BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 213
                                                                  Page  1

          Date of Hearing:   June 25, 2013

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                  Paul Fong, Chair
                    SB 213 (Galgiani) - As Amended:  May 28, 2013

           SENATE VOTE  :   38-0
           
          SUBJECT  :   Election petitions: circulators.

           SUMMARY  :   Repeals various requirements that an individual must  
          be qualified to register to vote in order to circulate election  
          petitions and nomination papers.  Specifically,  this bill  :   

          1)Repeals a requirement that a person must be qualified to  
            register to vote in order to circulate an initiative or  
            referendum petition.  Repeals a requirement that a person must  
            be a voter in the city or qualified to register to vote in the  
            city in order to circulate a city initiative or referendum  
            petition.  Repeals a requirement that a person must be a voter  
            in the district or qualified to register to vote in the  
            district in order to circulate a district initiative petition.

          2)Repeals a requirement that a person must be a voter in the  
            electoral jurisdiction of an officer sought to be recalled in  
            order to circulate a recall petition for that officer.

          3)Repeals a requirement that a person must be a voter in the  
            district or political subdivision in which a candidate is to  
            be voted on in order to circulate nomination papers for that  
            candidate.

          4)Repeals a requirement that a person must be a registered voter  
            of the district or political subdivision in which a candidate  
            is to be voted on in order to circulate an in-lieu-filing-fee  
            petition for that candidate.  Repeals a requirement that a  
            person can circulate an in-lieu-filing-fee petition only in a  
            county in which he or she resides. 

          5)Requires a person to be 18 years of age or older in order to  
            circulate a state or local initiative, referendum, or recall  
            petition, an in-lieu-filing-fee petition, or a nominating  
            paper.

          6)Makes corresponding and technical changes.








                                                                  SB 213
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           EXISTING LAW  :

          1)Requires a person to be a voter or qualified to register to  
            vote in the state in order to circulate an initiative or  
            referendum petition.  

          2)Requires a person to be a voter in the electoral jurisdiction  
            of an officer sought to be recalled in order to circulate a  
            recall petition for that officer.

          3)Requires a person to be a voter in the city or qualified to  
            register to vote in the city in order to circulate a city  
            initiative or referendum petition.  

          4)Requires a person to be a voter in the district or qualified  
            to register to vote in the district in order to circulate a  
            district initiative petition.

          5)Requires a person to be a voter in the district or political  
            subdivision in which a candidate is to be voted on in order to  
            circulate nomination papers for that candidate.

          6)Permits a candidate to submit a petition containing signatures  
            of registered voters in lieu of paying a filing fee, as  
            specified.  Requires a person to be a registered voter of the  
            district or political subdivision in which a candidate is to  
            be voted on in order to circulate an in-lieu-filing-fee  
            petition for that candidate.  Provides that a person can  
            circulate an in-lieu-filing-fee petition only in a county in  
            which he or she resides. 

          7)Requires each section of an elections petition or paper that  
            is submitted to the elections official to have a circulator's  
            declaration attached to it with all of the following  
            information:

             a)   The printed name of the circulator;

             b)   The residence address of the circulator;

             c)   The dates between which the signatures on the petition  
               or paper were obtained;

             d)   A statement that the circulator circulated that section  








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               and witnessed the signatures being written; and,

             e)   A statement that, according to the best information and  
               belief of the circulator, each signature is the genuine  
               signature of the person whose name it purports to be.

          8)Requires a circulator to certify to truth and correctness of  
            the content of the circulator's declaration, as described  
            above, under penalty of perjury.

           FISCAL EFFECT  :  This bill is keyed non-fiscal by the Legislative  
          Counsel.

           COMMENTS  :   

           1)Purpose of the Bill  :  According to the author:

               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.

