BILL ANALYSIS Ó
AB 884
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Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 884
(Rendon) - As Amended April 22, 2015
SUBJECT: Initiative petitions: title and summary.
SUMMARY: Requires the title and summary of a state initiative
measure to contain a specified disclaimer if the Attorney
General (AG) determines that the proposed measure would likely
result in a violation of an individual's constitutional rights.
Increases the fee that proponents must pay when submitting a
proposed state initiative measure to the AG for preparation of
the circulating title and summary. Specifically, this bill:
1)Requires the AG to include the following statement in the
circulating title and summary of a proposed state initiative
measure if the AG, when preparing the circulating title and
summary, determines that the measure would likely result in a
violation of an individual's constitutional rights:
The Attorney General has determined that this
initiative measure, if approved by the voters, would
likely result in a violation of an individual's rights
under the United States Constitution or the California
Constitution.
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2)Increases the fee that proponents of a state initiative
measure must pay at the time they submit the text of the
proposed measure to the AG for preparation of the circulating
title and summary, from $200 to $1,000. Permits the AG, on an
annual basis, to determine the actual cost of preparing the
title and summary and to increase the fee to a maximum of
$5,000 to recover the full cost of preparing the title and
summary.
3)Makes technical changes.
EXISTING LAW:
1)Requires the proponents of a proposed state initiative measure
to submit the text of the proposed measure to the AG with a
written request that a circulating title and summary of the
measure be prepared, prior to circulating the petition for
signatures. Requires the proponents, at the time of
submitting the text of the measure to the AG, to pay a fee of
$200. Provides that the fee shall be refunded to the
proponents if the measure qualifies for the ballot within two
years of the date that the circulating title and summary is
provided to the proponents.
2)Requires the AG to prepare a circulating title and summary of
the chief purposes and points of a proposed state initiative
measure, which is not to exceed 100 words. Requires the
Department of Finance (DOF) and the Legislative Analyst to
prepare an estimate of the amount of any increase or decrease
in revenues or costs to the state or local government from the
measure. Requires the AG to include this estimate in the
title and summary, as specified.
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3)Requires the circulating title and summary of a state
initiative measure, as prepared by the AG, to appear on each
page of the initiative petition on which signatures are to
appear and on each section of the petition preceding the text
of the measure.
FISCAL EFFECT: Unknown. State-mandated local program; contains
a public records disclaimer.
COMMENTS:
1)Purpose of the Bill: According to the author:
More than a century ago, Californians adopted the
"initiative" process of gathering signatures for a
ballot measure to change California law. Since that
time, voters have approved countless initiatives, but
the process has drawn criticism as well. In some
cases, voters approve an initiative only to have a
court throw out the measure, because it violates the
federal or state constitution. AB 884 would allow the
Attorney General to make a judgment on the
constitutionality before the measure goes out for
signatures. It also increases the cost of filing an
initiative in order to cover the costs of the Attorney
General preparing a title and summary.
2)Recent Proposed State Initiative: In February of this year a
proposed initiative measure, entitled the "Sodomite
Suppression Act" by its proponent, was submitted to the AG for
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preparation of a circulating title and summary. Among other
provisions, that measure provides that a "person who willingly
touches another person of the same gender for the purposes of
sexual gratification [shall] be put to death" and that the
distribution or transmission of "sodomistic propaganda," as
defined, is punishable by a $1 million fine, imprisonment for
10 years, or expulsion from the state.
Last month, Attorney General Kamala Harris filed an action for
declaratory relief seeking judicial authorization not to issue
a circulating title and summary for that proposed initiative
measure. In announcing that action, Attorney General Harris
issued the following statement:
As Attorney General of California, it is my sworn duty
to uphold the California and United States
Constitutions and to protect the rights of all
Californians. This proposal not only threatens public
safety, it is patently unconstitutional, utterly
reprehensible, and has no place in a civil society.
Today, I am filing an action for declaratory relief
with the Court seeking judicial authorization for
relief from the duty to prepare and issue the title
and summary for the "Sodomite Suppression Act." If
the Court does not grant this relief, my office will
be forced to issue a title and summary for a proposal
that seeks to legalize discrimination and vigilantism.
Attorney General Harris' request for declaratory relief
is pending in the Sacramento Superior Court. The
deadline for the AG to issue the circulating title and
summary for the initiative is early in May.
3)Word Limit on Circulating Title & Summaries and Suggested
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Amendment: Existing law prohibits the circulating title and
summary for a state initiative measure that is prepared by the
AG from exceeding 100 words, not including the fiscal estimate
of the measure that is prepared by the Legislative Analyst and
the DOF. This bill requires the AG to include specified text
in the circulating title and summary of a proposed state
initiative measure if the AG determines that the measure would
likely result in a violation of an individual's constitutional
rights. It is unclear whether that text-which is 30 words
long pursuant to the rules in the Elections Code that govern
the counting of words-would count against the limit on the
length of the title and summary. To the extent that those
words do count against the limit, this bill could hamper the
AG's efforts to accurately and completely describe the effect
of certain proposed state initiative measures.
