BILL ANALYSIS Ó
AB 2093
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Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2093 (Grove) - As Amended: March 28, 2014
SUBJECT : Petitions: filings.
SUMMARY : Modifies statewide initiative and referendum petition
filing deadlines. Specifically, this bill :
1)Permits a statewide initiative or referendum petition, if the
last day to file a petition is a holiday, as defined by
current law, to be filed with the county elections official on
the next business day. Prohibits a petition from being
circulated after the petition deadline and provides that a
signature obtained after that deadline shall be invalid.
2)Makes the following Legislative findings and declarations:
a) Under the California Constitution, an initiative or
referendum may be proposed by presenting to the Secretary
of State (SOS) a petition containing a specified number of
signatures. The California Constitution requires that a
petition for a referendum measure be submitted within 90
days of the date of enactment of the statute that is the
subject of the referendum, and state law requires that a
petition for an initiative measure be submitted within 150
days of the date of the circulating title and summary
furnished by the Attorney General.
b) In some instances, the final day to submit an initiative
or referendum petition falls on a holiday, when the offices
of state and county elections officials are closed. In
those circumstances, the proponents of an initiative or
referendum measure are faced with the choice of either
submitting the petition prior to the holiday, in which case
the period to gather signatures would be reduced, or
submitting the petition after the holiday, in which case
the proponents would risk rejection of the petition as
untimely.
c) While the California Constitution specifies a period of
90 days to gather signatures for a referendum measure, it
gives no guidance as to how to construe the 90-day period
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in those instances in which the final day falls on a
holiday.
d) The courts of this state have long held that the
initiative and the referendum are sacred rights of the
people and provisions of law shall be liberally construed
to give full effect to the powers of initiative and
referendum.
e) The framers of the California Constitution did not
intend that the powers of initiative or referendum should
be frustrated by the mere happenstance that the final day
to submit a petition falls on a holiday.
f) It is a general and well-accepted rule of law that, when
the last day to perform an act falls on a holiday, the time
in which to perform that act is extended to the next
business day.
g) It is the intent of the Legislature in enacting this act
to preserve the people's right of initiative and referendum
by clarifying that, in those instances in which the final
day to submit a petition falls on a holiday, the proponents
of the initiative or referendum measure may submit the
petition on the next business day following the holiday.
EXISTING LAW :
1)Provides that the initiative is the power of the electors to
propose statutes and amendments to the California Constitution
and to adopt or reject them.
2)Provides that a referendum is the power of the electors to
approve or reject statutes except urgency statutes, statutes
calling elections, and statutes providing for tax levies or
appropriations for usual current expenses of the State.
3)Requires a petition for a proposed statewide initiative to be
filed with the county elections official not later than 150
days from the official summary date. Prohibits a county
elections official from accepting a petition for the proposed
initiative measure after that period.
4)Requires a petition for a proposed statewide referendum to be
filed with the county elections official not later than 90
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days from the date of the enactment of the bill. Prohibits a
county elections official from accepting a petition for the
proposed referendum after that period.
5)Prohibits a petition for a proposed initiative or referendum
from being circulated for signatures prior to the official
summary date.
6)Requires the Legislature to provide the manner in which
petitions must be circulated, presented, and certified, and
measures submitted to the electors.
7)Permits an act to be performed upon the next business day if
the last day for the performance of any act provided for or
required by the Elections Code is a holiday, as defined.
FISCAL EFFECT : Keyed non-fiscal by Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
The courts of this state have long held that the initiative
and the referendum are sacred rights of the people.
Most recently, on January 3 of this year, a Superior Court
Judge ruled in Gleason v. Bowen that the Secretary of State
violated California law by refusing to count petition
signatures for a referendum filed in two counties which had
refused delivery of petitions or were closed on the last
business day before the 90-day filing deadline. The court
ruled that by attempting to deliver petitions to county
registrars within the 90 days, supporters had substantially
complied with their legal requirements, and that the real
deadline in this particular case should have been the
following Tuesday due to the intervening holiday weekend.
In his ruling, the Judge cited a 1915 decision by the state
Supreme Court which stated that referendum power "should be
liberally construed and should not be interfered with by
the courts except upon a clear showing that the law is
being violated." (Laam v. McLaren). The Judge further
ruled that he "sees no basis to effectively diminish the
people's referendum power here by giving Petitioner only 88
days to collect signatures and submit her petition to
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elections officials."
An initiative or referendum effort should not be hindered
and reduced merely because the final day to submit a
petition happens to land on a holiday.
By passing AB 2093, this point will be expressed clearly in
statute, reducing the possibility of additional confusion
and disagreement over initiative and referendum petition
dates.