               The U.S. Supreme Court has struck down statutes that  
               require petition circulators to be registered voters.  
               (  Buckley v. American Constitutional Law Foundation,  
               Inc.  (1999) 525 U.S. 182.) Other federal courts have  
               struck down statutes that require petition circulators  
               to reside within the state or locality affected by a  
               petition, especially where requiring circulators to  
               submit to jurisdiction by agreement would achieve the  
               same end and would be more narrowly tailored to  
               further the state's interest in preventing fraud.  
               (See, e.g.,  Nader v. Brewer  (9th Cir. 2008) 531 F.3d  
               1028;  Krislov v. Rednour  (7th Cir. 2000) 226 F.3d 851;  
                Lerman v. NYC Board of Elections  (2d Cir. 2000) 232  
               F.3d 135; and  Chandler v. Arvada  (10th Cir. 2002) 292  
               F.3d 1236.)  

               The Secretary of State is constitutionally constrained  
               from declaring a state statute invalid, and Elections  








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               Code section 8106, subdivision (b), subsection (4) has  
               not been declared unconstitutional by any state or  
               federal court in California.  However, given the  
               similarities between this statute and the provisions  
               struck down in the foregoing cases, the Secretary of  
               State does not recommend or support the enforcement of  
               this statute against any petition circulator,  
               especially where the petition circulator agrees to  
               submit to local jurisdiction.

           2)Non-Resident Circulators and Pending Litigation  : In 2008, the  
            United States Court of Appeals for the Ninth Circuit ruled in  
             Nader v. Brewer  (2008), 531 F.3d 1028, that it was  
            unconstitutional for states to prevent non-residents from  
            circulating petitions. In 2009, the United States Supreme  
            Court declined to hear the case on appeal, so the Ninth  
            Circuit opinion stands.

          In 2010, the Libertarian Party of Los Angeles filed a lawsuit  
            against the Secretary of State (SOS) in federal court  
            challenging provisions of the California Elections Code that  
            require people who circulate nomination papers on behalf of a  
            candidate to be voters in the district or political  
            subdivision in which the candidate is to be voted on.  The  
            district court dismissed the complaint on the grounds that the  
            Libertarian Party lacked standing to sue, but a panel of the  
            United States Court of Appeals for the Ninth Circuit held that  
            the district court erred in dismissing the case.  The SOS  
            filed a petition requesting that the case be reheard before  
            the entire Court of Appeals for the Ninth Circuit, but that  
            petition was denied.  Further proceedings in the case were  
            delayed by the district court pending a potential appeal by  
            the SOS to the United States Supreme Court.

          In the latter half of 2012, a number of California counties were  
            sued in federal court because their county clerks were  
            allegedly enforcing state laws that prevent non-Californians  
            from circulating initiatives and/or nomination papers.   
            Proceedings in that case, which are pending in district court,  
            have been stayed pending the decision in the Libertarian Party  
            case. 

          In light of the court's ruling in  Nader  , this bill repeals  
            residency requirements for individuals who circulate  
            initiative, referendum, or recall petitions,  








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            in-lieu-filing-fee petitions, and nomination papers.

          3)Arguments in Support  :  In support of this bill, Secretary of  
            State Debra Bowen writes:

               Under state law, only Californians may circulate state  
               or local ballot measure petitions, recall petitions,  
               or nomination papers for signature, but several recent  
               federal court decisions have deemed those statutes  
               unconstitutional.  In 2012, 19 California  
               counties-unaware of federal court decisions-were sued  
               for upholding these state laws.

               SB 213 brings California's Elections Code in line with  
               recent federal court decisions and will save local  
               elections officials from unwittingly creating grounds  
               for costly lawsuits against them.  The bill permits  
               people who live outside of California to circulate  
               state or local ballot measure petitions, recall  
               petitions, or nominating papers for signature?

               I am sponsoring SB 213 to spare local election  
               officials from unnecessary litigation.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Secretary of State (Sponsor)
          California Association of Clerks and Election Officials (prior  
          version)
          Rural County Representatives of California
           
            Opposition 
           
          None on file.

           Analysis Prepared by  :    Ethan Jones / E. & R. / (916) 319-2094