The committee and the author may wish to consider an amendment
to explicitly specify that the inclusion of this text does not
count against the 100 word limit on the circulating title and
summary for a proposed state initiative measure.
4)Appeals Process and Suggested Amendment: While this bill
allows the AG to make a determination that a proposed state
initiative measure may violate an individual's constitutional
rights, and requires specified information to be included in
the circulating title and summary if the AG makes such a
determination, the bill does not explicitly contain an remedy
or appeals process for proponents that disagree with the AG's
determination. In order to ensure that initiative proponents
have an appropriate method of review in situations where they
disagree with the AG's assessment that a proposed state
initiative measure may violate an individual's constitutional
rights, the committee and the author may wish to consider an
amendment to permit the proponents of a measure to challenge
the AG's determination in court.
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5)Increasing Number of Initiatives: According to the AG's
office, there has been a steady increase in the number of
initiative proposals submitted in the last few decades. The
following illustrates the increased number of state
initiatives that were submitted for title and summary:
a) 47 from 1960 to 1969;
b) 180 from 1970 to 1979;
c) 282 from 1980 to 1989;
d) 391 from 1990 to 1999;
e) 647 from 2000 to 2009; and,
f) 240 from 2010 to April 21, 2015.
6)Background and Purpose of the Fee: The purpose of the $200
filing fee is two-fold. Primarily, the fee exists to
discourage the submission of frivolous proposals; secondly,
the fee is intended to defray some of the administrative costs
to the state associated with processing initiatives.
The existing fee was established in 1943 and has never been
increased. When adjusted for inflation using the Consumer
Price Index, $200 in 1943 corresponds to more than $2,700
today.
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7)Costs to Prepare a Title and Summary: According to information
from the AG's office, between 2009 and 2013 (the last year for
which cost information is available), 315 proposed state
initiative measures were submitted to the AG for preparation
of a circulating title and summary. Of those 315 proposals,
27 qualified for the ballot. Based on the staff time involved
for the preparation of circulating titles and summaries for
those measures, the AG estimates that each initiative costs an
average of $8,252 to the AG for preparation of the title and
summary. Those costs do not include any costs incurred by the
Legislative Analyst and the DOF for preparation of the fiscal
estimate for proposed measures, nor do they include costs
incurred by state and county elections officials for duties
they must perform for proposed initiative measures.
8)Arguments in Support: In support of this bill, the American
Civil Liberties Union of California writes:
Californians have a long history of passing initiatives
that violate individual constitutional rights. In 1964,
California voters passed Proposition 14 to repeal the
Rumford Fair Housing Act, a statute that prohibited
discrimination in housing based on race, religion and
gender. Passed by 65 percent of the voters, Proposition 14
made it lawful to discriminate and went even further,
changing California's Constitution to prohibit the state
and local governments from enacting fair housing laws. As
the argument against the initiative in the voter guide
said, "Proposition 14 would write hate and bigotry into the
constitution." The ACLU challenged the initiative on behalf
of Dorothy Mulkey, an African American woman denied the
right to rent an apartment. The case went all the way to
the U.S. Supreme Court which upheld the California Supreme
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Court's decision that Proposition 14 violated the equal
protection clause of the Fourteenth Amendment of the U.S.
Constitution.
Just six and a half years ago, California voters approved
Proposition 8, taking away the right of gay men and
lesbians to marry the person they love. While Proposition 8
is no longer in effect in California as a result of legal
challenges in federal court, its words remain in our state
constitution.
California currently has no formal process to review ballot
initiatives for their impact on protected constitutional
rights before the election. In contrast, eight states and
Washington, D.C, have some form of pre-certification review
to ensure that only constitutionally sound measures make it
onto the ballot.
AB 884 would not go as far as these other states have gone.
Rather, AB 884 is a modest step forward. The bill provides
a simple mechanism to inform voters of the likely impact of
a potential ballot measure on the constitutionally
protected rights of individuals. For these reasons, we
support AB 884.
9)Arguments in Opposition: In opposition to this bill, the
Howard Jarvis Taxpayers Association writes:
AB 884 would increase the fee to file a ballot measure
with the Attorney General for a circulating title and
summary from $200 to $1000. At her discretion, the fee
could be increased annually up to a maximum of $5000
in order to recover the full cost of preparing the
materials. AB 884 also states that if the Attorney
General believes that the initiative measure would
likely result in the violation of an individual's
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rights that she can include a statement to that effect
along with any petition that is circulated.
Our main concern stems from the language regarding
violating an individual's rights. While we recognize
this is in response to numerous individuals who have
filed directly offensive measures-things we too find
distasteful-we think such broad language being
included in the ballot pamphlet could lead to the
direct democracy process becoming needlessly
politicized, and also confusing, for voters. For
instance, what is to stop a pension reform measure
from having this warning because it might violate an
individual's right to a secure retirement? