BILL ANALYSIS Ó SB 202 Page 1 Date of Hearing: September 9, 2011 ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING Paul Fong, Chair SB 202 (Hancock) - As Amended: September 8, 2011 SENATE VOTE : (vote not relevant) SUBJECT : Elections: ballot measures. SUMMARY : Moves ACA 4 of the 2009-2010 Regular Session from the June 2012 statewide primary election ballot to the November 2014 statewide general election ballot. Provides that state initiative and referendum measures that qualify for the ballot on or after July 1, 2011, shall appear on the ballot only at the November statewide general election or at a statewide special election. Specifically, this bill : 1)Moves ACA 4 of the 2009-2010 Regular Session from the June 2012 statewide primary election ballot to the November 2014 statewide general election ballot. Repeals a requirement that specified language be used for the ballot label and ballot title and summary of ACA 4 at the election when it appears on the ballot. 2)Defines "general election," for the purposes of provisions of the state constitution that specify when a qualified state initiative or referendum measure will appear on the ballot, to mean only the election held throughout the state on the first Tuesday after the first Monday in November of each even-numbered year. Provides that this definition applies with respect to an initiative or referendum measure that is certified for the ballot on or after July 1, 2011. EXISTING LAW : 1)Requires ACA 4 of the 2009-2010 Regular Session to be submitted to the voters at the 2012 statewide presidential primary election. 2)Requires the ballot label for ACA 4, when that measure appears on the ballot, to read as follows: 'RAINY DAY' BUDGET STABILIZATION FUND. Changes the budget process. Could limit future deficits and spending by SB 202 Page 2 increasing the size of the state 'rainy day' fund and requiring above-average revenues to be deposited into it, for use during economic downturns and other purposes. 3)Requires the ballot title and summary for ACA 4, when that measure appears on the ballot, to read as follows: STATE BUDGET. CHANGES CALIFORNIA BUDGET PROCESS. LIMITS STATE SPENDING. INCREASES 'RAINY DAY' BUDGET STABILIZATION FUND. Increases amount of potential savings in the state 'rainy day' fund from 5% to 10% of the General Fund. Requires 3% of the general revenues to be deposited each year into the state 'rainy day' fund, except when revenues drop below last year's budget, adjusted for population and inflation, and other limited purposes, including for a declared emergency. Once the state 'rainy day' fund becomes full, additional revenues can only be used for one-time expenses like infrastructure, debt repayment, or retained in the state 'rainy day' fund. 4)Requires the Attorney General (AG) to prepare a ballot title and summary and a ballot label for each measure that will be submitted to the voters of the state. 5)Requires the Secretary of State (SOS) to submit a qualified state initiative measure to the voters at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. Permits the Governor to call a special statewide election for the measure. 6)Requires the SOS to submit a qualified state referendum measure to the voters at the next general election held at least 31 days after it qualifies or at any special statewide election held prior to that general election. Permits the Governor to call a special statewide election for the measure. 7)Defines "general election" as either of the following: a) The election held throughout the state on the first Tuesday after the first Monday in November in each even-numbered year; or, b) Any statewide election held on one of the following dates: SB 202 Page 3 i) The second Tuesday of April in each even-numbered year; ii) The first Tuesday after the first Monday in March of each odd-numbered year; iii) The first Tuesday after the first Monday in June in each year; and, iv) The first Tuesday after the first Monday in November of each year. FISCAL EFFECT : Unknown COMMENTS : 1)Purpose of the Bill : According to the author: Ballot initiatives have far reaching impact on our schools, the environment, and our business community. But few voters get to make that decision under the current process of allowing ballot initiatives be decided in the June Primary Elections. Most initiative states-18 out of 24-do not allow initiatives to be placed on primary or special election ballots because of low-voter turnout in these elections. The problem is clear: primary and special elections draw far fewer voters than general elections, meaning that such elections often do not accurately represent the needs, priorities, and desires of the population at large. Turnout in California's primary elections has hovered around only 30% of eligible voters since the late 1980s. The two lowest primary election turnouts in California history took place in 2002 and 2006, with 25% and 23% participation of eligible voters respectively. ÝSB 202 will] clarify the Elections Code to limit initiatives to the General Election, which is SB 202 Page 4 consistent with the State Constitution. Presently, the ÝCalifornia] Constitution states that an initiative that qualifies for the ballot shall be submitted to the voters "at the next general election held at least 131 days after it qualifies." Clarifying the Elections Code to limit initiatives to elections held in November of even numbered years (i.e., general election) is consistent with the requirements of the Constitution and eliminates any doubt as to the validity of the current statute. ÝSB 202 will] clarify the Elections Code to consolidate initiatives to the General Election to save taxpayers money and free up needed ballot space. Placing all initiatives on the November general election will result in shorter ballots in many counties for the June primary. With the new top two primary systems, the June ballots will become longer, as under top two all candidates are listed on the same ballot. Eliminating the need to add ballot measures will likely result in fewer ballot pages for some counties, saving counties both crucial space on the ballot and the cost of printing extra pages. 