BILL ANALYSIS Ó
AB 1413
Page 1
Date of Hearing: January 26, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1413 (Fong) - As Amended: January 5, 2012
CONCURRENCE IN SENATE AMENDMENTS
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|ASSEMBLY: | |(April 11, |SENATE: |36-0 |(January 19, |
| | |2011) | | |2012) |
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(vote not relevant)
SUBJECT : Elections.
SUMMARY : Makes numerous substantive and technical changes to
state election law to implement the top two primary election
system.
The Senate amendments delete the Assembly version of the bill,
and instead:
1)Conform the procedure for presidential electors to be chosen
by the Democratic Party to the top two primary system, by
providing that the candidate who receives the most votes in
the primary election for Congress and for US Senate among the
candidates who declared a preference for the Democratic Party
each choose a presidential elector, rather than having the
Democratic nominees for Congress and US Senate choosing
presidential electors. Provide that the chairperson of the
Democratic Party shall appoint an elector if the candidate who
is entitled to appoint that elector fails to do so.
2)Require that the option for a voter to decline to disclose a
party preference be placed at the end of the listing of
qualified political parties on the voter registration card.
Permit 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)Permit candidate filing for a voter-nominated office to
re-open if any candidate who filed nomination papers for the
primary election for that office dies after the deadline for
delivery of nomination documents to the elections official but
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not less than 83 days before the election. Permit nomination
documents, in this case, to be submitted until 5 p.m. on the
74th day prior to the election.
4)Modify the format of the declaration of candidacy and
nomination papers to conform to the top two primary system.
Require a candidate for voter-nominated office to include a
certification of his or her party preference history for the
previous 10 years on his or her nomination papers.
5)Provide 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.
6)Provide 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)Provide 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.
8)Shorten and clarify the explanation of election procedure for
party-nominated office, voter-nominated office, and
nonpartisan office that will appear in the state ballot
pamphlet. Require an explanation of the election 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)Modify 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) If the candidate has declared a preference for a
qualified political party on his or her most recently filed
affidavit of registration, the designation appears in the
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following manner: "Party Preference: _______ (name of the
qualified political party)."
b) If the candidate has not declared a preference for a
qualified political party on his or her most recently filed
affidavit of registration, the designation appears in the
following manner: "Party Preference: None."
10)Provide flexibility to counties in the placement on the
ballot of the party affiliation of Presidential candidates.
11)Eliminate certain type-size and typeface requirements for
instructions that must be printed on the ballot. Clarify and
shorten the instructions that appear on the ballot. Require
specified instructions to be printed on the ballot at general
elections.
12)Provide that spaces for write-in votes will not be printed on
the ballot for voter-nominated offices at the general
election.
13)Conform provisions of the Political Reform Act (PRA) that
regulate payments made by a political party for communications
with its members to the top two primary election process.
14)Add a severability clause.
15)Make various technical and non-substantive changes.
16)Add an urgency clause, allowing this bill to take effect
immediately upon enactment.
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. 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.
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2)Allows any candidate for congressional or state elective
office, except a candidate for SPI, to have his or her
political party preference, or lack of party preference,
indicated on the ballot.
3)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.
4)Defines the term "voter-nominated office" to include all
congressional and state elective offices, except for SPI and
judicial offices.
5)Prohibits write-in votes from being counted at the general
election for a voter-nominated office.
6)Provides that payments made for communications to members of
an organization for the purpose of supporting or opposing a
candidate or a ballot measure are not contributions or
expenditures, provided that those payments are not made for
general public advertising such as broadcasting, billboards,
and newspaper advertisements. Requires such payments made by
a political party for communications to its members that would
otherwise qualify as contributions or expenditures to be
reported in the same manner as contributions or expenditures.
7)Prohibits local governments from adopting campaign finance
ordinances that restrict communications between an
organization and its members unless state law similarly
restricts such communications.
AS PASSED BY THE ASSEMBLY , this bill made minor and technical
changes to the PRA.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
1)Purpose of the Bill : 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
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the same time that measure was approved, the Legislature also
approved a series of changes to the Elections Code to
implement a top two 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, this 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.
