The opinion
Filed 3/23/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SENIOR AND DISABIILITY
ACTION et al.,
Plaintiffs and Appellants, A159540
v. (City and County of San
SHIRLEY WEBER, as Secretary of Francisco
State, etc., Super. Ct. No. CPF-18-516265)
Defendant and Respondent.
Senior and Disability Action, Alice Chiu, and the American Civil
Liberties Union of Northern California (ACLU) (collectively Appellants)
sought a writ of mandate to compel the Secretary of State of California (the
Secretary) to designate certain state offices as voter registration agencies
under the federal National Voter Registration Act (NVRA). The trial court
determined the Secretary had no mandatory duty to designate two of the
offices for which Appellants sought designation, “Local Educational Agency
(LEA) Special Education Offices” and Area Agencies on Aging, as voter
registration agencies. We affirm.
BACKGROUND
A. The NVRA
In 1993, Congress enacted the NVRA to “increase the number of
eligible citizens who register to vote in elections for Federal Office.”
(52 U.S.C. § 20501(b)(1).) The statute requires states to provide three
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different systems for registering voters in federal elections: (1) a system
connected to applying for a driver’s license; (2) a system by mail; and (3) a
system “by application in person” at various state offices. (52 USC
§ 20503(a)(1)-(3); Young v. Fordice (1997) 520 U.S. 273, 275.) This appeal
concerns the third system—voter registration services at state offices.
The NVRA requires each state to “designate agencies for the
registration of voters in elections for Federal office.” (52 U.S.C.
§ 20506(a)(1).) There are two types of agencies a state is required to
designate: (1) “all offices in the State that provide public assistance”
(52 U.S.C. § 20506(a)(2)(A) (Section 20506(a)(2)(A)) and (2) “all offices in the
State that provide State-funded programs primarily engaged in providing
services to persons with disabilities.” (52 U.S.C. § 20506(a)(2)(B)
(Section 20506(a)(2)(B)).)
In addition, the NVRA directs each state to “designate other offices
within the State as voter registration agencies.” (52 U.S.C. § 20506(a)(3)(A).)
Such designated agencies “may include— ¶ (i) State or local government
offices such as public libraries, public schools, offices of city and county clerks
(including marriage license bureaus), fishing and hunting license bureaus,
government revenue offices, unemployment compensation offices, and offices
not described in [Section 20506(a)(2)(B)] that provide services to persons with
disabilities; and ¶ (ii) Federal and nongovernmental offices, with the
agreement of such offices.” (52 U.S.C. § 20506(a)(3)(B)
(Section 20506(a)(3)(B).)
Each designated voter registration agency must offer certain voter
registration services, including distribution of voter registration application
forms, assistance to applicants in completing these forms, unless such
assistance is refused, and acceptance of completed voter registration
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application forms for transmittal to the proper election officials. (52 U.S.C.
§ 20506(a)(4)(A).) If a mandatory voter registration agency under Section
20506(a)(2)(B) provides services to a person with a disability at that person’s
home, voter registration services shall also be extended at the person’s home.
(52 U.S.C. § 20506(a)(4)(B).) Further, any designated voter registration
agency in California must assign an employee to be responsible for the
agency’s compliance, ensure that employees involved in voter registration
services are trained once a year on voter registration laws, and coordinate
with county election officials on registration-related matters. (Elec. Code,
§ 2406.)
California’s Secretary of State is tasked with coordinating the state’s
responsibilities under the NVRA. (52 U.S.C. § 20509; Elec. Code, § 2402,
subd. (a).) Consequently, the Secretary is responsible for ensuring that all
offices that qualify as mandatory voter registration agencies are so
designated and for designating any other state offices as discretionary voter
registration agencies.
B. This Dispute
In 2015, ACLU, later joined by Disability Rights California (DRC)
(representing Senior and Disability Action and Alice Chiu), initiated
discussions with the Secretary regarding the designation of voter registration
agencies in the state. Additional state offices were designated voter
registration agencies following those efforts.
In June 2018, ACLU and DRC renewed their request to the Secretary
to make all mandatory voter registration agency designations required under
the NVRA. They identified 10 programs subject to mandatory designation
and also requested mandatory designations extend to private entities under
contract with a designated agency. In response, the Secretary committed to
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designating three additional offices as voter registration agencies: programs
for students with disabilities in state community colleges, certain county
welfare departments, and the Office of Services to the Blind in the
Department of Social Services. The Secretary did not agree to the remaining
requests.
In July 2018, Appellants filed a petition for writ of mandate and
complaint for declaratory and injunctive relief seeking to compel the
Secretary to make additional mandatory designations. The petition alleged
three entities—state offices that administer General Assistance or General
Relief programs, California Student Aid Commission Financial Aid
Programs, and California Department of Education Nutrition Programs—
must be designated under the mandatory designation provision for offices
providing “public assistance” in Section 20506(a)(2). The petition also alleged
two offices—LEA special education offices and “Area Agencies on Aging and
other offices under contract to provide services or benefits on behalf of the
California Department of Aging”—must be designated under the mandatory
designation provision for offices providing services to persons with disabilities
under Section 20506(a)(3)(B). Lastly, the petition sought the designation of
all private entities under contract to provide services or assistance on behalf
of existing voter registration agencies.
In December 2018, Appellants moved for a peremptory writ of mandate
pursuant to two causes of action they asserted under Code of Civil Procedure
section 1085. They requested the court direct the Secretary to make the six
mandatory voter registration agency designations set forth in their petition.
Following a hearing, the trial court issued an order granting in part
and denying in part the motion. The court found the Secretary had a
mandatory duty to designate as voter registration agencies state offices that
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administer General Assistance or General Relief programs and California
Student Aid Commission Financial Aid Programs, as well as all private
entities under contract to provide services on behalf of a voter registration
agency. For these entities, the court issued a peremptory writ of mandate
directing the Secretary’s designation. As to the offices that administer the
California Department of Education Nutrition Programs, LEA special
education offices, and Area Agencies on Aging, the court found no mandatory
duty existed and denied the motion.
Weeks later, the Secretary confirmed he had made the designations
ordered by the court. The court entered judgment in October 2019, and this
appeal followed.
DISCUSSION
A. Principles Governing Writs of Mandate and Standard of Review
Code of Civil Procedure section 1085, subdivision (a), provides: “A writ
of mandate may be issued by any court to any inferior tribunal, corporation,
board, or person, to compel the performance of an act which the law specially
enjoins, as a duty resulting from an office, trust, or station.” (Code Civ. Proc.,
§ 1085, subd. (a).) “ ‘Generally, a writ of ordinary mandate will lie when (1)
there is no plain, speedy and adequate alternative remedy, (2) the public
official has a legal and usually ministerial duty to perform and (3) the
petitioner has a clear and beneficial right to performance.’ [Citation.] ‘A
ministerial duty is one that is required to be performed in a prescribed
manner under the mandate of legal authority without the exercise of
discretion or judgment.’ [Citation.] [¶] ‘ “Thus, [w]here a statute or
ordinance clearly defines the specific duties or course of conduct that a
governing body must take, that course of conduct becomes mandatory and
eliminates any element of discretion.’ ” ’ [Citation.] ‘Mandamus has long
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been recognized as the appropriate means by which to challenge a
government official’s refusal to implement a duly enacted legislative
measure.’ ” (Cape Concord Homeowners Assn. v. City of Escondido (2017)
7 Cal.App.5th 180, 189–190 (Cape Concord).)
“ ‘When reviewing a trial court’s judgment on a petition for ordinary
mandate, we apply the substantial evidence test to the trial court’s findings
of fact and exercise our independent judgment on legal issues, such as the
interpretation of statutory . . . requirements.’ ” (Cape Concord, supra,
7 Cal.App.5th at pp. 189–190.)
B. Mandatory and Discretionary Designations under the NVRA
The parties do not dispute that Section 20506(a)(2)(B) imposes upon
the Secretary a mandatory duty to designate as voter registration agencies
“all offices in the State that provide State-funded programs primarily
engaged in providing services to persons with disabilities.” (52 U.S.C.
§ 20506(a)(2)(B).) These offices are often referred to as “mandatory” voter
registration agencies. (See, e.g., Disabled in Action of Metro. New York v.