2)ACA 4 Election Date, Ballot Label, and Ballot Title and Summary : ACA 4 (Gatto and Niello), Res. Chapter 174, Statutes of 2010, proposes various changes to the state budget process and to the state's Budget Stabilization Fund. As with all constitutional amendments, ACA 4 requires the approval of the voters to take effect. Among other provisions, AB 1619 (Budget Committee), Chapter 732, Statutes of 2010, requires ACA 4 to be submitted to the voters at the 2012 statewide presidential primary election. This bill repeals the provisions of AB 1619, and instead provides for ACA 4 to be submitted to the voters at the November 4, 2014, statewide general election. In addition to specifying the election at which ACA 4 would appear on the ballot, AB 1619 also specified the text to be used as the ballot label and as the ballot title and summary for ACA 4 when it appears on the ballot. Subsequent to the Legislature's actions on AB 1619, the Court of Appeal of the SB 202 Page 5 State of California for the Third Appellate District ruled in Howard Jarvis Taxpayers Association, v. Bowen (2011) 192 Cal. App. 4th 110, that the Political Reform Act (PRA) requires the AG to prepare the ballot label and ballot title summary for state ballot measures, and that an attempt by the Legislature to override that requirement for any particular measure was not a valid amendment of the PRA that the Legislature had the authority to enact without the approval of voters. In light of this decision, the ballot label and ballot title and summary prepared by the Legislature for ACA 4 appear to be invalid. This bill repeals the provisions of AB 1619 that specify the language to be used for the ballot label and ballot title and summary for ACA 4. As a result, the ballot label and ballot title and summary for ACA 4 would be prepared by the AG pursuant to provisions of existing law that govern the preparation of ballot labels and ballot titles and summaries for state measures generally. 3)History of Initiatives on Primary Election Ballots : Since the initiative and referendum processes were created in 1911, the state Constitution has always provided that qualified measures will appear on the ballot at the next general election held after a specified time period, or at any special election called by the Governor held prior to that general election. In fact, for the first 60 years that the initiative and referendum processes were in effect in California, initiative and referendum measures did not appear on the ballot regularly at primary elections. Prior to the 1972 statewide primary election, initiatives and referenda had appeared on the ballot at a primary election only twice (two referenda in 1932 and one initiative in 1970), and in both those cases, the measures appeared on the ballot because a statewide special election was called for the same date as, and was consolidated with, the statewide primary election. However, in 1972, the SOS placed an initiative on the ballot at a primary election that was not consolidated with a statewide special election for the first time. The reason for the change in policy is unclear - although a bill enacted by the Legislature in 1971 allowed measures submitted to the voters by the Legislature to appear on primary election ballots (AB 1429 (Waxman), Chapter 1775, Statutes of 1971), there was no similar change made to provisions of state law governing the SB 202 Page 6 initiative or referendum process. Since placing an initiative on the primary election ballot in 1972, the office of the SOS has continued the practice of including initiatives on the ballot at primary elections. According to a report by the Center for Governmental Studies (Democracy by Initiative: Shaping California's Fourth Branch of Government, Second Edition, 2008), the practice of placing initiatives on primary election ballots may have been the result of an administrative error. In March 1980, the Chief Counsel to the SOS, in response to an inquiry, noted that an initiative measure appeared on the ballot at the primary election in 1970 because a special election was called and consolidated with the primary election. The response went on to note that "Ýt]he 1970 precedent has been followed routinely in subsequent years with numerous ? people-proposed measures appearing on primary election ballots," although unlike in 1970, initiatives appeared on the ballot at future primary elections even when no special election was consolidated with the primary election. The letter went on to provide three "legal rationales" for why the SOS's office placed initiative measures on the ballot at primary elections. Two of those rationales involved special elections having been called for the same day as the statewide primary election; the third rationale cited a court case construing the term "general election" to include primary elections. However, the court case specifically cited by the SOS's office in that memo (County of Alameda v. Sweeney, (1957) 151 Cal.App.2d 505) dealt with a section of the state Constitution that was unrelated to the state's initiative and referendum processes. Furthermore, that