BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1413|
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THIRD READING
Bill No: AB 1413
Author: Fong (D)
Amended: 9/2/11 in Senate
Vote: 21
PRIOR VOTES NOT RELEVANT
SUBJECT : Elections
SOURCE : Author
DIGEST : This bill (1) clarifies and strengthens existing
law that states the domicile of a Member of the Legislature
or a member of Congress shall be conclusively presumed to
be at the residence address indicated on that person's
currently filed affidavit of registration, (2) makes
numerous technical and substantive changes to the "top two"
primary law and other related statutes.
Senate Floor Amendments of 9/2/11 delete the prior version
which made minor and technical changes in the Political
Reform Act and instead provides for the above language.
ANALYSIS :
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
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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
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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:
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 United States Senate each choose a
presidential elector, rather than having the Democratic
nominees for Congress and United States 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
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
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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:
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. Provide 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."
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C. Provide 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 and Ballot Formatting Issues . In February
2009, the Legislature approved SCA 4 (Maldonado),
Resolution Chapter 2, Statutes of 2009, which was enacted
by the voters 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
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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 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
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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.
In fact, state law already recognizes the potential for
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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 provides 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
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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 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 Elections, Reapportionment, and Constitutional
Amendments Committee 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
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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.
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
According to the author's office, 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.
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
DLW:mw 9/6/11 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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