BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: AB 1413 HEARING DATE:
9/7/11
AUTHOR: FONG ANALYSIS BY:
Darren Chesin
AMENDED: 9/2/11
FISCAL: YES
SUBJECT
Elections: "top two" primary election
DESCRIPTION
EXISTING LAW :
1.Requires that primary elections for Congress and for state
elective office, other than Superintendent of Public
Instruction (SPI), be conducted in a manner such that every
voter, regardless of party affiliation, may vote for any
candidate for that office without regard to the political
party of the candidate, provided that the voter is
otherwise eligible to vote for that office.
2.Provides that the two candidates that receive the highest
number of votes at a primary election for Congress or for
state elective office other than SPI, regardless of
political affiliation, move on to the general election.
3.Allows any candidate for congressional or state elective
office, except a candidate for SPI, to choose to have his
or her political party preference, or lack of party
preference, indicated on the ballot.
4.Permits a voter to declare a party preference when he or
she registers to vote. Requires that the option for a
voter to choose "No Party Preference" be placed at the
beginning of the listing of qualified political parties on
the voter registration card.
5.Defines the term "voter-nominated office" to include all
congressional and state elective offices, except for SPI.
6.Prohibits write-in votes from being counted at the general
election for a voter-nominated office.
7.Provides that for the purposes of the state's election
laws, the domicile of a person is that place in which his
or her habitation is fixed, wherein the person has the
intention of remaining, and to which, whenever he or she is
absent, the person has the intention of returning.
Provides that at a given time, a person may have only one
domicile.
8.Provides that the domicile of a Member of the Legislature
or a Representative in the Congress of the United States is
conclusively presumed to be at the residence address
indicated on that person's currently filed affidavit of
registration.
This bill makes numerous substantive and technical changes to
state election law to implement the top two primary election
system and clarifies a provision of law that governs
residency determinations for members of the Legislature and
Congress.
Specifically, this bill provides for all of the following:
1.Specifies that when a voter registers to vote and chooses a
political party, that voter is affiliating with that
political party, rather than declaring a preference for
that political party.
2.Conforms the procedure for presidential electors to be
chosen by the Democratic Party to the top two primary
system, by providing that the Democratic candidate who
receives the most votes in the primary election for
Congress and for US Senate each choose a presidential
elector, rather than having the Democratic nominees for
Congress and US Senate choosing presidential electors.
3.Requires that the option for a voter to decline to state a
party affiliation be placed at the end of the listing of
qualified political parties on the voter registration card.
Permits the Secretary of State (SOS) to continue to supply
existing voter registration cards prior to printing new or
revised forms that reflect this change.
4.Permits candidate filing for a voter-nominated office to
re-open if only one candidate who is affiliated with a
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particular political party has declared a candidacy for
nomination at the primary election for that office, and
that candidate dies after the deadline for delivery of
nomination documents to the elections official but not less
than 83 days before the election. Permits nomination
documents, in this case, to be submitted until 5 p.m. on
the 74th day prior to the election.
5.Modifies the format of the declaration of candidacy and
nomination papers to conform to the top two primary system.
Requires a candidate for voter-nominated office to include
a certification of his or her partisan affiliation history
for the previous 10 years on the nomination papers that he
or she files.
6.Provides that if a candidate for voter-nominated office
dies prior to the primary election, and that candidate
receives a sufficient number of votes to entitle him or her
to appear on the ballot at the general election if he or
she had lived until after the election, the name of that
deceased candidate shall appear on the ballot at the
general election.
7.Provides that if a candidate for voter-nominated office who
is entitled to appear on the general election ballot dies,
the name of that candidate nonetheless shall appear on the
general election ballot.
8.Provides that if a candidate for voter-nominated office who
is deceased receives a majority of votes cast for the
office at the general election, a vacancy shall exist in
the office to which he or she was elected. Provide that
this vacancy shall be filled in the same manner as if the
candidate had died subsequent to taking office.
9.Requires the SOS to write an explanation of electoral
procedure for party-nominated office, voter-nominated
office, and nonpartisan office that will appear in the
state ballot pamphlet. Requires an explanation of the
electoral procedure for voter-nominated office to be
included in the voter information portion of the sample
ballot at any special election held to fill a vacancy in
the Legislature or in Congress.
10.Modifies the manner in which the party preference
designation for a candidate for voter-nominated office will
appear on the ballot, pursuant to the following:
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a. Provide that if the candidate has a
political party affiliation, and has chosen to have
that affiliation printed on the ballot, the
affiliation shall appear in the following manner:
"Preference: _______ Party."
b. Provides that if the candidate does not
have a political party affiliation, and has chosen
to have that lack of affiliation printed on the
ballot, the designation shall appear in the
following manner: "Preference: None selected."
c. Provides that if a candidate does not wish
to have his or her party affiliation, or lack of
affiliation, printed on the ballot, the designation
shall appear in the following manner: "Preference:
Withheld by candidate."
11.Provides flexibility to counties in the placement on the
ballot of the party affiliation of Presidential candidates.
12.Eliminates certain type-size and typeface requirements for
instructions that must be printed on the ballot. Clarifies
and shortens the instructions that appear on the ballot.
13.Provides that spaces for write-in candidates will not be
printed on the ballot for voter-nominated offices at the
general election.
14.Clarifies a provision of law that governs residency
determinations for members of the Legislature and Congress.
15.Repeals various statutory language that has no legal
effect.
16.Makes various technical and non-substantive changes.
BACKGROUND
Top Two Primary & Ballot Formatting Issues : In February
2009, the Legislature approved SCA 4 (Maldonado), Res.
Chapter 2, Statutes of 2009, which was enacted by the voters
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as Proposition 14 on the June 2010 Statewide Primary Election
Ballot. Proposition 14 implemented a "top two" primary
election system in California for most elective state and
federal offices. At primary elections, voters are able to
vote for any candidate, regardless of party, and the two
candidates who receive the most votes, regardless of party,
advance to the General Election.
At the same time that it passed SCA 4, the Legislature also
approved and the Governor signed SB 6 (Maldonado), Chapter 1,
Statutes of 2009. SB 6 made various changes to state statute
that became effective upon the approval of Proposition 14 by
the voters. While many of the changes to state law made by
SB 6 were merely conforming changes to provide for a "top
two" primary system, some of the changes were more
substantive. For instance, for offices that are subject to
the top two primary, SB 6 prohibited write-in votes from
being counted at the November general election and required
independent candidates to appear on the ballot at the primary
election (under the law prior to the adoption of SB 6,
independent candidates only appeared on the ballot at the
general election). Additionally, SB 6 required the state
voter registration form to be redesigned and required certain
new information to be printed on the ballot at elections for
state and federal office.
In March 2010, the Assembly Elections and Redistricting
Committee held an oversight hearing on the impacts of the top
two primary election system and SB 6 on election costs and
administration. Among other testimony, the committee heard
from elections officials who indicated that certain aspects
of SB 6 could significantly increase the length of ballots at
primary elections, thus increasing election costs.
Specifically, elections officials expressed concern with the
format in which a candidate's party preference was to appear
on the ballot, with the length of language that will be
printed on the ballot to explain the top two primary process,
and with certain type size and typeface requirements for
language that must be included on the ballot.
This bill makes various modifications to the language that
will appear on the ballot to address these formatting
concerns. This bill shortens the format in which a
candidate's party preference is displayed on the ballot,
shortens and clarifies the ballot instructions that appear on
the ballot, and eliminates certain type size and typeface
requirements to give county elections officials greater
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flexibility to format their ballots. These changes should
help address some of the concerns raised by elections
officials in this committee's oversight hearing.
