BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          SB 213 (Galgiani)
          As Introduced
          Hearing Date: April 16, 2013
          Fiscal: Yes
          Urgency: No
          RD
                    

                                        SUBJECT
                                           
                           Election Petitions: Circulators

                                      DESCRIPTION  

          This bill would amend various sections of the Elections Code to  
          remove a residency requirement for persons who wish to circulate  
          petitions in California.  In place of those requirements, this  
          bill would instead require that in order to circulate a petition  
          or nominating paper, the person must be at least 18 years of age  
          and either 1) be a resident of the state or 2) have filed with  
          the Secretary of State (SOS) an irrevocable consent to suits,  
          actions, and service of process in California.  The bill would  
          provide processes for the forwarding of any summons, process or  
          pleadings served on the SOS to the circulator, the effect of  
          that service in court, and the timeline by which a circulator  
          would have to respond.  

          This bill would also specify that the above does not limit the  
          right of a person to serve any summons, process, or pleadings  
          upon the circulator in another manner permitted by law.   
          Finally, the bill would make other non-substantive amendments.

                                      BACKGROUND  

          In 2008, the Ninth Circuit Court of Appeals, in the case of  
          Nader v. Brewer (1998) 531 F.3d 1028, stuck down an Arizona  
          statute that, among other things, required circulators of  
          petitions to be residents of Arizona.  

          The First Amendment, which applies to the states through the  
          Fourteenth Amendment, provides, in part, that Congress shall  
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          make no law abridging the freedom of speech or the right of the  
          people to assemble peaceably.  Political speech lies at the core  
          of that amendment.  Circulation of petitions for elections, as  
          noted by the Nader case, "is 'core political speech,' because it  
          involves interactive communication concerning political change,  
          and the First Amendment protection for such interaction is  
          therefore 'at its zenith.'"  (Nader, 531 F.3d at 1035, citing  
          Meyer v. Grant (1988) 486 U.S. 414, 422, 425.)  Accordingly,  
          under U.S. Supreme Court precedent, when a severely burdensome  
          election law is challenged, it is subject to strict scrutiny and  
          can only be upheld if the burden it imposes on the exercise of  
          these constitutional rights is sufficiently narrow to serve a  
          compelling state interest.  The Nader court held that a  
          residency requirement for election petition circulators is  
          severely burdensome and does not survive strict scrutiny  
          analysis, in violation of the First and Fourteenth Amendments.  

          Since the Nader decision, multiple California counties have  
          reportedly been sued for this state's residency requirement for  
          petition circulators.  In order to bring California into  
          compliance with that decision, this bill, sponsored by the  
          Secretary of State (SOS) would amend various sections of the  
          Elections Code to remove a residency requirement for persons who  
          wish to circulate petitions in California.  Essentially,  
          non-residents would no longer be barred from circulating  
          election petitions in this state for lack of residency.   
          Instead, the bill would require that in order to circulate a  
          petition or nominating paper, the person must be at least 18  
          years of age and either 1) be a resident of the state or 2) have  
          filed with the SOS an irrevocable consent to suits, actions, and  
          service of process in California, as specified.  

          This bill was heard by the Senate Elections & Constitutional  
          Amendments Committee on March 19, 2013 and passed out on a vote  
          of 4-0.

                                CHANGES TO EXISTING LAW
           
          1.    Existing law  provides that a person who is a voter or who  
            is qualified to register to vote in this state may circulate  
            an initiative or referendum petition in accordance with the  
            Elections Code. A person who is a voter may circulate a recall  
            petition in accordance with the Elections Code.  (Elec. Code  
            Sec. 102.)

             This bill  would amend the above provision to instead provide  
                                                                      



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            that a person shall not circulate a state or local initiative,  
            referendum, or recall petition or nominating paper unless the  
            person is 18 years of age or older and either a resident of  
            the state or a non-resident who has met the requirements  
            described below.  

