BILL ANALYSIS Ó
ACR 145
Page 1
Date of Hearing: March 30, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
ACR 145
(Olsen) - As Introduced February 29, 2016
SUBJECT: Presidential primary elections: advisory ballots.
SUMMARY: Urges the Secretary of State (SOS) to prepare an
advisory ballot for the presidential primary election that would
allow a voter who did not request or vote a ballot of a
political party in that election to submit an advisory vote for
a candidate for the office of President of the United States
(US). Specifically, this measure:
1)Urges the SOS to do all of the following:
a) Prepare an advisory ballot for the presidential primary
election that would allow a voter who did not request or
vote a ballot of a political party in that election to
submit an advisory vote for a candidate for the office of
President of the US.
b) List on the advisory ballot each qualified candidate for
the office of President of the US, regardless of the
candidate's political party preference.
ACR 145
Page 2
c) Provide for the distribution of the advisory ballot to
all voters who did not request or vote a ballot of a
political party in that election.
d) Provide for the canvassing of the advisory ballots in
the same manner, and at the same time and place, as the
results of the presidential primary elections ballots for
the political parties are canvassed.
2)Encourages each political party that participates in the
presidential primary election to consider the results of the
advisory ballots in selecting the party's nominee for the
office of President of the US.
3)Makes various findings and declarations about the presidential
primary election process, including all of the following:
a) The SOS has the authority to adopt regulations to assure
the uniform application and administration of state
election law.
b) Subdivision (a) of Section 5 of Article II of the
California Constitution requires a voter-nominated primary
election to be conducted to select the candidates for
congressional and state elective offices in California, at
which all voters, regardless of their political party
preference, may vote for any candidate.
ACR 145
Page 3
c) Voters in California have become accustomed to
voter-nominated primary elections, and therefore, voters
are likely to be confused if they cannot vote for the
candidate of their choice, without regard to political
party preference.
d) Pursuant to subdivision (c) of Section 5 of Article II
of the California Constitution, the Legislature is required
to provide for an open presidential primary election.
e) The Legislature has provided for a semi-closed primary
election system under which a voter who is not registered
as disclosing a preference with any one of the political
parties participating in the election may vote a ballot of
a political party only if the party, by party rule duly
noticed to the SOS, permits a person to do so.
EXISTING LAW:
1)Constitutionally requires the Legislature to provide for
partisan elections for presidential candidates, including an
open presidential primary whereby the candidates on the ballot
are those found by the SOS to be recognized candidates
throughout the nation or throughout California for the office
of President of the US, and those whose names are placed on
the ballot by petition, but excluding any candidate who has
withdrawn by filing an affidavit of noncandidacy.
ACR 145
Page 4
2)Permits a person to choose a political party preference when
registering to vote. Voters who do not choose a political
party preference are commonly referred to as "No Party
Preference" (NPP) voters.
3)Permits a voter to change his or her political party
preference by completing a new voter registration application.
Provides that the deadline to register to vote for an
election is the 15th day prior to the election, as specified.
4)Requires, at a presidential primary election, that a NPP voter
be furnished only a nonpartisan ballot, unless he or she
requests a ballot of a political party and that political
party, by party rule noticed to the SOS, authorizes NPP voters
to vote the ballot of that political party. Provides that the
nonpartisan ballot shall contain only the names of candidates
for nonpartisan offices, voter-nominated offices, and measures
to be voted for at the primary election. Requires each voter
registered as preferring a political party participating in
the election to be furnished only a ballot for which he or she
disclosed a party preference, as specified, and the
nonpartisan ballot, both of which are printed together as one
ballot.
5)Provides that the SOS is the chief elections officer of the
state. Requires the SOS to see that elections are efficiently
conducted and that state election laws are enforced. Permits
the SOS to adopt regulations to assure the uniform application
and administration of state election laws.
FISCAL EFFECT: Unknown
ACR 145
Page 5
ACR 145
Page 6
COMMENTS:
1)Purpose of the Resolution: According to the author:
California's semi-closed presidential primary means
that political parties decide whether non-member
voters have the right to participate in their
presidential nomination proceedings.
California's Constitution provides for an open
presidential primary. This means that voters have the
constitutionally protected right to participate,
unconditioned by their party affiliation.
California's current semi-closed primary system
disenfranchises voters by conditioning the individual
citizen's right to vote on the private decision-making
authority of political parties.
While the modified semi-closed system protects the 1st
amendment private right of political parties to
determine their nominee as they see fit, it violates
the California State Constitution's requirement that
the Legislature provide voters with an open
presidential primary. An open primary is one whereby
every voter has an unconditioned right to participate.
