BILL ANALYSIS Ó
AB 372
Page 1
Date of Hearing: April 15, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB
372 (Bigelow) - As Introduced February 17, 2015
SUBJECT: Elections: write-in candidates.
SUMMARY: Requires a write-in candidate for a voter-nominated
office who advances to the general election to pay the
prescribed filing fee in order to appear on the general election
ballot. Specifically, this bill:
1)Requires a write-in candidate for a voter-nominated office who
receives the highest or second highest number of votes cast at
the primary election to pay a filing fee to the Secretary of
State in order for his or her name to appear on the ballot at
the ensuing general election.
2)Provides that the amount of the fee is as follows:
a) In the case of United States Senator or any statewide
office, two percent of the first-year salary for the
office;
b) In the case of Representative in Congress, member of the
Board of Equalization, state Senator, or member of the
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Assembly, one percent of the first-year salary.
1)Provides that the salary that is used to calculate the filing
fee is the annual salary for the office as of the first day on
which a candidate may circulate petitions in lieu of filing
fees.
EXISTING LAW:
1)Provides that write-in candidates for office are not required
to pay a fee or charge except as provided for city office.
2)Requires a write-in candidate to gather the same number of
signatures on nomination papers as non-write-in candidates for
the same office.
3)Requires candidates for specified offices, other than write-in
candidates, to pay a filing fee or to submit a petition
containing signatures of registered voters in lieu of a filing
fee. Permits candidates to submit signatures to cover all or
any portion of the filing fee.
4)Provides that in order to be nominated at the primary election
for a voter nominated office, a write-in candidate must
receive the highest or second highest number of votes cast for
the office.
5)Provides that the following offices are voter nominated
offices: Governor, Lieutenant Governor, Secretary of State,
State Treasurer, State Controller, State Insurance
Commissioner, Attorney General, State Board of Equalization,
State Senator or Assemblymember and United States Senator or
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Representative.
FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS:
1)Purpose of the Bill: According to the author:
Currently write-in candidates for a voter-nominated office who
receive either the highest or the second highest number of votes
cast in the primary election do not have to pay a filling fee to
appear on the ballot in the general election. The filing fee is
a tool for the state and the counties to help recoup their costs
for running an election and is calculated as a percentage of the
official salary of the position the candidate is running for. AB
372 would require write-in candidates that advance from the
primary election to pay a filing fee in order to appear on the
ballot at the ensuing general election, just like the other
candidates. The purpose of this bill is to not discourage any
candidates from running but rather to ensure that our counties
do not have to absorb more costs during elections.
2)Alternative to a Filing Fee and Suggested Amendments:
California law requires candidates for many elective offices
to pay a filing fee at the time they obtain nomination papers
from the elections official. Filing fees are intended, in
part, to help cover the administrative costs of conducting the
election, but also serve as a means of limiting the size of
the ballot in order to reduce voter confusion, prevent
overwhelming voting systems, and allow the electorate to focus
attention on a smaller number of candidates in order that
elections may better reflect the will of the majority. Courts
have long recognized that states have a legitimate interest in
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regulating the number of candidates on the ballot for these
reasons.
At the same time, courts have also found that a state cannot
require candidates to pay a filing fee in order to appear on
the ballot unless the state also provides a reasonable
alternative means of ballot access. In Lubin v. Panish (1974)
415 U.S. 709, the United States Supreme Court found that a
California law that required certain candidates for office to
pay a filing fee in order to appear on the ballot was
unconstitutional because the law did not provide an alternate
means of qualifying for the ballot for indigent candidates who
were unable to pay the fee. In finding California's filing
fee law to be invalid, the court noted that there were other
"obvious and well known means of testing the 'seriousness' of
a candidacy which do not measure the probability of attracting
significant voter support solely by the neutral fact of
payment of a filing fee," including a requirement for a
candidate who cannot pay the filing fee to "demonstrate the
'seriousness' of his candidacy by persuading a substantial
number of voters to sign a petition in his behalf."
In response to the Supreme Court's decision in Lubin, the
Legislature enacted and the Governor signed AB 914 (Ray
Gonzales), Chapter 454, Statutes of 1974, an urgency measure
that permitted candidates to file petitions containing the
signatures of a specified number of registered voters in lieu
of paying a filing fee. The number of signatures required to
be collected in lieu of paying a filing fee has remained
largely unchanged since the signatures-in-lieu procedure was
originally adopted in 1974.
In light of the Supreme Court's decision in Lubin, the
committee may wish to consider an amendment to this bill to
provide for an alternative to the filing fee for indigent
candidates. Because of the limited amount of time between the
primary and the general election, it is unclear whether it is
feasible to have candidates collect signatures in lieu of
paying a filing fee. Instead, the committee may wish to
consider using a procedure that applies under existing law for
indigent candidates who wish to place a candidate statement
that appears in the voter information portion of the sample
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ballot. Under that procedure, a candidate who alleges to be
indigent and unable to pay for a statement must submit a
statement of financial worth to be used by the elections
official in determining whether the candidate is eligible to
have the fee waived.
Additionally, this bill does not currently include a deadline
for candidates to pay the filing fee required by this bill.
The committee and the author may wish to amend this bill to
establish a deadline for that filing fee to be paid.
3)Voter-Nominated Office: This bill applies to write-in
candidates who have received the highest or second highest
number of votes cast for a voter-nominated office.
Proposition 14 of 2010, which is also known as the Top Two
Candidates Open Primary Act, changed the way that elections
are conducted for all statewide elections in California. Under
California's Constitution, political parties are not entitled
to formally nominate candidates for voter-nominated offices at
the primary election. All voters may vote for any candidate
for a voter-nominated office, provided they meet the other
qualifications required to vote for that office. The top two
vote-getters at the primary election advance to the general
election for the voter-nominated office, even if both
candidates have specified the same party preference
designation.
4)Court Decisions on Fees for Write-In Candidates: Federal
courts have found certain laws that require write-in
candidates to pay filing fees to be unconstitutional. Dixon v.
Maryland State Administrative Board of Election Laws, 878 F.2d
776 (4th Cir. 1989) and Phillips v. Hechler 120 F. Supp.2d
587, 592 (S.D. W. Va. 2000). In light of those cases there
may be some questions about the constitutionality of this
bill. However, this bill is distinguishable from the laws
that were invalidated by the federal courts because it applies
only to candidates who ran as write-in candidates in the
primary and received sufficient votes to qualify to appear on
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the general election ballot. As a result, the candidates that
this bill applies to are no longer write-in candidates at the
time they are required to pay the filing fee.
5)Argument in Opposition: In opposition to this bill, the Peace
and Freedom Party writes:
The usual justification for filing fees is to avoid a
"crowded ballot." But under the present California Top Two
system, which we consider far too restricting as it is, no
more than two candidates may appear on the November ballot
for any "voter nominated" office. Cutting this to one for
certain offices, because the second or even the first June
vote-getter cannot pay the filing fee, would certainly not
deal with ballot crowding. But single-candidate elections
do contribute to voter apathy and low turnout.
AB 372 is poorly drafted. It does not address procedural
issues necessary to make the filing fee requirement work.
These include the deadline by which the fee must be paid
and provisions for submitting signatures in lieu of filing
fees. Even if it were amended to address these issues,
however, it would substantially burden candidates for no
public purpose.
REGISTERED SUPPORT /
OPPOSITION:
Support
None on file.
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Opposition
Peace and Freedom Party
Analysis Prepared
by: Lori Barber / E. & R. / (916) 319-2094