             This bill  would provide that, before circulating a state or  
            local initiative, referendum, or recall petition or nominating  
            paper, a non-resident of this state shall file with the  
            Secretary of State (SOS) an irrevocable consent that suits and  
            actions arising out of or in connection with the petition or  
            nominating paper may be commenced against him or her in any  
            court of competent jurisdiction in this state by the service  
            on the SOS of any summons, process, or pleadings authorized by  
            the laws of the state.  The bill would require that this  
            consent stipulate that the service of summons, process, or  
            pleadings on the SOS shall be taken and held in all courts to  
            be as valid and binding as if due service had been made upon  
            the circulator personally in the state. 

             This bill  would provide that if the SOS is served with a  
            summons, process, or pleadings pursuant to the above, the SOS  
            shall immediately cause a copy of the documents served to be  
            forwarded by certified mail addressed to the circulator at the  
            circulator's last known address.  The bill would provide that  
            notwithstanding any other provision of law, the circulator  
            shall have not less than 40 days from the date of the mailing  
            by the SOS to answer the summons, process, or pleadings. 

             This bill  would provide that these provisions do not limit the  
            right of a person to serve any summons, process, or pleadings  
            upon the circulator in another manner permitted by law. 

          2.    Existing law  provides that wherever any petition or paper  
            is submitted to the elections official, each section of the  
            petition or paper shall have attached to it a declaration  
            signed by the circulator of the petition or paper, setting  
            forth, in the circulator's own hand, specified information,  
            including, among other things: 
                 the residence address of the circulator, giving street  
               and number, or if no street or number exists, adequate  
               designation of residence so that the location may be  
               readily ascertained; 
                 that the circulator circulated that section and  
               witnessed the appended signatures being written; and 
                 that according to the best information and belief of the  
                                                                      



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               circulator, each signature is the genuine signature of the  
               person whose name it purports to be.  (Elec. Code Sec.  
               104(a)-(b).)

             This bill  would additionally require that the above  
            declaration set forth: 
                 that the circulator is 18 years of age or older; and 
                 if the circulator is not a resident of the state, that  
               the circulator has irrevocably consented to suits, actions,  
               and service of process in the state, as specified. 
          
           3.    Existing law  , in relevant part, provides that each section  
            shall be prepared with the lines for signatures numbered, and  
            shall have attached the affidavit of the circulator who  
            obtained signatures to it, stating that all the signatures to  
            the attached section were made in his or her presence, and  
            that to the best of his or he knowledge and belief each  
            signature to the section is the genuine signature of the  
            person whose name it purports to be.  (Elec. Code Secs. 6106,  
            6363, 6584, 6784.)  

             This bill  would amend the above sections to make changes  
            conforming to the bill's requirement that the declaration  
            (discussed above) also set forth that the circulator is 18  
            years of age or older, and if the circulator is not a resident  
            of the state, that the circulator has irrevocably consented to  
            suits, actions, and service of process in the state, as  
            specified.

          4.    Existing law substantially specifies the form of various  
            nomination papers.  (Elec. Code Secs. 6108, 6365, 6386, 6387,  
            6786, 6787, 8041, 8409, 10226.) 

             This bill  would amend those forms to include statements under  
            the circulator's affidavit whereby the circulator would swear  
            or affirm he or she is at least 18 years of age, is either a  
            resident of California or have irrevocably consented to suits,  
            actions, and service of process in the state, as specified,  
            and his or her residence address, as specified.  
          
             This bill  would make other conforming changes throughout the  
            Elections Code to remove residency or registered voter  
            requirements from sections relating to the circulation of  
            petitions and include cross-references to the requirements of  
            this bill. 

                                                                      



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             This bill  would make other non-substantive amendments.  