Party Preference vs. Party Affiliation : Under the provisions
of SCA 4 and Proposition 14, a candidate for voter nominated
office may choose to have his or her political party
preference, or lack of political party preference, printed on
the ballot. SB 6 made corresponding changes to state statute,
but also changed the manner in which voters registered to
vote, allowing voters to state a party preference on the
voter registration card, rather than allowing voters to
affiliate with a political party when completing the voter
registration card. This change could have broader impacts
than intended-if voters who declare a party preference for a
particular political party are not deemed to be members of
that party, this change could have implications on whether or
not California voters are able to participate in the
political parties' primary elections for President, among
other consequences.
This bill provides that voters would be given the option of
affiliating with a political party on the voter registration
form, rather than stating a party preference. Candidates for
voter nominated office would still have the ability to have
the name of their preferred qualified political party
included on the ballot, or would have the option of having
that information left off the ballot.
Death of a Candidate : Under the provisions of SB 6, if a
candidate for voter-nominated office at the general election
dies, depending on when that candidate dies, he or she may be
replaced on the ballot by the next highest vote-getter from
the primary election. This could lead to some unusual, and
potentially undesirable, situations. For instance, in a
district where voters strongly prefer one political party, if
that party's only candidate dies, he or she could be replaced
on the ballot by a candidate from a different political
party. This, combined with the fact that write-in votes are
prohibited at the general election for voter nominated
offices, could result in voters being left to choose between
two candidates who are unrepresentative of the policy
preferences of the vast majority of voters in the district.
Similarly, if a number of candidates chose not to run for an
office because a popular incumbent was running for
re-election, and that incumbent subsequently died, voters
could be forced to choose from a pool of lesser-qualified
candidates.
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In fact, state law already recognizes the potential for such
a situation in races for non-partisan office, and provides a
mechanism to protect against this type of situation. In
certain circumstances, when an incumbent candidate for
non-partisan office dies before the election, state law
provides for the election to be canceled and a special
election to be held at a future date.
This bill would provide that when a candidate for voter
nominated office dies, the name of that candidate will
nonetheless remain on the ballot. If the deceased candidate
is one of the top two vote getters at the primary election,
the name of that deceased candidate will also appear on the
ballot at the general election. If the deceased candidate
prevails at a general election, there will be a vacancy in
the office that is filled in the same manner as if the
vacancy had occurred after the candidate had taken office.
Write-In Candidates : One of the provisions of SB 6
prohibited write-in votes from being counted at a general
election for a voter-nominated office. Other provisions of
law that require that write-in spaces appear on the ballot,
however, were unaffected. This could create confusion, and
could mislead voters into thinking that write-in votes for
candidates for voter-nominated office at a general election
will be counted. This bill eliminates write-in spaces on the
ballot for voter-nominated offices at the general election in
order to avoid this confusion.
Domicile and Residency : The Elections Code provides that
"the domicile of a person is the place in which his or her
habitation is fixed, wherein the person has the intent of
remaining, and to which, whenever he or she is absent, the
person has the intention of returning." Existing law also
provides that, at a given time, a person may have only one
domicile.
At the same time, existing law provides that "the residence
of a person is that place in which the person's habitation is
fixed for some period of time, but where he or she does not
have the intention of remaining."