2)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 Governor Schwarzenegger 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
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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, this 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 in this committee's
oversight hearing.
3)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
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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 nonpartisan office, and provides a
mechanism to protect against this type of situation. In
certain circumstances, when an incumbent candidate for
nonpartisan 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.
4)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 statute that
require write-in spaces to appear on the ballot, however, were
unaffected.
After SB 6 passed, and Proposition 14 was approved, a group of
voters filed a lawsuit against the Secretary of State, arguing
that it was unconstitutional for write-in lines to be printed
on the ballot if write-in votes weren't going to be counted.
In Field v. Bowen (2011) 199 Cal.App.4th 346, the California
Court of Appeals for the First Appellate District, Division
Three, concluded that "Ýi]t would make no sense to authorize
the voters to cast votes that cannot be counted," and as such,
the court ordered that "Ýn]o lines or spaces for write-in
votes for voter-nominated offices can be placed on general
election ballots." The deadline to appeal the decision in
Field to the state Supreme Court has passed, and the decision
by the Court of Appeals is final.
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In light of the provisions of SB 6 and the Appellate Court's
decision in Field , write-in votes won't be counted and
write-in spaces won't appear on the ballot at the general
election for voter-nominated offices. This bill conforms the
Elections Code to the court's decision in Field .
5)Member Communications : Proposition 34 was placed on the
November 2000 ballot by SB 1223 (Burton), Chapter 102,
Statutes of 2000. The proposition, which passed with 60% of
the vote, revised state laws on political campaigns for state
elective offices and ballot propositions. One of the
provisions of Proposition 34 provided that payments for
communications by an organization to members, employees,
shareholders, or families of members, employees, or
shareholders of that organization (commonly known as "member
communications") for the purpose of supporting or opposing a
candidate or a ballot measure are not contributions or
expenditures under the PRA, provided those payments are not
made for general public advertising such as broadcasting,
billboards, and newspaper advertisements. These member
communications provisions were expressly made applicable to
communications between a political party and the members of
that party.
With the passage of SB 6, individuals who select a political
party when registering to vote are no longer considered to be
affiliating with that party, but instead are declaring a
preference for that political party. However, SB 6 failed to
make conforming changes to the member communications
provisions of the PRA. This bill conforms the member
communications provisions of the PRA to the top two system by
clarifying that the member communications laws apply to
communication between a political party and a person who
expressed a preference for that party on his or her affidavit
of voter registration.
6)Arguments in Support : In support of this bill, the California
Association of Clerks and Election Officials writes:
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
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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
Proposition 14 and assist in maintaining the integrity
and transparency of California's elections.
7)Arguments in Opposition : The Asian American Action Fund and
the Coalition for Free & Open Elections object to the
provisions of this bill that specify that write-in spaces will
not be printed on the ballot at a general election for
voter-nominated office. However, as noted above, pursuant to
SB 6 and the California Court of Appeals ruling in Field ,
write-in votes won't be counted and write-in spaces won't
appear on the ballot at the general election for
voter-nominated offices even absent the enactment of this
bill.
In its opposition letter, the Asian American Action Fund writes:
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
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the State of Washington-which recently adopted the
"Top Two" primary system-allows voters to cast
write-in votes in the general election.
8)Political Reform Act of 1974 : California voters passed an
initiative, Proposition 9, in 1974 that created the Fair
Political Practices Commission and codified significant
restrictions and prohibitions on candidates, officeholders and
lobbyists. That initiative is commonly known as the PRA. Most
amendments to the PRA that are not submitted to the voters,
including those contained in this bill, must further the
purposes of the initiative and require a two-thirds vote of
both houses of the Legislature.
9)Prior Version : The prior version of this bill, which was
approved by the Assembly, made various minor and technical
changes to the PRA. 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 Assembly Rule 77.2.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Clerks and Election Officials
California State Association of Counties
Californians to Defend an Open Primary
Secretary of State Debra Bowen
Opposition
Asian American Action Fund
Coalition for Free & Open Elections
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094