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