                                        COMMENT
           
          1.  Stated need for the bill  
          
          According to the author:
          
            [Recent federal] case law (Nader v. Brewer) holds that ballot  
            petitions or candidate papers may be circulated by a person  
            regardless of whether he or she resides in the state or  
            jurisdiction where the petitions or papers must be circulated.  
             California state law is not in accordance with this federal  
            court decision.  Last year, 19 California counties were sued  
            because they enforced state laws preventing non-California  
            residents from circulating papers or petitions.  [ . . . ]
            
            Senate Bill 213 amends California law to comply with [Nader  
            and other] federal court decisions.  This bill authorizes a  
            person to circulate a state or local initiative, referendum,  
            recall petition or nominating paper even if they are not a  
            legal resident of California.  Also, under this bill,  
            out-of-state circulators would be required to file an  
            irrevocable consent that suits and actions may be filed  
            against them in California courts.  The Secretary of State  
            would be required to forward court documents by certified mail  
            addressed to the non-resident circulator at the circulator's  
            last known address.  

          The sponsor of this bill, Secretary of State (SOS), Debra Bowen,  
          adds in support, that "[t]his provision will enable California  
          to enforce its election laws in instances when the circulator  
          lives outside the state and would otherwise not be available for  
          service" and that the SOS is "sponsoring  SB 213 to spare local  
          election officials from unnecessary litigation."

          2.  First amendment rights of petition circulators  

          The First Amendment, which applies to the states under the due  
          process clause of the Fourteenth Amendment, provides in relevant  
          part that "Congress shall make no law . . . abridging the  
          freedom of speech . . . or the right of the people peaceably to  
          assemble . . . ."  (U.S. Const., 1st Amend.)  
          Under U.S. Supreme Court precedent, there is no litmus paper  
          test separating valid and invalid election law restrictions.   
          When an election law is challenged, its validity depends on the  
                                                                      



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          severity of the burden it imposes on the exercise of  
          constitutional rights and the strength of state interests that  
          it serves.  (Anderson v. Celebrezze (1983) 460 U.S. 780, 789.)   
          In other words, as clarified by Burdick v. Takushi (1992), "the  
          severity of the burden the election law imposes on the  
          plaintiff's rights dictates the level of scrutiny applied by the  
          court." (504 U.S. 428, 434.)  

          This bill would bring California into compliance with Nader v.  
          Brewer, a 2008 Ninth Circuit decision that struck down, under  
          the First and Fourteenth Amendments, an Arizona statute which,  
          similar to current California law, prohibited non-residents from  
          circulating election-related petitions.  (531 F.3d 1028.)  

             a.     Nader v. Brewer
             
            This bill would amend various sections of the Elections Code  
            to remove a residency requirement for persons who wish to  
            circulate petitions in California.  Essentially, non-residents  
            of California would no longer be barred from circulating  
            election petitions in this state.  In place of those  
            requirements, the bill would instead require that in order to  
            circulate a petition or nominating paper, the person must be  
            18 years of age and either 1) be a resident of the state or 2)  
            have filed with the Secretary of State (SOS) an irrevocable  
            consent to suits, actions, and service of process in  
            California as specified.  

            In Nader v. Brewer (2008), the Ninth Circuit reviewed, in  
            relevant part, Arizona laws that provided "[o]nly persons  
            qualified to register to vote in Arizona can circulate  
            petitions.  In order to be qualified to register to vote, a  
            person must, among other things, be a resident of Arizona and  
            have been a resident at least [29] days before the election.   
            Under this statutory limitation, all non-residents of Arizona,  
            including [Ralph] Nader himself, are prohibited from  
            circulating petitions in support of Nader's candidacy." (531  
            F.3d 1028, 1031.)  

            The plaintiffs in Nader alleged that the residency requirement  
            (as well as an early filing deadline) burdened the rights of  
            expressive association and political speech of not just  
            political candidates, but potential circulators and voters in  
            violation of the First and Fourteenth Amendments.  The State  
            of Arizona argued that the restrictions did not impose a  
            severe burden on the plaintiffs' rights and that even if the  
                                                                      



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            burden was severe, they should survive strict scrutiny as "the  
            residency requirement was narrowly tailored to further the  
            state interest in preventing fraud in the election process, in  
            order to ensure that circulators could be located and  
            subpoenaed in time for petition challenges."  (Id. at 1032.)  