Hammons (2nd Cir. 2000) 202 F.3d 110, 114 (Hammons); United States v.
New York (N.D.N.Y. 2010) 700 F.Supp.2d 186, 201–02 (New York).)
Both parties also recognize that Section 20506(a)(3)(B) of the NVRA
gives the Secretary a choice to designate other offices in the state as voter
registration agencies. This provision, which provides that agencies “may
include” state or local government offices such as public libraries and public
schools and “federal and nongovernmental offices, with the agreement of such
offices” (52 U.S.C. § 20506(a)(3)(B)(i)-(ii), emphasis added), leaves the choice
of which offices will be designated to the state. (See People v. Chubbuck
(2019) 43 Cal.App.5th 1, 7 [“[i]n its plain meaning, the term ‘may’ references
permissive conduct, or conduct which is optionally exercised”].) The NVRA
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merely “encourage[s]” “all nongovernmental entities” to cooperate with the
states in agency designations but does not compel it. (52 U.S.C. § 20506(b).)
These offices are often referred to as “discretionary” voter registration
agencies. (See, e.g., Hammons, supra, 202 F.3d at p. 114; New York, supra,
700 F.Supp.2d at p. 201.)
The parties disagree, however, on how these sections apply to two
particular state entities: LEA special education offices and Area Agencies on
Aging. Whether the NRVA imposes a ministerial duty on the Secretary to
designate these offices, for which mandamus will lie, or confers discretion
with the Secretary to choose whether to designate them, depends on the
nature of each office. As we explain, Appellants have not demonstrated they
are entitled to mandamus for either.
1. LEA Special Education Offices
Appellants argue the trial court incorrectly concluded that the
Secretary had no obligation to designate LEA special education offices as
mandatory voter registration agencies. We disagree.
As an initial matter, there is nothing in the record that substantiates
Appellants’ view of what constitutes an LEA special education office.
Appellants contend “LEA Special Education Offices provide special education
services to students receiving public elementary and secondary education,” so
therefore they are offices in the state that provide state-funded programs
primarily engaged in providing services to persons with disabilities. No
statute or regulation cited by Appellants, however, recognizes an office or
entity by such a name, nor is there any information in the record identifying
such an office or its functions. The record does not explain whether a LEA
special education office exists at public school sites, at school district offices,
or some combination of the two. If they do exist at public school sites, the
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record does not identify which ones, and whether they are elementary or
secondary schools. Nor does the record explain where or how such offices
provide services to disabled students. Absent critical information in the
record about what these entities are and where and how they operate, we
cannot conclude LEA special education offices are the types of state offices
that fall under the NVRA’s mandatory designation.
Even if we construe Appellants’ designation request to be for “local
educational agencies” or “LEAs,” which are defined under the law, we are
still not persuaded the Secretary had a ministerial duty to designate them.
Education Code section 56026.3, which both parties cite, states “ ‘[l]ocal
educational agency’ means a school district, a county office of education, a
nonprofit charter school participating as a member of a special education
local plan area, or a special education local plan area.” (Educ. Code,
§ 56026.3.) By definition, LEAs include certain nonprofit charter schools,
which are a type of public school. (See Today’s Fresh Start, Inc. v. Los
Angeles County Office of Education (2013) 57 Cal.4th 197, 205 [describing
charter schools as “public schools funded with public money but run by
private individuals or entities rather than traditional public school districts”];
California Charter Schools Assn. v. Los Angeles Unified School Dist. (2015)
60 Cal.4th 1221, 1228 [observing “[c]harter schools are public schools ‘ “free
from most state laws pertaining uniquely to school districts” ’ ”].) Appellants
do not dispute these characterizations. Since the NVRA makes designation
of public schools as voter registration agencies discretionary (52 U.S.C.
§ 20506(a)(3)(B); Hammons, supra, 202 F.3d at p. 120, fn. 10 [noting
“Congress, by explicitly including public schools in the discretionary category,
appears to have exempted them from mandatory designation”]), we cannot
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conclude the Secretary had an obligation to categorically designate LEAs as
mandatory voter registration agencies.
