BILL ANALYSIS Ó
SB 88
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Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 88 (Yee) - As Amended: March 9, 2011
AS PROPOSED TO BE AMENDED
SENATE VOTE : 39-0
SUBJECT : Elections: names of candidates.
SUMMARY : Requires a candidate's alphabet-based name to be
phonetically transliterated when the jurisdiction is required to
translate ballot materials into languages other than English
unless certain conditions are met. Specifically, this bill :
1)Requires ballots to contain phonetic transliterations of
candidates' names whenever ballot materials are translated
into a language other than English that is a character-based
language, including Mandarin Chinese, Cantonese, Japanese, and
Korean.
2)Permits jurisdictions that are required to provide ballot
translations of candidates' names to establish an appeal
process to challenge the translation of a candidate's name on
the ballot, for a candidate running for office exclusively in
that jurisdiction and who is not running for the following
offices:
a) Member of the Assembly, State Senate, United States
House of Representatives, State Board of Equalization;
or,
b) Justice of the Court of Appeal.
3)Provides that in a jurisdiction in which separate ballots
containing translations of the candidates' names are required
to be printed in different languages, both the alphabet-based
name and the translation of the candidate's name, for
candidates that have translated names, shall appear on the
translated ballot. Provides that if a jurisdiction is unable
to comply with this requirement due to limitations of its
voting system, any new system purchased by the jurisdiction
after June 1, 2012, shall be able to accommodate the
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requirement.
4)Clarifies that all translated ballot materials in an election
must use the same translated name, whether phonetic
transliteration or character-based, for a candidate.
5)Allows a candidate who has a character-based name by birth,
which can be verified by a birth certificate or other valid
identification, to use that name on the ballot instead of a
phonetic transliteration.
6)Allows a candidate who does not have a character-based name by
birth, but who identifies by a particular character-based name
and can demonstrate that he or she has been known and
identified within the public sphere by that name over the past
two years, to use that name instead of a phonetic
transliteration.
EXISTING LAW :
1)Requires the translation of ballots and ballot materials into
languages other than English under certain circumstances.
2)Requires the Secretary of State (SOS) to consult with an
advisory body consisting of language experts and nonpartisan
organizations when preparing translations of ballot titles and
summaries and ballot labels in a language other than English,
and prohibits local elections officials from selecting or
contracting with another person to provide translations of the
same text.
3)Provides that if a candidate changes his or her name within
one year of any election, the new name shall not appear on the
ballot unless the change was made by marriage or a decree of
any court of competent jurisdiction.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
State-mandated local program; contains reimbursement direction.
COMMENTS :
1)Author's Amendment : In response to concerns regarding
elections that cover more than a single county, the author has
agreed to take amendments to clarify that all translated
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ballot materials in an election must use the same translated
name, whether phonetic transliteration or character-based, for
a candidate. This analysis reflects the proposed author's
amendment.
2)Purpose of the Bill : According to the author:
It is ever more common in California for candidates for
public office to submit, or request, a translation of their
English name to appear on the ballot. Unfortunately, this
practice has been abused by some candidates who have
created and used popular Asian-character names as a means
of winning more votes from a particular ethnic group.
Currently, candidates can submit any Asian-character name
to appear on the ballot as the "translation" of their own.
This has resulted in abuse by some candidates who have
created and used popular Asian names as a means of
deceiving the public to gain votes.
In one instance, a candidate for Supervisor in California
hired a political consulting firm to pick an
Asian-character name for him. This name was allowed on the
ballot even though it had no relationship to his English
name and he had no history of being identified by it. In
another instance, a candidate submitted the "translation"
of his name as a common Asian name that the candidate had
just picked for the race, with the intent to win votes from
that community through this false identity and not through
his actual name or accomplishments.
The lack of state law governing this topic has opened the
door to abuse. Allowing this voter fraud to continue or
worse, to expand, is an affront to civil rights and
democracy.
SB 88 will help protect the integrity of ballots by
ensuring that non-English speaking communities are
accurately informed of who they are voting for. SB 88 will
create standard guidelines for the fair use of candidates'
names on ballots in jurisdictions that have Chinese, Korean
or Japanese ballot translations.
This bill prevents fraud by requiring candidates in
jurisdictions with alternative language ballots, where the
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candidate's name is already being translated, to be
provided a phonetic translation or transliteration of their
English name by the county elections office or by the
Secretary of State's Office. If the candidate has an Asian
character name by birth or one that they have been known by
within the public sphere, they may use that name instead.
