BILL ANALYSIS �
AB 141
Page 1
Date of Hearing: May 7, 2013
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 141 (Gorell) - As Introduced: January 17, 2013
SUBJECT : Elections: write-in candidates.
SUMMARY : Requires a write-in candidate for a voter-nominated
office, as defined, to receive a specified number of votes at
the primary election in order for his or her name to appear on
the ballot at the general election. Specifically, this bill
prohibits a write-in candidate at a primary election who is one
of the two candidates who received the highest number of votes
cast for that office from having his or her name appear on the
ballot at the general election, unless the candidate received
votes equal in number to at least one percent of all votes cast
for that office at the last preceding general election at which
the office was filled, provided that the election is for one of
the following offices:
1)Governor;
2)Lieutenant Governor;
3)Secretary of State;
4)Controller;
5)Treasurer;
6)Attorney General;
7)Insurance Commissioner;
8)Member of the Board of Equalization;
9)United States Senator;
10)Member of the United States House of Representatives;
11)State Senator; or,
12)Member of the Assembly.
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EXISTING LAW :
1)Requires a voter-nomination primary election to be conducted
to select the candidates for the following offices:
a) Governor;
b) Lieutenant Governor;
c) Secretary of State;
d) Controller;
e) Treasurer;
f) Attorney General;
g) Insurance Commissioner;
h) Member of the Board of Equalization;
i) United States Senator;
j) Member of the United States House of Representatives;
aa) State Senator; and,
bb) Member of the Assembly.
2)Provides that the candidates who are the top two vote-getters
in the voter-nomination primary election shall compete in the
ensuing general election.
3)Provides that a write-in candidate for partisan office at the
primary election shall not have his or her name appear on the
general election ballot unless the write-in candidate received
votes equal in number to at least one percent of all votes
cast for the office at the last preceding general election at
which the office was filled.
FISCAL EFFECT : This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS :
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1)Purpose of the Bill : According to the author:
In 2010, public approval of Proposition 14 changed the
way Californians choose their candidates for elected
office. The new "Top Two" general election format was
designed so that the two candidates who received the
most votes in the state's primary election would face
each other in a November general election, regardless
of their own party registration. The language
necessary to maintain a minimum threshold for write-in
votes was not included in Prop 14, unintentionally
abandoning the longstanding requirement that write-in
candidates must receive at least 1% of all votes cast
to advance to a general election. AB 141 corrects
this oversight by reestablishing that 1% minimum.
2)Top Two Primary and Previous Legislation : 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.
3)2012 Elections and Write-In Candidates : The 2012 elections
marked the first time that the top two primary election system
was used at a regularly scheduled election in California. In
the June 2012 primary, six write-in candidates finished as one
of the top two candidates in the primary election for the
offices that they sought, and accordingly moved on to the
general election ballot. In each case, the write-in
candidates who moved on to the general election were running
for an office where only one candidate was listed on the
ballot at the primary election. Those write-in candidates, all
of whom received less than two percent of the vote in the
primary election, received between 13 and 36 percent of the
vote at the ensuing general election.
None of those six candidates received a number of write-in votes
equal to at least one percent of all the votes cast for the
office at the last preceding general election at which the
office was filled. As such, had this bill been in effect for
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the 2012 primary elections (and assuming that the number of
votes for each of these write-in candidates did not change),
none of these six write in candidates would have moved on to
the general election ballot.
4)Limited Impact of a Write-In Threshold in a Top Two System :
Prior to the adoption of the top two primary system,
California had a semi-closed primary election system in which
each political party held a primary election to choose its
nominee who would appear on the general election ballot.
Generally, the candidate who received the most votes in a
party's primary election would appear on the general election
ballot. In the case of a write-in candidate, however, that
candidate not only had to receive the most votes of all the
candidates in the party's primary election, but also had to
receive a number of write-in votes equal to at least one
percent of all the votes cast for the office at the last
preceding general election at which the office was filled in
order to appear as that party's nominee on the general
election ballot. This "write-in threshold" was designed, in
part, to prevent a write-in candidate from becoming a party's
nominee with a very small number of votes in a situation where
a political party did not have any candidates listed on the
ballot for an office at the primary election.
Under California's semi-closed primary election system, the
write-in threshold played a significant role in regulating the
candidates that appeared on the general election ballot.
That's because there were a large number of candidate slots on
the general election ballot that could be filled. Under the
semi-closed primary, each qualified political party was
entitled to have its nominee appear on the general election
ballot. At the time of the 2010 election-the last regularly
scheduled election conducted under the semi-closed primary
system-there were six qualified political parties, and there
were 153 US House of Representatives and state Legislative
seats on the ballot. Since each of those political parties
was entitled to have its nominee appear on the general
election ballot, there were 918 candidate slots to be filled
on the general election ballot for those offices (153 offices
times six qualified political parties), not counting any
Independent candidates who qualified to appear on the ballot.
