BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Alex Padilla, Chair
BILL NO: AB 1311 HEARING DATE:8/20/14
AUTHOR: BRADFORD ANALYSIS BY: Darren Chesin
AMENDED: 8/18/14
FISCAL: NO
SUBJECT
Recall elections; conservatees: assistance with voter
registration
DESCRIPTION
New Provisions
Existing law permits prospective voters to receive assistance
from another person when completing an affidavit of
registration. If any person assists the affiant in completing
the affidavit, that person must sign and date the affidavit
below the signature of the affiant.
Existing law requires an affiant to certify the content of the
affidavit of voter registration as to its truth and correctness,
under penalty of perjury, with a signature and the date of
signing. If the affiant is unable to write he or she may
instead sign with a mark or cross or use a signature stamp, as
specified.
Existing law pursuant to the federal Voting Rights Act (42
U.S.C. 1973aa) provides that no citizen shall be denied, because
of his failure to comply with any test or device, the right to
vote in any Federal, State, or local election conducted in any
State or political subdivision of a State. The term "test or
device" includes, among other things, any requirement that a
person demonstrate the ability to read, write, understand, or
interpret any matter.
Existing law , pursuant to the California Constitution, provides
that the Legislature shall prohibit improper practices that
affect elections and shall provide for the disqualification of
electors while mentally incompetent or imprisoned or on parole
for the conviction of a felony.
Existing law regulates the terms and conditions of
conservatorships and creates various requirements for a court
and a court investigator with regard to informing a proposed
conservatee that he or she may be disqualified from voting if he
or she is not capable of completing an affidavit of voter
registration. If a court finds that a person is not capable of
completing an affidavit of voter registration, as specified,
existing law provides that the person shall be deemed mentally
incompetent and disqualified from voting.
This bill would prohibit a person, including a conservatee, from
being disqualified from voting on the basis that the person
signs the affidavit of voter registration with a mark or a
cross, signs the affidavit of voter registration with a
signature stamp, or completes the affidavit of voter
registration with the assistance of another person.
Provisions Already Approved by this Committee
Existing law provides that if a vacancy occurs in an office
after a recall petition is filed against the vacating officer,
the recall election shall proceed. The vacancy shall be filled
as provided by law, but any person appointed to fill the vacancy
shall hold office only until a successor is selected and the
successor qualifies for that office.
This bill establishes a process for filling a vacancy in an
office that occurs after a recall petition has been filed
against the vacating officer. Specifically, this bill :
Requires the elections official or officials to verify the
signatures on the recall petition that have been submitted as
of the date of the vacancy.
Provides that if a sufficient number of signatures have been
filed for the recall to qualify as of the date of the vacancy,
the recall election shall proceed.
Provides that if an insufficient number of signatures or no
signatures were filed for the recall to qualify as of the date
of the vacancy, the recall shall not proceed and the vacancy
shall be filled as provided by law.
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Provides that a person who is the subject of a recall petition
may not be appointed to fill the vacancy in the office that he
or she vacated nor shall that person be appointed to fill any
other vacancy in office on the same governing board for the
duration of the term of office of the seat that he or she
vacated.
Deletes the requirement that any person appointed to fill a
vacancy shall hold the office only until a successor is
selected.
BACKGROUND
Rights of Conservatees . In California, if an adult is unable to
manage his or her medical and personal decisions, a conservator
of the person may be appointed. While a conservator of the
person has charge of the care, custody and control of the
conservatee, that power is not absolute. According to a form
adopted by the Judicial Council entitled Notice of Conservatee's
Rights, when a person becomes a conservatee, he or she does not
necessarily lose the right to take part in important decisions
affecting his or her property and way of life. After
appointment of a conservator, the conservatee keeps specified
rights including the right to vote unless the court has limited
or taken that right away.
Voting Rights Act Complaint . In July of this year the
Disability and Abuse Project of Spectrum Institute filed a
formal complaint with the Department of Justice's Civil Rights
Division against the Los Angeles Superior Court regarding their
application of existing state law deeming conservatees
ineligible to register to vote if they are not capable of
completing an affidavit of voter registration. The complaint
asserts that this practice constitutes a violation of the
federal Voting Rights Act's prohibition on use of a test or
device as a prerequisite for voter registration. As of the date
of this analysis, the Department of Justice had yet to respond
to the complaint.
COMMENTS
1.According to the Author : Under California law, a person
cannot register to vote if they are found by a court to be
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mentally incompetent. Also under California law, any person
can apply to register to vote by having someone assist them in
filling out the form. Under certain circumstances, a person
can sign the form by using a mark or a signature stamp. Under
provisions of California's Probate Code, a person who may be
placed in a conservatorship can be disqualified from voting if
they are not capable of "completing an affidavit of voter
registration." The problem is under the Probate Code, a
proposed conservatee is not clearly given the right that is
afforded to every other California citizen - the right to have
someone assist them in filling out a voter registration
application and the right to sign that application using a
mark or signature stamp.
Questions have arisen of how current law would be interpreted
regarding the timing of a vacancy in an office subject to a
recall. Specifically, concerns have been raised over "musical
chairs" gamesmanship, where someone might resign to avoid a
recall moving forward then get appointed to another vacancy on
the same governing body. Current law provides that if an
elected official resigns after a recall petition is filed with
the county elections official, the entire recall process,
including the requirement that an election be held, must
proceed.
AB 1311 addresses this conflict by clarifying the process to be
followed when the elected official resigns after recall
petitions have been filed with a county elections office.
2.Previous Legislation . AB 2088 (Adams) of 2010, was
substantially similar to the recall provisions in this measure
except that AB 2088 would have clarified a conflict regarding
the number of signatures that need to be verified using a
random sampling technique when recall petitions are filed. AB
2088 was vetoed by Governor Schwarzenegger. In his veto
message Governor Schwarzenegger said that, "this bill would
limit an important power of direct democracy by limiting
voters' ability to recall an elected official and elect a
replacement. Unfortunately recall efforts can become punitive
rather than a constructive effort to replace an officeholder;
however, the recall process as a whole is an important
component of the people's right to directly change their
government. Under the provisions of this bill, an official
subject to a recall could resign and allow a successor to take
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their place. This limits the ability of the voters to select
the replacement through a recall election."
PRIOR ACTION
Assembly Elections and Redistricting Committee: 5-1
Assembly Floor: 57-14
Senate Elections and Constitutional Amendments 5-0
POSITIONS
Sponsor: Secretary of State
Support: The Arc and United Cerebral Palsy California
Collaboration
Oppose: None received
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