BILL ANALYSIS Ó
AB 754
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Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 754 (Fletcher) - As Introduced: February 17, 2011
SUBJECT : Elective office: military service.
SUMMARY : Allows a person who is deployed on active military
service outside the state to authorize an attorney-in-fact by a
power of attorney to complete and file on the deployed person's
behalf a declaration of candidacy, nomination paper, and any
other paper necessary for the deployed person to run for office.
Provides that a declaration or paper filed by the
attorney-in-fact is deemed to be completed and filed by the
deployed person.
EXISTING LAW permits:
1)A candidate to designate another person to receive a
declaration of candidacy form from the elections official on
behalf of the candidate.
2)A member of the Armed Forces of the United States who is
stationed overseas and serving in a conflict or a war and is
unable to appear for the licensure and solemnization of a
marriage to enter into that marriage by the appearance of an
attorney-in-fact, commissioned and empowered in writing for
that purpose through a power of attorney.
FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
Currently, thousands of California's men and women are
serving honorably in the United States Military. Elections
Code sections 8028 (a) and (b) allow a candidate to
designate someone to pick up the required election forms
and deliver them to the candidate for return. While this
is permissive, it presents a problem for service members
located in remote, undisclosed locations to execute and
return legal documents in the timely fashion required by
state law. Notwithstanding any other law, a service member
AB 754
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who is deployed on active military service would be able to
authorize an individual with power of attorney to complete
and file on their behalf. A declaration of candidacy filed
through power of attorney would be deemed sufficient for
all filing purposes.
2)Nomination Documents : As noted above, existing law already
allows a candidate for office to designate another person to
receive a declaration of candidacy form from the elections
official on behalf of the candidate. Existing law does not,
however, explicitly permit a designated representative of a
candidate to complete nomination documents on behalf of the
candidate.
Depending on the office for which a person is running, a
candidate may have to submit a declaration of intention to run
for office, a declaration of candidacy, and nomination papers.
The requirements for a candidate for office to file various
nomination documents serve a variety of purposes, one of which
is to ensure that the candidate meets the qualifications for
office and will be able to take office if he or she is
elected. For instance, when a candidate completes a
declaration of candidacy, the candidate must swear that he or
she meets the statutory and constitutional qualifications for
office, and must state that if nominated, the candidate will
accept the nomination and will not withdraw. Additionally,
the candidate must declare that the information contained on
the declaration of candidacy is true. A candidate who
knowingly files a declaration of candidacy that is false can
be punished by a fine of up to $1,000, by imprisonment for up
to three years, or by both a fine and imprisonment.
Under the provisions of this bill, an attorney-in-fact who was
authorized by a candidate to complete a declaration of
candidacy on the candidate's behalf would be required to
attest to the truthfulness of the information in the
declaration of candidacy, and would be required to declare, on
the candidate's behalf, that if the candidate is nominated at
the election, the candidate will accept that nomination and
will not withdraw. This could create legal uncertainty if an
attorney-in-fact made these declarations and it was later
discovered that the candidate did not meet the qualifications
for office. Similarly, legal ambiguity could result if there
was a lack of clarity about the specific office that a
deployed person intended to seek.
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3)Previous Legislation and Potential Amendments : SB 7 (Brulte
and Burton), Chapter 476, Statutes of 2004, allows a member of
the Armed Forces of the United States who is stationed
overseas and serving in a conflict or a war and is unable to
appear for the licensure and solemnization of a marriage to
enter into that marriage by the appearance of an
attorney-in-fact. SB 7 included a number of safeguards to
protect against fraud and to minimize the potential for legal
ambiguity or challenges of marriages entered into pursuant to
that bill.
As noted above, the provisions of this bill could create legal
uncertainty or ambiguity if questions arose about whether a
candidate met the qualifications to hold office, or if there
was a lack of clarity about the specific office that a
deployed person intended to seek. To protect against these
potential problems, the author and the committee may wish to
consider amendments to this bill to adopt some of the
protections that were included in SB 7. Specifically,
committee staff recommends that the author and the committee
consider amendments to this bill that would (1) require the
power of attorney document signed by the deployed person to
identify the specific office that the person is seeking, (2)
require the power of attorney to include a declaration that
the deployed person meets the statutory and constitutional
qualifications for office and that, if nominated, the person
will accept the nomination and not withdraw, (3) require the
power of attorney to state that it is solely for the purpose
of authorizing the attorney-in-fact to file the nomination
documents and papers for the deployed person for the office
specified on the power of attorney, and (4) provide that the
original or a copy of the power of attorney must be filed with
the relevant nomination document or paper.
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094