiveness, contiguity, integrity, and compactness of Cohesiveness, contiguity, integrity, and compactness of

territory. territory. Should be contiguous and compact, taking into account the Should be contiguous and compact, taking into account the

availability of transportation and communication. availability of transportation and communication. Social and economic interests common to the population of an Social and economic interests common to the population of an

area should be considered.area should be considered. Compactness does not refer to geometric shapes but to the Compactness does not refer to geometric shapes but to the

ability of citizens to relate to each other and their representatives ability of citizens to relate to each other and their representatives and to the ability of representatives to relate effectively to their and to the ability of representatives to relate effectively to their constituency. constituency.

Community of interests of the districts.Community of interests of the districts. Relationships that are facilitated by shared interests and by Relationships that are facilitated by shared interests and by

membership in a political community.membership in a political community.

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U.S. Supreme Court has held that other U.S. Supreme Court has held that other considerations may be acceptable. considerations may be acceptable. Protection of incumbency, voting patterns Protection of incumbency, voting patterns

and race may also be considered in and race may also be considered in redistricting. redistricting. Hunt v. CromartieHunt v. Cromartie, 121 S. Ct. , 121 S. Ct. 1452 (2001). 1452 (2001).

The goal is the creation of legislative The goal is the creation of legislative districts that are effective, both for the districts that are effective, both for the represented and the representative. represented and the representative. DeWitt v. WilsonDeWitt v. Wilson, 856 F. Supp. 1409 , 856 F. Supp. 1409 (1994).(1994).

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Supervisorial redistricting must comply with Supervisorial redistricting must comply with Section 2 of the Voting Rights Act (42 Section 2 of the Voting Rights Act (42 U.S.C.A. 1973). U.S.C.A. 1973). Prohibits actions by a local government which Prohibits actions by a local government which

impair the ability of a racial minority to elect its impair the ability of a racial minority to elect its candidates of choice on an equal basis with other candidates of choice on an equal basis with other voters. voters.

Minority group must be large, geographically Minority group must be large, geographically compact and politically cohesive.compact and politically cohesive.

The County cannot take intentional action to The County cannot take intentional action to dilute existing minority voting strength in dilute existing minority voting strength in redrawing supervisorial district lines. redrawing supervisorial district lines. Garza v. Garza v. County of Los Angeles,County of Los Angeles, 918 F. 2d 763 (1990). 918 F. 2d 763 (1990).

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Voting Rights Act.Voting Rights Act. Under a totality of the circumstances, the Under a totality of the circumstances, the

minority group may not have less opportunity minority group may not have less opportunity than others to participate in the political process than others to participate in the political process and to elect representatives of its choice. and to elect representatives of its choice. Thornburgh v. Gingles,Thornburgh v. Gingles, 478 U.S. 30 (1986); 478 U.S. 30 (1986); Growe v. Emison,Growe v. Emison, 507 U.S. 25 (1993). 507 U.S. 25 (1993).

Does not require any affirmative steps to be Does not require any affirmative steps to be taken by the County during the redistricting taken by the County during the redistricting process. process.

Race may also not be the Race may also not be the onlyonly factor used; factor used; cannot ignore traditional redistricting principles. cannot ignore traditional redistricting principles. Bush v. Vera,Bush v. Vera, 517 U.S. 952 (1996). 517 U.S. 952 (1996).

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The Brown ActThe Brown Act


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Meeting Requirements: Open and Meeting Requirements: Open and Public MeetingsPublic Meetings

The Brown Act The Brown Act generally requires generally requires that all meetings that all meetings of a legislative of a legislative body of a local body of a local agency be “open agency be “open and public.”and public.”

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Applies to any “legislative body” of Applies to any “legislative body” of a “local agency” a “local agency”

““Legislative body” is Legislative body” is broadly defined and broadly defined and includes:includes:

The governing board of a The governing board of a local agency, or any local local agency, or any local board created by statute.board created by statute.

Any commission, committee, Any commission, committee, board or other body created board or other body created by formal action of a by formal action of a legislative body.legislative body. 2011 Redistricting Committee2011 Redistricting Committee

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What constitutes a “meeting”What constitutes a “meeting”

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

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No Serial MeetingsNo Serial Meetings Prohibits a majority of the members Prohibits a majority of the members

of a legislative body from using a of a legislative body from using a series of communications of any kind, series of communications of any kind, directly directly or through intermediaries,or through intermediaries, to to discuss, deliberate, or take action on discuss, deliberate, or take action on any item of businessany item of business, even if no , even if no “collective concurrence” is ever “collective concurrence” is ever reached. Section 54952.2(b)(1).reached. Section 54952.2(b)(1). Valladolid v. County of San Diego BOSValladolid v. County of San Diego BOS

No intent is required.No intent is required.

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Regular, Special, and Emergency Regular, Special, and Emergency MeetingsMeetings

Regular meetings:Regular meetings: Each legislative body shall Each legislative body shall provide the provide the timetime and and placeplace for holding regular for holding regular meetings.meetings.

Special Meetings: Special Meetings: May be called at any time by May be called at any time by the presiding officer of the legislative body of a the presiding officer of the legislative body of a local agency, or by a majority of the members of local agency, or by a majority of the members of the legislative bodythe legislative body By posting a notice and also delivering written notice to each By posting a notice and also delivering written notice to each

member of the legislative body and to each local newspaper of member of the legislative body and to each local newspaper of general circulation and radio or television station requesting general circulation and radio or television station requesting notice in writing. Section 54956.notice in writing. Section 54956.