This will help stop the last-minute, deceptive practice of
making up a fraudulent name simply to deceive Asian voters
into voting for a candidate.
On the flip side, this bill will also protect people who
legitimately identify by an Asian name. In a California
Assembly race, a candidate was initially rejected for the
use of a name that he had used and been identified by
within the Chinese community for a number of years. SB 88
will establish standards to protect people like this
candidate who legitimately have an Asian name they would
like to be identified by on the ballot.
SB 88 will establish statewide guidelines for counties and
the Secretary of State's Office to follow to ensure the
integrity of the translated names on our ballots in
California. It will prevent the hodgepodge rules and
regulations that are currently in place in different
regions that place access to our democratic system at risk
for Asian-language communities.
3)Minimizing Obstacles : Various provisions of state and federal
law require elections officials to provide assistance to
voters in languages other than English in areas of the state
where specified numbers or percentages of the voting-age
population have limited English skills. Among other forms of
assistance, elections officials may be required to provide
election materials in languages other than English.
Based on the applicable provisions of the federal Voting
Rights Act of 1965 (VRA), voting materials in California must
be provided in Spanish as well as English for each federal
election. Additionally, twenty five California counties are
required to translate ballot materials into languages other
than Spanish, including character-based languages. Counties
currently requiring translations into character-based
languages include Alameda, Los Angeles, Orange, San Francisco,
San Mateo, and Santa Clara.
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Expanding existing law to provide guidance for phonetically
transliterating candidates' names on ballot materials, in
jurisdictions that are required to provide translations into
character-based languages, is a way to minimize obstacles for
voters and to eliminate the creation of Asian names by
candidates who desire to benefit from their translated
meanings to gain votes.
4)Public Examination : Existing law provides that during a
10-calendar-day public examination period, any voter of the
jurisdiction in which the election is being held, or the
elections official, may seek a writ of mandate or an
injunction requiring any or all of the material in candidate's
statements to be amended or deleted. The writ of mandate or
injunction request shall be filed no later than the end of the
10-calendar-day public examination period. An elector may
seek a writ of mandate alleging that an error or omission has
occurred, or is about to occur, in the placing of a name on,
or in the printing of, a ballot, sample ballot, voter
pamphlet, or other official matter, or that any neglect of
duty has occurred, or is about to occur.
5)Local Jurisdictions : Local jurisdictions that are required to
provide ballot materials in languages other than English,
pursuant to the VRA, are permitted to adopt policies regarding
the translations of candidates' names if necessary. Of the
six California counties that are required to provide
translations in character-based languages, four of those
counties permit candidates to submit preferred
transliterations of their names as they'd like the names to
appear on the ballot.
6)How Long ? Under existing law, when a candidate changes his or
her name within one year of any election, that candidate's new
name is prohibited from appearing on the ballot unless the
change in name occurred as a result of marriage or a decree of
the court. This bill permits a candidate who does not have a
character-based name from birth, but who publicly identifies
himself or herself by one and can demonstrate that he or she
has been publicly identified by that name for the past two
years, to have the character-based name printed on ballot
materials instead of a phonetic transliteration.
7)Oppose Unless Amended : The California Association of Clerks
and Elections Officials' Elections Legislative Committee
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writes:
The Committee voted to Oppose this bill, unless
amended to remove subsection (a)(3) of Elections Code
Section 13217.1 which specifically allows a
jurisdiction to establish a local appeal process to
challenge the translation of a candidate's name. We
are aware that at least one jurisdiction currently has
such a process, and we find nothing in the law that
would prohibit individual jurisdictions from
establishing a local process. However, specifically
setting forth this option in the Elections Code would
result in undue pressure being exerted on those
jurisdictions that feel the appropriate venue for
challenges is the court system as set forth in Section
13314.
8)Previous Legislation : SB 288 (Yee) of 2009, which was
identical to this bill, was vetoed by Governor Schwarzenegger.
In his veto message the Governor argued that a change in
state policy is unnecessary, and that local jurisdictions can
adopt a policy regarding the translations of candidates' names
if necessary.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
AFL-CIO
California Communities United Institute
Chinese Consolidated Benevolent Association
City and County of San Francisco
Japanese American Citizens League
Korean American Bar Association of Southern California
Opposition
California Association of Clerks and Election Officials (unless
amended)
Analysis Prepared by : Lori Barber / E. & R. / (916) 319-2094