By urging the [SOS] to provide a nonpartisan
presidential primary ballot option, ACR 145 honors the
State's constitutional obligation to provide voters
the opportunity to cast a ballot at an important stage
of the election process - whether or not they choose
ACR 145
Page 7
to join a party, while also protecting the right of
political parties to determine who may or may not
participate in their private nomination proceedings.
2)What is an "Open" Primary? There is no definition of the term
"open primary" in California law, and in fact, the term has
been used to mean different things at different times with
respect to primary elections held in the state.
As detailed above, Article II, Section 5 of the California
Constitution requires the Legislature to "provide for partisan
elections for presidential candidates?including an open
presidential primary whereby the candidates on the ballot are
those found by the Secretary of State to be recognized
candidates throughout the nation?" This language referring to
an "open presidential primary" was added to the Constitution
through the adoption of Proposition 4 at the June 1972
statewide primary election, which was placed on the ballot by
the Legislature through the adoption of SCA 3 (Alquist),
Resolution Chapter 274, Statutes of 1971. Based on news
reports, legislative history, and the ballot arguments for and
against Proposition 4, it is clear that the effect and intent
of the constitutional amendment was to require the SOS to
place on the ballot the names of recognized candidates for
President of the US without the need for those candidates (or
for delegates who were pledged to support those candidates) to
circulate petitions. In this context, the term "open
presidential primary" referred to the fact that the primary
was open to any person who was generally recognized as a
candidate for president, as opposed to being limited to
candidates who were backed by a slate of delegates who had
circulated petitions to appear on the ballot.
The term "open primary" had a different meaning in the context
of an initiative that was approved by the voters at the March
ACR 145
Page 8
1996 statewide primary election. Proposition 198-also known
as the "Open Primary Act" (Act)-provided for primary elections
at which all candidates for a partisan office were listed on
the same ballot, and all voters, regardless of party
affiliation, were permitted to vote for any candidate
regardless of the candidate's political party affiliation.
The candidate of each political party who received the most
votes became the nominee of that party at the general
election. Elections were conducted under the provisions of
the Act for the June 1998 statewide primary election and the
March 2000 statewide primary election. In June 2000, the US
Supreme Court invalidated the Act in California Democratic
Party v. Jones (2000), 530 U.S. 567, finding that it violated
a political party's First Amendment right of association,
because it allowed individuals who were not members of a
political party to be involved in choosing that party's
nominee who would appear on the general election ballot. In
response to the ruling, the Legislature enacted SB 28 (Peace),
Chapter 898, Statutes of 2000. SB 28 implemented a
"semi-closed" primary election system that permits voters not
affiliated with a political party to participate in a
political party's primary election if authorized by that
party's rules. Although the state has subsequently moved to a
"top two" primary election system for congressional elections
and for elections for most state offices, presidential primary
elections continue to be conducted under the "semi-closed"
primary election system created by SB 28.
The author of this measure asserts, and the text of this
resolution suggests, that California's current presidential
primary system is inconsistent with the state Constitution
because the state conducts a "semi-closed" presidential
primary rather than an "open" presidential primary. This
assertion, however, appears to be based on misunderstanding of
the meaning of the phrase "open presidential primary" as it is
used in the state Constitution. As detailed above, the
constitutional requirement for an open presidential primary
ACR 145
Page 9
was intended to ensure that generally recognized candidates
for President would automatically be placed on the primary
election ballot by the SOS. California's current process for
conducting presidential primary elections is wholly consistent
with that requirement. Last month, Secretary of State Alex
Padilla released the list of generally recognized candidates
for President who will be placed on the June 7, 2016,
presidential primary election ballot in California. In all,
Secretary Padilla identified 43 candidates for inclusion on
primary election ballots: seven in the Democratic Party
primary; nine in the Republican Party primary; seven in the
American Independent Party primary; five in the Green Party
primary; 12 in the Libertarian Party primary; and three in the
Peace and Freedom Party primary.
3)Presidential Primary Election Options: Under California's
presidential primary system, a voter who is registered with a
political party receives a ballot for that party's
presidential primary election. For example, a voter who is
registered with the Green Party receives a ballot containing
the Green Party candidates for President. NPP voters (and
voters who registered with a political body that is attempting
to qualify as a party) can request the ballot of any political
party that has notified the SOS that it will allow those
voters to participate in its presidential primary election.
For the June 7, 2016, statewide primary election, the
Democratic Party, American Independent Party, and Libertarian
Party have all indicated that they will allow voters who are
not registered with a party to participate in their
presidential primary elections.
Under this system, every registered voter in California has the
opportunity to participate in a presidential primary election.