Emergency meetings: Emergency meetings: May hold an emergency May hold an emergency meeting without complying with the 24-hour meeting without complying with the 24-hour “Special Meeting” notice and posting requirements. “Special Meeting” notice and posting requirements. Section 54956.5.Section 54956.5.

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What is What is NotNot a “Meeting” Under the a “Meeting” Under the Brown ActBrown Act

The following events are The following events are notnot considered considered meetings, subject to the meetings, subject to the requirements of the Brown Act:requirements of the Brown Act:

• Individual contacts or conversations Individual contacts or conversations between a member of a legislative body between a member of a legislative body and any other person;and any other person;

• Attendance of a majority of the members Attendance of a majority of the members of a legislative body at a conference open of a legislative body at a conference open to the public or purely social or ceremonial to the public or purely social or ceremonial event (may not discuss official business).event (may not discuss official business).

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Meeting Requirements: Open and Meeting Requirements: Open and Public MeetingsPublic Meetings

• At regular and special meetings, members of the public At regular and special meetings, members of the public have a have a right to address the legislative body on any itemright to address the legislative body on any item appearing on the agenda.appearing on the agenda.

• The agenda shall provide an opportunity for members of The agenda shall provide an opportunity for members of the public to address the legislative body the public to address the legislative body on any itemon any item..• Legislative body may adopt reasonable regulations limiting Legislative body may adopt reasonable regulations limiting

the total amount of time for particular issues or particular the total amount of time for particular issues or particular speakers. Section 54954.3(b).speakers. Section 54954.3(b).

• No “sign in” requirement allowed.No “sign in” requirement allowed.• Legislative body may not prohibit public criticism. Legislative body may not prohibit public criticism.

Section 54954.3, sub. (c)Section 54954.3, sub. (c)• Meetings may be recorded by the public. Section Meetings may be recorded by the public. Section

54953.5.54953.5.• Any materials provided to the body are public records, Any materials provided to the body are public records,

unless otherwise exempt. Section 54957.5.unless otherwise exempt. Section 54957.5.

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Agenda RequirementsAgenda Requirements Agenda must be posted aAgenda must be posted at least 72 hours before t least 72 hours before

the meetingthe meeting.. Must contain brief description of each item to be Must contain brief description of each item to be

discussed.discussed. Except as otherwise provided by law, Except as otherwise provided by law, no action or no action or

discussion shall be undertakendiscussion shall be undertaken on any item not on any item not appearing on the posted agenda. Section 54954.2.appearing on the posted agenda. Section 54954.2.

When an item When an item notnot appearing on the agenda be appearing on the agenda be discussed or acted upondiscussed or acted upon• Members of a legislative body or its staff may briefly Members of a legislative body or its staff may briefly

respond to statements made or questions posed by respond to statements made or questions posed by persons exercising their public testimony rights.persons exercising their public testimony rights.

• On their own initiative or in response to questions posed On their own initiative or in response to questions posed by the public, a member of a legislative body or its staff by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief may ask a question for clarification, make a brief announcement, or make a brief report on his or her own announcement, or make a brief report on his or her own activities.activities.

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Enforcement & PenaltiesEnforcement & Penalties

Criminal PenaltiesCriminal Penalties – A misdemeanor – A misdemeanor if there is if there is intent intent to deprive the public of to deprive the public of information which the member information which the member knows knows or has reason to know or has reason to know the public is the public is entitled to receive. Section 54959.entitled to receive. Section 54959.

Civil InjunctionCivil Injunction Attorneys Fees and Court CostsAttorneys Fees and Court Costs Court May Invalidate Action Taken Court May Invalidate Action Taken

In Violation of Brown ActIn Violation of Brown Act

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The Public Records ActThe Public Records Act


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The California Public Records Act The California Public Records Act In 10 Seconds… In 10 Seconds…

Any person may inspect or Any person may inspect or receive a copy of a public record receive a copy of a public record unless it is exempt. (Gov. Code, unless it is exempt. (Gov. Code, § 6253) § 6253)

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What Agencies Are Subject To The What Agencies Are Subject To The Public Records Act?Public Records Act?

All state and local agencies.All state and local agencies. Boards, commissions or agencies Boards, commissions or agencies

created by a covered agency, created by a covered agency, including advisory boards.including advisory boards.

Non-profit entities that are Non-profit entities that are legislative bodies of a local agency. legislative bodies of a local agency.

The Redistricting Committee is subject to the Public Records Act!

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What is a public record?What is a public record?

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

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What is a public record?What is a public record?

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

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Public Records Act ChecklistPublic Records Act Checklist The Request – Can be oral or written.The Request – Can be oral or written. The Review – Identify responsive The Review – Identify responsive

records and determine if they are records and determine if they are exempt.exempt.

The Response – Notify the requester The Response – Notify the requester within 10 days if we will comply with within 10 days if we will comply with the request or assert an exemption.the request or assert an exemption.

The Production – Requester can The Production – Requester can inspect records for free or obtain inspect records for free or obtain copies for the direct cost of copies for the direct cost of duplication. duplication.

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Questions? Questions?

Office of County CounselOffice of County Counsel

(714) 834-3300(714) 834-3300

Documents

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