BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1413
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          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