Appellants contend that equating all LEAs with public schools directly
contradicts the term’s very definition. Even recognizing that a LEA can be a
“school district” or “county office of education” (see Educ. Code, § 56023.3)
does not compel the designation Appellants seek. For a mandatory
designation, a school district or county office of education must be an “office[]
in the State that provide[s] State-funded programs primarily engaged in
providing services to persons with disabilities.” (52 U.S.C. § 20506(a)(2)(B).)
We see nothing in the record demonstrating Appellants made such a showing
with respect to any school district, or county office of education. We also
recognize that “local educational agency” is defined to include a “special
education local plan area,” but as with LEA special education offices, there is
nothing in the record that explains what these are that would allow us to
determine if such plan areas qualify under the mandatory designation. As a
result, we cannot conclude the Secretary had a mandatory duty to designate
LEAs as voter registration agencies.
Appellants argue that “to the extent that there is any overlap between
the mandatory offices defined in [Section 20506(a)(2)(B)] and the examples of
discretionary offices later called out in [Section 20506(a)(3)(B)], States are
nonetheless required to designate those offices as Voter Registration
Agencies. Otherwise, Congress’s clear mandate requiring that all offices
that constitute . . . disability Voter Registration Agencies . . . be so
designated, would be rendered meaningless.”
Even if we assume Appellants demonstrated LEAs provided programs
primarily engaged in serving disabled persons, we reject the argument. Well-
established rules of statutory construction direct us to “look to [a] statute’s
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entire substance in order to determine its scope and purposes,” and not to
consider statutory language in isolation. (Los Angeles County Metropolitan
Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th
1100, 1107.) “We must harmonize the statute’s various parts by considering
it in the context of the statutory framework as a whole.” (Ibid.) Another
canon “generally preclude[s] judicial construction that renders part of the
statute ‘meaningless or inoperative.’ ” (Hassan v. Mercy American River
Hospital (2003) 31 Cal.4th 709, 715–716 (Hassan).) With these tenets in
mind, we cannot agree that an office expressly categorized as a discretionary
voter registration agency must nonetheless be designated a voter registration
agency if it meets the criteria of Section 20506(a)(2)(B). Such a conclusion
disregards the express discretionary designations established in Section
20506(a)(3)(B) and would render them meaningless. The statutory language,
read as whole, evinces no such legislative intent.
2. Area Agencies on Aging
Appellants also argue the trial court incorrectly concluded the
Secretary had no obligation to designate the state’s Area Agencies on Aging
(AAAs) as mandatory voter registration agencies. Again, we disagree.
The federal Older Americans Act of 1965 provides funding to states to
support state programs that assist the elderly. (42 U.S.C. §§ 3001 et seq.,
3021; see Ombudsman Services of Northern California v. Superior Court
(2007) 154 Cal.App.4th 1233, 1242, disapproved on other grounds as stated in
Williams v. Superior Court (2017) 3 Cal.5th 532, 557, fn. 8.) To access such
funding, the Older Americans Act requires a state’s department of aging to
divide the state into planning and service areas, develop a formula for
distribution of federal funds to them, and prepare and submit a state plan to
the federal agency administering the program. (42 U.S.C. § 3025(a)(1)(A),(E),
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(a)(2)(C).) For each planning and service area, the state’s department of
aging must designate an AAA. (Id. § 3025(a)(2)(A).) An AAA can be an office
or agency of a local government, a combination of local government agencies,
or a “nonprofit private agency.” (Id. § 3025(c); Welf. & Inst. Code, § 9006
[AAA “means a private nonprofit or public agency designated by the
[Department of Aging] that works for the interests of older Californians
within a planning and service area”].) Each AAA is responsible for
developing an area plan describing the programs the AAA proposes to
support with the funding and for “carry[ing]out, directly or through
contractual or other arrangements, a program in accordance with the plan.”
(42 U.S.C. §§ 3025(c), 3026.)
The Older Americans Act authorizes distribution of funds to the state’s
department on aging for several categories of services, which include home
delivered meal services. (45 C.F.R. § 1321.63(a).) The state’s department on
aging awards these funds to AAAs. (Id. § 1321.63(b).) In turn, AAAs “shall
award these funds by grant or contract to community services provider
agencies and organizations” unless a waiver is granted. (Ibid.)