Voters who are registered with the Democratic, Republican,
American Independent, Green, Libertarian, or Peace and Freedom
Party will receive the primary election ballot for their
ACR 145
Page 10
respective parties. At the same time, voters who are not
registered with a political party will have the option of
choosing to receive a presidential primary election ballot for
the Democratic Party, the American Independent Party, or the
Libertarian Party. In all, voters who are not registered with
a political party will be able to choose between 26 different
candidates for president; on the other hand, voters who are
registered with a political party will have a choice of
between three and 12 candidates, depending on the party.
Finally, as noted above, any voter can update his or her
political party for the primary election by re-registering to
vote through the 15th day prior to the election. For this
June's presidential primary election, voters have until May
23, 2016, to re-register and change political parties for the
purposes of the presidential primary election.
4)Secretary of State Authority: The text of this resolution
urges the SOS to "exercise his or her authority to establish a
new advisory voting process that would allow certain voters to
cast an advisory ballot in the presidential primary election."
It is not clear, however, that the SOS has the authority to
establish such a process absent a change in state law.
In fact, existing state law appears to prohibit the type of
advisory ballot that is envisioned by this resolution.
Section 13102 of the Elections Code requires that voters who
are not registered with a political party be provided only
with a nonpartisan ballot unless the voter requests the ballot
of a political party that has authorized voters who are not
registered with a political party to participate in its
primary election. Section 13102 further provides that the
nonpartisan ballot shall contain only the names of candidates
for nonpartisan offices, voter-nominated offices, and measures
to be voted for at the primary election. President of the US
is neither a nonpartisan nor a voter-nominated office.
ACR 145
Page 11
Furthermore, while state law requires the SOS to enforce the
provisions of the Elections Code and to see that elections are
efficiently conducted and that state election laws are
enforced, nothing in state law appears to give the SOS the
discretionary authority to establish an advisory voting
process that is neither required nor authorized by statute.
If the SOS attempted to create a new "advisory voting process"
for the presidential primary election as urged by this
resolution, such an action would appear to be in direct
conflict with state law.
5)Logistical Issues: The existence of an advisory ballot could
create confusion that, in turn, could prevent voters from
casting votes that count for the purposes of determining the
political parties' nominees for President. For example, for
this June's presidential primary election, an NPP voter has
the option of requesting the presidential primary ballot for
the Democratic Party, the American Independent Party, or the
Libertarian Party. If an NPP voter wants to vote for a
Libertarian Party candidate for President, that voter can do
so by requesting the Libertarian Party ballot. If the NPP
voter also had the option of voting an advisory ballot that
contained the Libertarian Party candidates for President,
however, and voted for the Libertarian Party candidate on the
advisory ballot, would that vote be recognized by the
Libertarian Party as part of the official results the Party's
primary? If not, could confusion about the different types of
ballots that are available inadvertently disenfranchise voters
who vote on advisory ballots, instead of selecting the ballot
of a political party?
Relatedly, for this June's presidential primary election, if a
NPP voter wanted to vote for a Republican candidate for
President, that voter could do so by re-registering as a
Republican through the 15th day prior to the election. But if
that voter had the option of voting for a Republican candidate
ACR 145
Page 12
on an advisory ballot, would some voters be misled into
believing that they could have their votes counted in the
Republican presidential primary election without
re-registering and changing their party preferences? If so,
the existence of the advisory ballot could disenfranchise
voters who otherwise would have chosen to re-register with a
political party in order to vote for their favored candidate.
This resolution urges the SOS to prepare an advisory ballot, to
list specified candidates on that advisory ballot, to provide
for the distribution of that ballot, and to provide for the
canvassing of advisory ballots in a specified manner.
Although the SOS is the chief elections officer of the state,
none of these tasks currently are performed by the SOS.
Instead, for statewide elections, the preparation of ballots,
the listing of candidates on ballots, the distribution of
ballots, and the canvassing of ballots are all performed by
county elections officials. Even if the SOS has the authority
to create an advisory voting process for the presidential
primary election (which, as detailed above, is unclear), the
SOS does not actually conduct elections and it is unclear
whether or how the SOS could compel county elections officials
to conduct an election that is not provided for under state
law.
Furthermore, it is unclear whether it is the intent of this
resolution that voters be provided with an advisory ballot at
this year's presidential primary election, or if the
resolution is seeking such a process for future elections
only. To the extent that the author of this resolution is
seeking a change in this year's presidential primary process,
it is unclear whether such a goal is realistic. Ballots for
this June's primary election will start being sent out to
overseas and military voters just nine days after this
resolution is scheduled to be heard in this committee. The
creation of an entirely new type of ballot-and the
coordination that would be necessary with county elections
ACR 145
Page 13
officials to produce that ballot, make it available to
specified voters, and canvass the results of that ballot-would
be a significant undertaking. Attempting to make such a
significant change less than 70 days before the presidential
primary election could jeopardize the conduct of that
election.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file.
Opposition
None on file.
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094
ACR 145
Page 14