Legal Alerts Jan 25, 2021

Redistricting in California

What Public Agencies Must Know Ahead of the U.S. Census Bureau’s Data Release

After each decennial U.S. census, local public agencies with officers elected by or from geographical districts, divisions or wards must “redistrict.” This requires review of the recent Census population data and, if necessary, adjustment of voting area boundaries to keep them as nearly equal in population as possible, allowing for certain variances due to geography, topography, communities of interest, etc., all as required in federal and California law.
While some agencies have elected officers by or from districts for a while, many have only recently transitioned to district-based elections to comply with the California Voting Rights Act, often under threat of litigation. Because an increasing number of local agencies elect officers by voting area compared to 10 years ago, many will be redistricting for the first time in 2021. Even agencies that have redistricted in the past must know that the rules for redistricting have changed with recent legislation, and the process is quite complex.
The U.S. Census is underway. While the Census data would typically be made available to local agencies by March 31, 2021, COVID-19 has delayed the process. The Census Bureau indicated it will require additional time to complete its work. While the data could come sooner, it isn’t scheduled to be available to local agencies until July 31. Once the data becomes available, agencies can start the statutory process of looking at their voting areas to decide whether their electoral maps must be updated.
Fair Maps Act
The recently enacted California Fair Maps Act (Election Code section 21000 et. seq.) prescribes the local agency process for redistricting. Under the Act, cities and counties must conduct certain outreach, maintain websites with publicly available information about draft maps and hold at least four public hearings on the issue. This is very similar to a CVRA transition, so it will look familiar to agencies that have done this recently.
In addition to municipalities, special districts must review their census data and conduct public hearings on redistricting, but the special district process is much simpler. California law allows an agency to adopt a redistricting map either by ordinance or resolution. However, agencies that have adopted their current district maps via ordinance will need to adopt their revised district maps via another ordinance, so timelines need to provide for first and second readings.
Charter city clients are particularly advised to consult with legal counsel given that some parts of the Fair Maps Act will apply to charter cities, and others will not.
In 2020, the Legislature amended the Fair Maps Act to adjust the deadline when the final district map must be adopted. Agencies with elections held between Jan. 1 and July 1, 2022 must complete the redistricting process and adopt the final map no later than 174 days before the election. For agencies with June 7, 2022 elections (consolidated with the Statewide Primary Election), the final deadline is Dec. 15, 2021. Agencies with a Nov. 8, 2022 election (consolidated with the Statewide General Election) must adopt their maps no later than 205 days before the election, or April 17, 2022. The Act permits charter cities to establish different deadlines, however, they may face practical deadlines to finalize maps and submit them to their county in time for a particular election.
Redistricting Process Options
California law provides several ways for a public agency to redistrict:

  • Council/Board Adoption of the Map - The traditional way is for the council/board to retain a demographer, review the census data, take public input, conduct the hearings and then approve a new map (or keep the same map if the population hasn’t changed appreciably).
  • Advisory Redistricting Commission – This is an advisory commission that the council/board may directly appoint to conduct some of the public hearings and solicit input for the council/board. However, the council/board retains the final decision on the map. The Fair Maps Act disqualifies some persons from serving on an advisory commission. 
  • Independent Redistricting Commission – This model hands the entire process over to a commission that makes the final decision on the map. The services of a demographer are also required to support the work of the commission. The council/board may offer input and comment, but it does not make the final decision. This is the most complex process because the agency must recruit, appoint and educate a new body to perform this work. This requires adopting an ordinance or resolution setting out the appointment process. Further, with the exception of charter cities, the Fair Maps Act prohibits the council/board or any elected official (e.g., mayor) from directly selecting the commission members. This approach requires approximately four or five months additional implementation time to empanel the commission.
  • Hybrid Redistricting Commission – Largely the same in complexity as an independent commission except that the commission approves two or more draft maps and, while the council/board gets to make the final choice, that choice is limited to the menu of maps approved by the commission. The Fair Maps Act has extensive rules for how independent and hybrid commissions work, including a large number of disqualifying factors for certain persons serving on a commission. 

At this time, agencies should consider which approach they wish to take toward redistricting and to plan their process and meetings to meet the statutory deadlines.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

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