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
(more)
SB 213 (Galgiani)
Page 2 of ?
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
SB 213 (Galgiani)
Page 3 of ?
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
SB 213 (Galgiani)
Page 4 of ?
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.
SB 213 (Galgiani)
Page 5 of ?
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
SB 213 (Galgiani)
Page 6 of ?
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
SB 213 (Galgiani)
Page 7 of ?
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,
SB 213 (Galgiani)
Page 8 of ?
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
SB 213 (Galgiani)
Page 9 of ?
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
SB 213 (Galgiani)
Page 10 of ?
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.
SB 213 (Galgiani)
Page 11 of ?
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."
SB 213 (Galgiani)
Page 12 of ?
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)
**************