BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 202
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          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 








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               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:








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               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 








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               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 








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            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 








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            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:








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               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 








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            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 








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                  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