2)Initiative & Referendum Procedures : Article II, Section 8 of
the California Constitution provides that an initiative is the
power of the electors to propose statutes and amendments to
the California Constitution and to adopt or reject them. In
addition, Article II, Section 9 of the California Constitution
provides that a referendum is the power of the electors to
approve or reject statutes except urgency statutes, statutes
calling elections, and statutes providing for tax levies or
appropriations for usual current expenses of the State.
Current state law requires a petition for a proposed statewide
initiative to be filed with the county elections official not
later than 150 days from the official summary date, and
prohibits a county elections official from accepting a
petition for the proposed initiative measure after that
period. Article II, Section 9 of the California Constitution
requires a petition for a proposed statewide referendum to be
filed with the county elections official not later than 90
days from the date of the enactment of the bill, and state law
prohibits a county elections official from accepting a
petition for the proposed referendum after that period.
3)Referendum History : According to the SOS's office, referenda
are fairly rare in comparison to initiative measures. Between
1912 and February 2014, a total of 79 referenda were titled
and summarized for circulation, a total of 30 referenda
(37.97%) failed to qualify for the ballot, and a total of 48
referenda (62.03%) qualified for the ballot. Of the 48
referenda that qualified for the ballot and have been voted
on, 20 referenda (41.67%) were approved by the voters and a
total of 28 referenda (58.33%) were rejected by the voters.
4)Constitutionality : In 2013, the Legislature passed and the
Governor signed AB 1266 (Ammiano), Chapter 85, Statutes of
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2013, which amended the Education Code to allow pupils to
participate in school activities and use facilities based on
gender identity. Petitioners sought to qualify a referendum
asking voters to reject AB 1266 and the petitioner filed a
request for title and summary for a referendum of the statute.
The title and summary was issued on August 26, 2013, along
with the circulating and filing schedule for the referendum.
Article II, section 9 of the California Constitution requires
a petition for a referendum to be presented to the SOS within
90 days after the enactment date of the statute. State law
implements this constitutional provision and requires a
petition for a proposed referendum measure to be filed with
the county elections official not later than 90 days from the
date the legislative bill was chaptered by the SOS. As a
result, the referendum filing scheduled stated that the last
day to file referendum petitions with the county elections
officials was Sunday, November 10, 2013. However, the 90 day
requirement was complicated in this instance because the 90th
day fell on a Sunday and the following day, November 11th, was
a holiday (Veteran's Day), when counties offices were not
open. Due to the holiday and the closure of county offices,
referendum petitions from Mono and Tulare counties were not
submitted within the 90 day deadline. Consequently, the SOS
refused to accept petitions submitted to Mono and Tulare
Counties on the grounds that the petitioner's filings were
untimely and submitted after the November 10th deadline.
Earlier this year, a lawsuit was filed against the SOS
challenging the rejected referendum petition signatures and
requesting the court to require the SOS to accept, file, and
process, as timely, the petitions delivered to Mono and Tulare
counties. In the lawsuit, the petitioner asserted that
Elections Code Section 15 permits any act, if the last day for
the performance of any act provided for or required by the
Elections Code is a holiday, to be performed upon the next
business day. As a result, the petitioner argued that under
the above rule the petitioner had until Tuesday, November 12th
to file her petitions with the county election officials and
that Tulare and Mono counties had a ministerial duty, under
the California Constitution, to accept the petition materials
up to, and until the expiration of the 90 day deadline. In
addition, the petitioner argued that the doctrine of
"substantial compliance" applies to the constitutional
requirements pertaining to the referendum process. The
petitioner further argued that the petitioner substantially
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complied with the 90 day filing limit so that her failure to
actually file the Mono and Tulare county petitions within that
time limit should be forgiven and if there was a departure
from the constitutional requirements it was minor and did not
undermine or frustrate the basic purposes by the statutory
requirements in ensuring the integrity of the initiative or
referendum process.
The Superior Court ruled in favor of the petitioner's request
for a Writ of Mandate directing the SOS to accept, file, and
process as timely the petitions delivered by the petitioner to
Mono and Tulare Counties. In the ruling, the judge cited a
1915 decision by the state Supreme Court which stated that
referendum power "should be liberally constructed and should
not be interfered with by the courts except upon clear showing
that the law is being violated." (Laam v. McLaren (1915) 28
Cal.App.632, 638.) The SOS has since appealed the court's
ruling and this issue is still pending in the courts.