court decision was reached in 1957-15 years before the SOS's office changed policy, and began placing initiative and referendum measures on the ballot at primary elections. In fact, although it appears that the courts have not been asked to consider a challenge to the SOS's practice of placing initiative and referendum measures on the ballot at primary elections, a dissenting opinion in a state Supreme Court case raised a question about whether such a practice was consistent with the state Constitution. In her dissenting opinion in Brosnahan v. Eu, (1982) 31 Cal.3d 1, Chief Justice Bird noted that the constitutionality of submitting initiatives to voters at primary elections "would appear to be an open question." In a footnote to her opinion, the Chief Justice wrote: SB 202 Page 7 An additional issue, not raised by parties here, apparently has never been resolved by this court. The Constitution requires that initiative and referendum measures be submitted to the voters "at the next general election" after the measures qualify, or at a special election called by the Governor. (Cal. Const., art. II, §8, subd. (c) and §9, subd. (c)?) The Elections Code defines a general election as "the election held throughout the state on the first Tuesday after the first Monday of November in each even-numbered year." (Elec. Code, §20.) A special election is an election the timing of which is not otherwise prescribed by law. (Elec. Code, §27.) The election scheduled for June of 1982 is a regularly scheduled "direct primary" (see Elec. Code, §23) - not a special election or a general election. Thus, the constitutionality of submitting an initiative to the voters at a June primary election would appear to be an open question. Subsequent to the Supreme Court's decision in Brosnahan v. Eu, the Legislature changed the statutory definition of "general election" to include regularly scheduled statewide primary elections in AB 1466 (Statham), Chapter 405, Statutes of 1993. Legislative records indicate that the purpose of this provision in AB 1466 was protect against a challenge to a bond measure that was scheduled to appear on the statewide special election ballot in November 1993, since the state constitution requires certain measures that authorize indebtedness to be approved by the voters at a general election or at a direct primary election. By the time the Legislature approved AB 1466, changing the statutory definition of the term "general election," state initiative and referendum measures had been appearing on the ballot at primary elections for more than 20 years. Thus, although nothing in the Legislative history of AB 1466 indicates that the bill was intended to sanction the SOS's practice of submitting state initiative and referendum measures to voters at statewide primary elections, that bill nonetheless may have had the effect of providing a legal basis for that practice. This bill defines the term "general election," for the purposes of the provisions of the California Constitution that govern when state initiatives and referenda appear on the SB 202 Page 8 ballot, to mean only the election held throughout the state on the first Tuesday after the first Monday in November of each even-numbered year. Initiative and referendum measures could still appear on the ballot at statewide primary elections, but only if a statewide special election was called for the same day as, and was consolidated with, the statewide primary election. 4)Other States : According to information from the National Conference on State Legislatures, only four (Alaska, California, North Dakota, and Oklahoma) of the 24 states that have the initiative process allow initiatives to be placed on the ballot at a primary or special election. 5)Initiatives Qualified for the June 2012 Ballot : Two initiative measures that have already qualified are scheduled to appear on the ballot at the June 2012 statewide primary election. Those measures, relating to term limits and cigarette taxes, would be unaffected by this bill, because those measures were certified for the ballot in 2010, and this bill provides that the new definition of "general election" applies to initiative or referendum measures that are certified for the ballot on or after July 1, 2011. 6)Arguments in Opposition : The California Broadcasters Association, in opposition to the provisions of this bill that would prohibit initiative and referendum measures from appearing on the ballot at statewide primary elections, argues that it is in the public interest to continue to have ballot measures on the June ballot. The Broadcasters raise the following concerns with this bill: Ad dollars from advertising on ballot measures fund jobs, and allow broadcasters to perform public service work that communities rely on. Moving ballot measures to the November ballot could overwhelm voters, and leave little or no ad availabilities for local and state candidates. This bill could "consume advertising inventory leading up to the November election." The new "top two" primary system could have a dramatic effect on turnout, potentially undermining one SB 202 Page 9 of the arguments in favor of the bill. 1)Prior Version : The prior version of this bill, which was approved by this committee, proposed to increase the fee to submit a proposed state ballot initiative to the AG from $200 to $2,000. After this bill was amended on the floor, it subsequently was re-referred to this committee pursuant to Assembly Rule 77.2. REGISTERED SUPPORT / OPPOSITION : Support None on file. Opposition California Broadcasters Association Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094