            Based on the standard articulated by the Supreme Court in  
            Burdick v. Takushi (1992) 504 U.S. 428, 434, where the Supreme  
            Court held that an election regulation that imposes a severe  
            burden is subject to strict scrutiny and will be upheld only  
            if it is narrowly tailored to serve a compelling state  
            interest, the Ninth Circuit ruled in favor of the plaintiffs,  
            holding that Arizona's residency requirement for petition  
            circulators was severely burdensome and did not pass strict  
            scrutiny in light of the purported state interests.  

            In its reasoning, the Ninth Circuit relied in part on the  
            Supreme Court case of Buckley v. Am. Constitutional Law  
            Found., Inc. (1999) 525 U.S. 182, the leading case on  
            qualifications for petition circulators which involved a  
            challenge to a Colorado restriction that required circulators  
            to actually be registered to vote in the state, wherein, the  
            Court reiterated that "petition circulation . . . is 'core  
            political speech,' because it involves 'interactive  
            communication concerning political change,' and that the First  
            Amendment protection for such interaction is therefore 'at its  
            zenith'." (Nader, 531 F.3d at 1035, citing Buckley 525 U.S. at  
            186-187, quoting Meyer v. Grant (1988) 486 U.S. 414, 422,  
            425.)  The Buckley Court struck down Colorado's registration  
            requirement for imposing a severe burden on the speech rights  
            of individuals involved with the initiative process because it  
            significantly decreased the pool of potential circulators  
            which in turn limited the size of the audience that could hear  
            the initiative proponents' message, thereby rejecting the  
            state argument that the burden was necessary to ensure  
            circulators were subject to the state's subpoena power.  

            Finding that strict scrutiny is the appropriate standard in  
            the Nader case because the government was restricting the  
            overall quantum of speech available to the election or voting  
            process, the Ninth Circuit held that the state did not meet  
            its burden of showing that this residency requirement is  
            narrowly tailored to further the state's compelling interest  
            in preventing fraud. The court noted the State of Arizona did  
            not present any evidence demonstrating that the state's  
            history of fraud was related to non-resident circulators,  
                                                                      



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            which might have justified regulating non-residents  
            differently from residents.  

            It should also be noted that in response to the State of  
            Arizona's contention that the restriction is narrowly tailored  
            to ensure that circulators are subject to the state's subpoena  
            power and can be located within the time period allotted for  
            petition challenges, the plaintiffs in Nader argued that  
            requiring circulators to submit to jurisdiction by agreement  
            would achieve the same and would be more narrowly tailored to  
            further the state's interest in preventing fraud.  (Id. at  
            1037.)   This bill would take a similar approach to addressing  
            California's interest in protecting the integrity of its  
            electoral process. 

              b.   This bill serves a compelling state interest of  
               protecting the integrity of California's electoral process  
               without unduly burdening speech  
                
            Whereas California's current residency requirements are  
            presumably severely burdensome and unconstitutional under the  
            precedent of Nader v. Brewer (discussed on Comment 2a above),  
            this bill would arguably fair better under a First Amendment  
            analysis.   In contrast to the state's current residency  
            requirement, this bill does not appear to impose a significant  
            burden on the speech and association rights of a non-resident  
            circulator.  The bill would merely require that a non-resident  
            circulator consent to accepting service of any summons,  
            process or pleadings by way of service on the Secretary of  
            State (SOS), as specified, and provide the state with an  
            address at which he or she could be forwarded a copy of the  
            papers served on the SOS.  Accordingly, it seems unlikely that  
            the bill would warrant a strict scrutiny analysis in light of  
            the Supreme Court precedent described above.  