In an effort to bring clarity to state law, this bill permits a
statewide initiative or referendum petition, if the last day
to file a petition is a holiday, to be filed with the county
elections official on the next business day. Additionally,
this bill prohibits a petition from being circulated after the
petition deadline, in accordance with existing law, and
provides that a signature obtained after that deadline shall
be invalid. According to the author, an initiative or
referendum effort should not be hindered and reduced because
the final day to submit a petition happens to land on a
holiday. AB 2093 will reduce the possibility for additional
confusion and disagreement over initiative and referendum
petition dates.
While the author's effort to reduce confusion and disagreement
over initiative and referendum petitions deadlines is
laudable, the committee may wish to consider whether it is
prudent to support a policy change that is currently pending
in the courts. Because the SOS has appealed the ruling, it
may be prudent to wait for the courts to rule on this policy
issue before making changes to our laws.
5)Secretary of State's Current Initiative and Referendum
Practices : Statewide initiatives and referenda have
distinctly different petition filing deadline requirements.
Current state law requires a petition for a proposed statewide
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initiative to be filed with the county elections official not
later than 150 days from the official summary date, and
prohibits a county elections official from accepting a
petition for the proposed initiative measure after that
period. Additionally, Elections Code Section 15 permits an
act to be performed upon the next business day if the last day
for the performance of any act provided for or required by the
Elections Code is a holiday, as defined. As a result, it has
been the longstanding practice that when a deadline for a
proposed initiative measure falls on a weekend or holiday, the
deadline rolls forward to the next business day. However,
this only applies to dates set in statute in the Elections
Code, not to deadline dates set forth in the California
Constitution.
Because the deadlines for statewide referendum are in the
California Constitution, it is unclear whether the
Legislature, by state statute, can extend deadlines
established by the Constitution. As a result, it has been the
longstanding practice for the SOS, should a filing deadline
fall on a weekend, to request county registrars to briefly
open their offices on the weekends. According to SOS's court
filings, at the request of the petitioner, the SOS coordinated
a conference call with 17 county registrars requesting them to
briefly open on Sunday for the filing of the referendum
petitions. The petitioner did not request Sunday filings for
Mono and Tulare counties. By not making the same request of
Mono and Tulare counties, the petitioner assumed the risk that
petitions would not be timely filed in those counties.
6)Enforcement : This bill provides that if an initiative or
referendum filing deadline falls on a holiday, the deadline is
extended to the next business. In addition, this bill
prohibits a petition from being circulated after the petition
deadline and provides that a signature obtained after that
deadline shall be invalid. While the author's intent to
prevent proponents from collecting signatures after the
deadline is laudable, the committee may wish to consider how
these provisions will be enforced. When a voter signs a
petition, current law requires each signer to personally affix
his or her signature, printed name, residence address, and
city on the petition. Current law does not require the signer
to provide the date that he or she signed the petition.
Moreover, existing law requires a petition circulator to
provide the dates between which all the signatures on a
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petition were obtained. It is unclear how this bill will be
enforced when there is no way to know if an individual
signature is collected after the deadline because signatures
are not required to be dated.
On the other hand, it has been the longstanding practice that
when a deadline for a proposed initiative measure falls on a
weekend or holiday, the deadline rolls forward to the next
business day. When this occurs, initiative proponents are
given an extra day or so to circulate and submit the petitions
to the county elections official. If this bill is approved by
this committee, the committee may wish to amend the bill to
apply the same standard to referenda and amend the bill as
follows:
On page 3, in lines 22 to 25, delete the following:
However, a petition filed pursuant to this subdivision shall not
be circulated after the petition filing deadline specified in
subdivision (b) or (c), and a signature obtained after the
deadline shall not be valid.
7)Technical Amendment : As mentioned above, there is pending
litigation dealing with the issues raised by this bill. In
addition, there is another lawsuit, Pacific Justice Institute
v Bowen (2014), pending in the court that argues that
referendum petitions signatures were improperly invalidated.
In order to ensure this bill does not affect the ongoing
litigation, the committee may wish to amend the bill to
specify that it shall not be construed to affect the ongoing
litigation.
8)Arguments in Support : The Howard Jarvis Taxpayers Association
writes in support:
This bill comes in response to problems that occurred
during the signature gathering process for the so-called
"bathroom bill" referendum earlier this year. While
[Howard Jarvis Taxpayers Association] took no formal
position on either the legislative bill or subsequent
referendum, we believe the desire of voters to engage in
the initiative or referendum process should not be hindered
because county elections offices are not open, or refuse to
accept, valid petition signatures on the day they are
submitted.
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REGISTERED SUPPORT / OPPOSITION :
Support
Howard Jarvis Taxpayers Association
Opposition
None on file.
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094