In 1984, the Legislature approved and the Governor signed AB
1798 (W. Brown), Chapter 21, Statutes of 1984, which provided
that for the purposes of determining the domicile of a member
of the Legislature or a Representative in the Congress of the
United States, it is conclusively presumed that the residence
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address indicated on that person's currently filed affidavit
of registration is the person's domicile. AB 1798 was
approved in recognition of the fact that sitting members of
the Legislature and Congress face special circumstances
because of the nature of their jobs, and that those
circumstances could create situations where a consideration
of the factors traditionally used to determine a person's
domicile could create an inaccurate impression of the true
domicile of a member of the Legislature or of Congress. For
example, members of the Legislature and of Congress may spend
long periods of time away from the districts that they
represent in order to serve their constituents in Sacramento
or in Washington, D.C., respectively. Similarly, incumbent
legislators and members of Congress may be forced to relocate
involuntarily due to redistricting in order to continue to
represent their constituents. As the analysis of AB 1798 by
the Assembly Committee on Elections, Reapportionment, and
Constitutional Amendments noted, "Ýb]ecause of the nature of
their position, changing conditions in housing, employment
and schooling, and other factors, including, but not limited
to, nonstop reapportionment, Representatives in Congress and
Members of the Legislature are finding themselves to be in a
? situation with other classes of people requiring a separate
determination of domicile."
A recent Court of Appeals decision held that the conclusive
presumption established by AB 1798 only applies, however, if
the elected official can demonstrate that the address listed
on the affidavit of registration is a legal residence of that
official. People v. Superior Court, No. B232709, (Second
Dist., Div. Five, July 12, 2011). As described by a
California court in Federal Deposit Ins. Corp. v. Superior
Court (1997) 54 Cal.App.4th 337, however, conclusive
presumptions are "not truly rules of evidence, but are
substantive rules of law, which exist to further particular
social policies and purposes." In light of this substantive
rule of law, then, state courts have further held that
"Ýe]vidence is inadmissible to rebut a conclusive
presumption." People v. Thompson (1979) 89 Cal.App.3d 193.
AB 1798 enacted a conclusive presumption specifically because
the circumstances faced by members of the Legislature and of
Congress can create situations where the evidence that is
typically relied upon to determine a person's domicile will
create an inaccurate picture of the true domicile of a member
of the Legislature or of Congress. As a result, the
Appellate Court decision seems to undermine the intent of the
conclusive presumption established by AB 1798.
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This bill clarifies the language of the conclusive
presumption that was created by AB 1798, making it explicit
that the domicile of a member of the Legislature or of
Congress is conclusively presumed to be the address that the
official lists on his or her affidavit of voter registration
in the section of the affidavit that asks for the affiant's
place of residence.
COMMENTS
1. According to the author , in 2009, as part of a state
budget agreement, a measure was placed on the ballot for
the voters to consider authorizing a "top two" primary
election system. At the same time that measure was
approved, the Legislature also approved a series of
changes to the Elections Code to implement a top two
primary election system.
Unfortunately, due to the nature in which those statutory
changes were adopted, they created a number of problems
for the effective and efficient operation of elections.
Last year, the Assembly Elections and Redistricting
Committee held an oversight hearing to hear from elections
officials about some of the problems with those statutory
changes. Among other problems, county elections officials
testified that certain ballot printing requirements
created an unnecessary burden, and could significantly
increase election costs.
Since that time, state and county elections officials have
been working diligently to develop fixes that will help
implement the top two primary system in a more effective
manner. This bill reflects much of that work, and makes a
number of technical and substantive changes to assist
elections officials in carrying out their
responsibilities. In addition, this bill addresses a few
other substantive and technical issues with the
implementation of the top two primary election system.
Finally, AB 1413 also provides important clarification to a
provision of state law that governs residency
determinations for members of the Legislature and
Congress. An appellate court recently read that provision
of law in a manner that is inconsistent with the
Legislative history.
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2. Prior Version : The prior version of this bill, which was
approved by the Assembly, made various minor and technical
changes to the Political Reform Act. Those provisions
were removed from this bill in the Senate, and the current
contents were added. As a result, this bill has been
re-referred to this committee pursuant to Senate Rule
29.10.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 7-0
Assembly Appropriations Committee: 16-0
Assembly Floor: 78-0
Senate ER&CA Committee: 5-0
(Note: these votes do not reflect the current version of this
bill.)
POSITIONS
Sponsor: Author
Support: None received
Oppose: None received
AB 1413 (FONG) Page 10