In light of the statutory and regulatory scheme governing AAAs and
the record before us, we also cannot conclude the Secretary had a ministerial
duty to categorically designate the state’s AAAs as voter registration
agencies. Pursuant to the Older Americans Act, California is divided into 33
planning and service areas, each managed by an AAA. Both the federal
statute and relevant state statute make clear these AAAs need not be public
offices. (42 U.S.C. § 3025(c); Welf. & Inst. Code, § 9006.) According to the
Department of Aging’s current Plan on Aging included in the record, not all
are: 19 AAAs in the state are county government agencies, seven operate
pursuant to “joint powers agreements,” five are private non-profit
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organizations, one is a city government agency, and one is a university
foundation. Under the NVRA, nongovernmental offices are considered
discretionary voter registration agencies, and only effective with the
agreement of such offices. (52 U.S.C. § 20506(a)(3)(B)(ii); Hammons, supra,
202 F.3d at p. 120 [“[i]f the NVRA merely ‘encourages’ nongovernmental
cooperation with agency-based registration, it cannot be said that such offices
must be designated as mandatory [voter registration agencies]”].) Since at
least five AAAs are nonprofits and thus nongovernmental entities, we cannot
conclude the Secretary had an obligation to categorically designate the state’s
AAAs mandatory voter registration agencies.
Even for the remaining AAAs—which include county and city public
offices, entities operated under a “joint powers agreement,” and a university
foundation—we cannot conclude Appellants were entitled to mandamus
relief. Appellants sought to compel the Secretary’s designation of these AAAs
based on their roles in the state’s Elderly Nutrition Program, which seeks to
provide the nutrition services described in the Older Americans Act and “to
assist older individuals in California to live independently, by promoting
better health through improved nutrition, and reduced isolation through
programs coordinated with nutrition-related supportive services.” (Cal. Code
Regs., tit. 22, § 7632.1.)
The regulatory framework for the state’s Elderly Nutrition Program
places responsibility for the program’s administration with the Department
of Aging. (Cal. Code Regs., tit. 22, § 7632.5.) It directs AAAs to “ensure the
provision of nutrition services . . . through a provider as defined in subsection
7630(m).” (Id. § 7634.1.) “Provider” is defined as “an entity providing
nutrition services. The provider may either be an AAA providing nutrition
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services directly with Department [of Aging] approval . . . or an entity under
contract with an AAA to provide nutrition services.” (Id. § 7630(m).)
The regulatory section entitled “Selection of an Elderly Nutrition
Program Provider” states the “AAA shall award a nutrition services contract
to providers to furnish congregate and/or home-delivered meals through a
competitive bid process.” (Cal. Code Regs., tit. 22, § 7634.5(a).) This section
contemplates that such contracts may be awarded to for profit providers,
provided the AAA receives approval from the Department of Aging before
doing so. (Id. § 7634.5(b).) It also recognizes that the AAA may “provid[e]
direct nutrition services” as long as it meets certain requirements. (Id. at
§ 7634.5(c).)
Appellants contend that because AAAs provide the home delivered
meals nutrition program, they are offices that provide State-funded programs
which provide services to persons with disabilities within the meaning of
Section 20506(a)(2)(B).) The regulatory framework for the Early Nutrition
Program, however, makes clear that this may not always be the case. Under
this framework, services under the Elderly Nutrition Program may be
provided directly by the AAA when the Department of Aging approves. More
commonly, however, the regulations contemplate these services will be
furnished by an outside provider under contract with the AAA. The outside
provider may be a nonprofit entity or a for profit provider.
Appellants cite nothing in the record that indicates any of the state’s
AAAs provide direct services under the Elderly Nutrition Program. Indeed,
they cite no part of the record containing information as to how any of the
AAAs deliver their nutrition services to elderly Californians. There is no
information indicating that any AAA is a direct service provider of nutrition
services, or whether such services are provided by an entity under contract
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with the AAA. For those that may be providers pursuant to contract, there is
no information on whether the entity is a nongovernmental organization or
for-profit entity, neither of which would be subject to mandatory
designations. (See 52 U.S.C. § 20506(a)(3)(B)(ii); Hammons, supra, 202 F.3d
at p. 120.) Without such information, we cannot categorically conclude any of
the remaining AAAs were subject to the NVRA’s mandatory designation.
