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: 1/5/12 in Senate
Vote: 27 - Urgency
SENATE ELECTIONS & CONST. AMEND. COMM. : 5-0, 1/10/12
AYES: Correa, La Malfa, De León, Gaines, Lieu
ASSEMBLY FLOOR : Not relevant
SUBJECT : Elections: Top Two Primary
SOURCE : Author
DIGEST : This bill amends provisions of SB 6 (Maldonado),
Chapter 1, Statutes of 2009, which implemented the top two
primary system by (1) providing flexibility to counties in
the placement on the ballot of the party affiliation of
presidential candidates, (2) eliminating certain type-size
and typeface requirements for instructions that must be
printed on the ballot, and (3) clarifying and shortening
the instructions that appear on the ballot. It also
provides that space for write-in candidates will not be
printed on the ballot for voter-nominated offices at the
general election and makes changes in the law concerning
the death of a candidate.
ANALYSIS :
Existing law:
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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/her political party preference, or lack of party
preference, indicated on the ballot.
4. Permits a voter to declare a party preference when
he/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 United States Senate each choose a
presidential elector, rather than having the Democratic
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nominees for Congress and U.S. 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 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/her partisan
affiliation history for the previous 10 years on the
nomination papers that he/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/her
to appear on the ballot at the general election if
he/she had lived until after the election, the name of
that deceased candidate shall appear on the ballot at
the general election.
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/she was elected.
Provides that this vacancy shall be filled in the same
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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."
10.Provides that spaces for write-in candidates will not be
printed on the ballot for voter-nominated offices at the
general election.
Background
I. 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 1,
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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 election
officials greater flexibility to format their ballots.
These changes should help address some of the concerns
raised by elections officials.
II. Death of a Candidate . Under the provisions of SB 6, if
a candidate for voter-nominated office at the general
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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 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.
III. 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
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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
According to the author's office, 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 1/17/11) (per Senate Elections and
Constitutional Amendments Committee analysis)
California Association of Clerks and Election Officials
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Legislative Committee
Californians to Defend an Open Primary (however, in their
letter they indicate that they are opposed to the
provision deleting the law allowing candidates
unassociated with major parties to be silent or
unidentified on ballot with regard to party preference)
Secretary of State
OPPOSITION : (Verified 1/17/11) (per Senate Elections
and Constitutional Amendments Committee
analysis)
Asian American Action Fund
Coalition for Free and Open Elections
ARGUMENTS IN SUPPORT : The California Association of
Clerks and Elections Legislative Committee states: "AB
1413 focuses on critical challenges associated with the
implementation language for Proposition 14 provided in
Senate Bill 6 (SB 6, Chapter 1, 2009). Mandates in SB 6
require additional text and formatting associated with
listing of candidates that, unless amended, will stress -
and in some cases exceed - the capability of certain voting
systems currently used in California. AB 1413 reduces the
risk of exceeding system capacity and provides necessary
technical changes to allow for a more practical
implementation of the new Top Two Primary election system.
California election officials are tasked with implementing
newly adopted policies, educating voters and poll workers,
and providing quality election services. Adoption of the
significant technical amendments listed in AB 1413
addresses the limitations of California's existing voting
systems and will result in a more efficient implementation
of Propositon1 4 and assist in maintaining the integrity
and transparency of California's elections."
Californians to Defend an Open Primary state: "During the
Interim, we participated in a series of meetings and
conversations regarding AB 1413 with interested parties,
including the Secretary of State and local election
officials. Progress has been made. Provisions harmful to
Proposition 14 that would have generated additional
litigation have been removed. Although, we do not endorse
every provisions of AB 1413 ?, on balance, the bill will
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promote a fair and efficient election in June, 2012 and
thereafter. We object to AB 1413's deletion of existing
provisions of law that allow candidates unassociated with
major parties to be silent (or unidentified) on ballots
with regard to party preference. We believe that
candidates unassociated with qualified parties have the
right to leave the ballot space reserved for party
preference blank. This was an issue in the
recently-decided Field v. Bowen , 199 Cal. App. 4th 346
(2011), and in the early proceedings of a parallel federal
action, Chamness v. Bowen , Case No. 11-cv-01479-ODW (C.D.
Cal.). AB 1413 may precipitate a similar lawsuit as
candidates assert their constitutional right to 'silence'
on the issue of party preference."
ARGUMENTS IN OPPOSITION : The Asian American Action Fund
states: "For over a century, write-in voting has provided
Californians with an important safety valve. If a
candidate suddenly withdraws, becomes incapacitated or is
charged with a crime, it is often too late to remove his or
her name from the ballot - depriving the voters of the
critical opportunity to vote for their second choice.
Toward that end, write-in voting gives voters the ability
to choose the candidate of their choice. In November 2010,
a write-in candidate (Lisa Murkowski) was elected to the
U.S. Senate. Over the past century, California has elected
one write-in candidate for the U.S. Senate and two write-in
candidates for the U.S. Congress. Significantly, even the
State of Washington - which recently adopted the 'Top Two'
primary system - allows voters to cast write-in votes in
the general election."
DLW:mw 1/18/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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