            However, even if the bill were to be subject to the strict  
            scrutiny standard, the state arguably has a compelling  
            interest to protect the integrity of its electoral system and  
            help reduce the possibility that any circulators who  
            participated in that system could evade service of process and  
            thwart the ability of a Californian to seek recourse under  
            California election law for the circulator's actions.  Under  
            state law, a party's lawsuit could be dismissed on the basis  
            of inadequate or improper service of process.  Given that  
            non-resident circulators pose a particular challenge in this  
            regard, as a matter of public policy, it appears reasonable to  
                                                                      



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            require that the non-resident circulator provide the state  
            with an address of record and consent to process by way of the  
            SOS.  In other words, the requirements imposed by this bill  
            appear to be sufficiently narrowly-tailored to furthering the  
            state's compelling interest in preserving the integrity of  
            California's electoral system by ensuring that persons who  
            voluntarily involve themselves in the electoral system can be  
            located, served, and answer to allegations of misconduct,  
            fraud, or other unlawful conduct in a suit arising out of or  
            in connection with the petition(s) or nominating paper(s) he  
            or she specifically circulated.  

          3.    This bill ensures process can be served on a person who  
            circulates election related    petitions in California 
                
          This bill seeks to ensure that a non-resident circulator  
          receives notice of a summons, process, or pleadings, and the  
          opportunity to respond, as it is in their interest to do when  
          named in a lawsuit.  The bill also seeks to ensure that a  
          plaintiff can serve process on a non-resident circulator who  
          might otherwise be difficult to locate. 

          Specifically, this bill would require that a non-resident  
          circulator file with the SOS an irrevocable consent that suits  
          or actions arising out of or in connection with the petition or  
          nominating paper may be commenced against him or her in any  
          court of competent jurisdiction in this state by service on the  
          SOS of any summons, process, or pleadings authorized by the laws  
          of the state.  

          Upon receipt of any such documents, the bill would require the  
          SOS to cause copy of the documents served to be forwarded by  
          certified mail addressed to the circulator at the circulator's  
          last known address.  At that point, the circulator would be  
          provided with not less than 40 days (from the time of the  
          mailing by the SOS) to answer the summons, process, or  
          pleadings.  California courts would be required to hold any  
          service of summons upon the SOS as required above to be valid  
          and binding, as if due service had been made on the circulator  
          personally in the state.  Thus, regardless of whether or not the  
          non-resident circulator actually responds in the allotted time  
          period, if he or she has provided irrevocable consent to  
          accepting service in this manner, service would be complete once  
          the documents have been properly served on the SOS.  

          These provisions will arguably eliminate the ability of a  
                                                                      



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          non-resident circulator to evade service of process and thereby  
          thwart the ability of Californians to bring a valid cause of  
          action against the non-resident, relating to the circulated  
          petition.  As noted by the sponsor, SOS, "[t]his provision will  
          enable California to enforce its election laws in instances when  
                                                                                      the circulator lives outside the state and would otherwise not  
          be available for service."

          The bill would, however, also specify that the above does not  
          limit the right of a person to serve any summons, process, or  
          pleadings upon the circulator in another manner permitted by  
          law.  Thus, service could feasibly still be served directly on  
          the non-resident circulator as otherwise permitted under law.   

          4.    Fraudulent addresses 
                
          By focusing on the issue of how to address any resulting harm  
          from a non-resident's actual conduct, instead of outright  
          prohibiting participation by non-residents, this bill would, in  
          a much narrower fashion than the current residency requirements,  
          address concerns associated with having non-residents  
          participating in and directly impacting the electoral process in  
          the State of California.  The bill achieves this goal by way of  
          ensuring that, in the event that a case arises out of or  
          relating to a petition circulated by a non-resident, service can  
          be validly made upon the SOS in lieu of the non-resident  
          circulator, at which point the SOS would forward a copy of the  
          summons, process or pleadings to the address of record for the  
          circulator.   

