BILL ANALYSIS                                                                                                                                                                                                    Ó




                          SENATE COMMITTEE ON ELECTIONS 
                          AND CONSTITUTIONAL AMENDMENTS
                            Senator Lou Correa, Chair


          BILL NO:   AB 1413                            HEARING DATE: 
          1/10/12
          AUTHOR:    FONG                               ANALYSIS BY:    
           Darren Chesin 
          AMENDED:   1/5/12
          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.

           This bill  makes numerous substantive and technical changes to 
          state election law to implement the top two primary election 
          system.  Specifically, this bill provides for all of the 
          following:

          1.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.

          2.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.

          3.Permits candidate filing to reopen if any candidate for 
            voter-nominated office dies between the deadline for filing 
            for office and the 83rd day prior to the election, instead 
            of allowing candidate filing to reopen only in the 
            circumstance where there is only one candidate who has 
            filed, and that candidate dies.  Repeals obsolete language 
            regarding filing reopening for partisan nomination at the 
            primary election.

          4.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.

          5.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.

          AB 1413 (FONG)                                         Page 2  
           






          6.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.  

          7.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.  Provides that 
            this vacancy shall be filled in the same manner as if the 
            candidate had died subsequent to taking office.

          8.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.

          9.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:

                 Provides that if the candidate has a political party 
               preference the preference shall appear in the following 
               manner: "Party Preference: _______ (name of the 
               qualified political party as disclosed upon the 
               candidate's affidavit of registration)."

                 Provides that if the candidate has declined to 
               disclose a political party preference on his or her 
               affidavit of registration, the designation shall appear 
               in the following manner:  "Party Preference: None."

          1.Provides flexibility to counties in the placement on the 
            ballot of the party affiliation of Presidential candidates.

          2.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.

          3.Provides that spaces for write-in candidates will not be 
            printed on the ballot for voter-nominated offices at the 
            general election.

          4.Makes various technical and non-substantive changes and 
            contains an urgency clause.

          AB 1413 (FONG)                                         Page 3  
           






                                     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 
          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 
          AB 1413 (FONG)                                         Page 4  
           






          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.

           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 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.

          AB 1413 (FONG)                                         Page 5  
          






           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 consistent with the California 
          First Court of Appeals decision on September 19, 2011 in 
           Field  v.  Bowen  .





                                      COMMENTS  

            1. According to the author  , in 2009, as part of a budget 
             deal, 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 session, 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.
          AB 1413 (FONG)                                         Page 6  
           







            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 E&CA Committee:                      5-0
          (Note: these votes do not reflect the current version of this 
          bill.)
                                               
                                    POSITIONS  

          Sponsor:  Author
          
           Support:  California Association of Clerks and Election 
                   Officials
                    Californians to Defend an Open Primary
                    Secretary of State
           
           Oppose:   Asian American Action Fund
                     Coalition for Free & Open Elections (COFOE)


















          AB 1413 (FONG)                                         Page 7