Even so, Appellants contend that AAAs nonetheless provide the
services within the meaning of Section 20506(a)(3)(B) that compel their
mandatory designation as voter registration agencies. According to
Appellants, the AAAs “determine what programs they will offer to
constituents of an area plan, including home-delivered meals” and they
“receive and distribute” funds to these programs. In their view, these acts
are sufficient to satisfy the requirements of Section 20506(a)(2)(B) and
mandate designation. We disagree.
Appellants cite no authority for the proposition that determining what
programs will be offered constitutes “provid[ing] State-funded programs”
primarily engaged in providing services to persons with disabilities. Nor do
they cite any authority for the proposition that mere administrative or
financial support can constitute “programs primarily engaged in providing
services to persons with disabilities.”
Further, such views are inconsistent with the legislative intent behind
the agency designation provisions of the NVRA. As noted, the statute’s
purpose was to establish procedures to increase the number of eligible
citizens who register to vote. (52 U.S.C. § 20501(b).) The court in National
Coalition for Students with Disabilities Education and Legal Defense Fund v.
Allen (4th Cir. 1998) 152 F.3d 283, explained, “The centerpiece of the Act is
the motor voter section, providing for the simultaneous application for a
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driver’s license and voter registration. [Citation.] But Congress recognized
that many citizens do not drive. To accommodate the non-drivers among us
and to provide greater opportunity for registration in general, Congress
requires states to designate a number of offices . . . as voter registration
agencies.” (Id. at p. 292.) According to the House Report, “the office
designation section . . . [was] designed to ‘supplement the motor-voter
provisions . . . by reaching out to those citizens who are likely not to benefit
from the State motor-voter application provisions.’ ” (Ibid.) By requiring
states to designate offices serving the disabled as voter registration agencies,
Congress was “ ‘assured that almost all of our citizens will come into contact
with an office at which they may apply to register to vote with the same
convenience as will be available to most other people under the motor voter
program.’ ” (Ibid., emphasis added.) Neither an AAA’s determination of
what programs will be offered, nor its funding of such programs, involve the
type of direct contact between a state office and a constituent contemplated
by the legislature to merit a designation. Such distant connections to the
actual provision of services to disabled persons cannot be the basis for
mandatory designation.
Appellants further argue that the NVRA “clearly requires ‘all offices’—
whether public or private—that provide state-funded programs serving
people with disabilities to be designated as Voter Registration Agencies.”
Such a construction, however, would disregard the express discretionary
designations established for “nongovernmental offices” in Section
20506(a)(3)(B) and render them meaningless. (Hassan, supra, 31 Cal.4th at
pp. 715–716.)
Lastly, Appellants assert that the use of private contractors by AAAs
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nonetheless subjects them to mandatory designation because state law
defines a voter registration agency to include “[a] private entity under
contract with a designated voter registration agency to provide services or
assistance on behalf of the designated voter registration agency.” (See Elec.
Code, § 2401, subd. (b)(2).) We disagree. This provision applies when the
office with which the private entity has contracted is already a designated
voter registration agency. No showing has made that any of the AAAs have
been so designated.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on
appeal.
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_________________________
Wiseman, J.*
WE CONCUR:
_________________________
Petrou, Acting P.J.
_________________________
Jackson, J.
Senior and Disability Action et al. v. Weber, A159540
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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Trial Court:
Superior Court of the City and County of San Francisco
Trial Judge:
Hon. Ethan P. Schulman
Counsel for Plaintiffs and Appellants:
Shilpi Agarwal, Anne Decker, Amy Gilbert, American Civil Liberties
Union Foundation of Northern California
Frederick P. Nisen, Paul R. Spencer, Ben Conway, Navneet K. Grewal,
Disability Rights California
Counsel for Defendant and Respondent:
Xavier Becerra, Attorney General
Thomas S. Patterson, Senior Assistant Attorney General
Paul Stein, Supervising Deputy Attorney General
Anna Ferrari, Deputy Attorney General
Senior and Disability Action et al. v. Weber, A159540
18