          The question may arise as to what happens if the non-resident  
          circulator provides a fraudulent address.  In the event that  
          address turns out to be fraudulent, the author states as  
          follows:  

            If out-of-state circulators give a false address or fail to  
            keep their address updated with the Secretary of State, the  
            irrevocable consent contained in SB 213 says that they are to  
            be considered "served process" under California law [once]  
            court documents are delivered to the Secretary of State for  
            forwarding. This means that process is served on those  
            circulators whether they receive the court documents or not.  
            Therefore, a court or suing party can subpoena them to appear,  
            and if they do not appear, they risk being held in contempt of  
            court.  A judge also has the option to issue a "bench warrant"  
            for their arrest for failing to appear in court.  
                                                                      



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            By not keeping their address up to date or by providing a  
            false address, out-of-state circulators would be exposed to  
            legal jeopardy such that they could be jailed if ever stopped  
            by police in California. Pursuant to Elections Code 18604, the  
            court can prohibit a person convicted of improper signature  
            gathering tactics from receiving money or other valuable  
            consideration for gathering signatures on an initiative,  
            referendum, or recall petition.

            [Moreover, the] problem of circulators providing false,  
            incorrect, or temporary addresses on the documents they are  
            required to file under penalty of perjury is sometimes an  
            issue now with in-state circulators under current law.  
            Permitting out-of-state circulators, as mandated by the  
            courts, shouldn't exacerbate the problem.

          Given that the bill requires service to be deemed valid and  
          binding in court as long as both (1) the non-resident circulator  
          has provided irrevocable consent and (2) service is properly  
          made upon the SOS, a valid address is crucial to the  
          circulator's ability to actually receive a copy of the served  
          documents and, therefore, his or her opportunity to respond.  In  
          other words, a fraudulent address would not render the service  
          improper; it would merely affect the ability of the circulator  
          to answer the documents and present a defense.  (See Comment 3  
          above.)  Accordingly, Committee staff also notes that it would  
          arguably be in the circulator's self-interest to provide a valid  
          address to the SOS.     

          5.    Pending litigation against California counties  

          The author notes that "[i]n the latter of 2012, multiple  
          California counties were sued because their county clerks were  
          allegedly enforcing state laws that prevent non-Californians  
          from circulating initiatives and/or nominating papers.  The  
          plaintiff in [these cases] has filed action for declaratory and  
          injunctive relief based on allegations that Elections Code  
          Sections 102, 104, and 9022 are unconstitutional under the First  
          and Fourteenth Amendments to the United States Constitution 'to  
          the extent the statutes require those who circulate nominating  
          petitions on behalf of political candidates to be qualified to  
          vote in the State of California.'  The hearing on the  
          plaintiff's motion for judgments on the pleadings is scheduled  
          to commence on June 3, 2013." 

                                                                      



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          This committee has historically expressed concern about  
          approving bills that would affect pending litigation.  That  
          concern is based on the policy that the Legislature should not  
          decide the outcome of a specific case in favor of one party or  
          another, particularly where the effect of the legislation would  
          be to decide the case in favor of a defendant who, absent the  
          passage of the legislation, would otherwise be subject to a  
          substantial monetary judgment in favor of the plaintiff. 

          In this case, the bill is prospective and would conform state  
          law to federal case law.  Although that conformance could render  
          the pending cases moot, it would not retroactively change the  
          law that was in place at the time of the suits.  From a policy  
          standpoint it is arguably appropriate to conform state law to  
          constitutional requirements, even if doing so would render some  
          cases moot.  Failure to make such changes would essentially  
          allow potentially unconstitutional provisions to stand. 
           Support  :  California Association of Clerks and Election  
          Officials; Rural County Representatives of California

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Secretary of State, Debra Bowen

           Related Pending Legislation  :  AB 857 (Fong, 2013) would make  
          various changes to the Election Code relating to circulators of  
          initiative petitions. 

           Prior Legislation  :  None Known 

           Prior Vote  :  Senate Elections & Constitutional Amendments  
          Committee (Ayes 4, Noes 0)

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