However, it was relatively common for many of those candidate
slots to go unfilled. In fact, of these 918 candidate slots,
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only 375 were filled at the 2010 general election. The other
543 slots were unfilled either because a political party did
not have any candidates for a seat, or because the only
candidates that a political party had for a seat were write-in
candidates who failed to meet the write-in threshold. If
there had been no write-in threshold, it is likely that there
would have been many more write-in candidates, and it is
likely that many of those 543 slots would have been filled.
In effect, the write-in threshold may have served to prevent
hundreds of additional candidates from appearing on the
general election ballot.
Under the top two primary system, however, the number of
candidate slots to be filled on the general election ballot
has been reduced significantly, and most of those slots are
likely to be filled by candidates who appear on the primary
election ballot. That's because there are only two candidate
slots on the general election ballot for each office (except
in the rare case where there is a tie at the primary
election), and at least two candidates have appeared on the
ballot at the primary election for state and federal offices
more than 95 percent of the time in the last decade. As a
result, making the write-in threshold applicable under the top
two system is unlikely to affect more than a few write-in
candidates at any election. In fact, as noted above, the
write-in threshold proposed by this bill would have kept just
six candidates off the ballot at the 2012 general election.
In light of this information, and given the limited impact that
this bill is likely to have, the committee may wish to
consider whether reinstating the write-in threshold is
advisable.
Additionally, it was the intent of the voters in approving
Proposition 14 that the two candidates who received the most
votes in the primary election would advance to the general
election. The committee may wish to consider whether this
bill is consistent with the expressed will of the voters.
5)Disparate Treatment of Write-In Candidates : While the
write-in threshold proposed by this bill could serve to help
ensure that write-in candidates at a primary election must
have a modicum of support in order to advance to the general
election, no such requirement for a minimum number of votes
would apply to candidates who appear on the primary election
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ballot. As a result, a candidate whose name appeared on the
primary election ballot would be eligible to have his or her
name appear on the general election ballot even if he or she
only received one vote, as long as that candidate was one of
the top two vote getters in the primary election. On the
other hand, a write-in candidate could receive thousands of
votes and finish with the second most votes in the primary
election, only to fall short of the requirements of this bill,
and thus would not be able to have his or her name appear on
the general election ballot.
In fact, it is possible (though unlikely) that under this bill,
a candidate who was not among the top two vote getters in the
primary election could advance to the general election instead
of a candidate (or candidates) who received a larger number of
votes in the primary election. For instance, in a race where
two candidates' names appeared on the primary election ballot,
and where there was one write-in candidate who finished second
in the primary election, the third placed candidate in the
primary election could advance to the general election if the
write-in candidate did not meet the write-in threshold under
the provisions of this bill.
The committee may wish to consider whether it is equitable and
appropriate to treat write-in candidates differently in this
respect than candidates whose names appear on the primary
election ballot.
6)Companion Measure and Suggested Amendment : ACA 9 (Gorell),
which is also being heard in this committee today, is a
companion measure to this bill that would make necessary
changes to the state constitution to prohibit a write-in
candidate at the primary election for a voter-nominated office
from appearing on the general election ballot unless that
candidate received a specified number of votes. ACA 9 must be
approved by the voters in order to take effect. Because the
California Constitution provides that the candidates who are
the top two vote-getters at a voter-nominated primary election
for a congressional or state elective office shall compete in
the ensuing general election, it appears that this bill cannot
become effective unless and until that constitutional
provision is amended. In light of this fact, and in light of
the author's companion measure that is being heard in this
committee today, if it is the committee's desire to approve
this bill, committee staff recommends that this bill be
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amended so that its provisions will become effective only if
ACA 9 is approved by the voters.
7)Related Legislation : SCA 12 (Lara) and SB 712 (Lara), which
are pending in the Senate Elections & Constitutional
Amendments Committee, are companion measures that are
substantially similar to this bill and ACA 9.
SCA 14 (Anderson) and SB 148 (Anderson), which are pending in
the Senate Elections & Constitutional Amendments Committee,
are companion measures that would provide that, if a candidate
for State Senator or Member of the Assembly receives at least
a majority of the votes cast for the office in a
voter-nominated primary election, the candidate would be
declared elected, and no general election would be held for
that office.
AB 1075 (Olsen) and ACA 10 (Olsen), which are pending in this
committee, are companion measures that would provide that, if
a candidate for a voter-nominated office receives at least 60
percent of the votes cast for the office in a voter-nominated
primary election, the candidate would be declared elected, and
no general election would be held for that office. AB 1075
and ACA 10 failed passage in this committee on April 23, 2013,
by a 2-4 vote, and were granted reconsideration.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Clerks and Election Officials
Contra Costa County Board of Supervisors
Opposition
Libertarian Party of California
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094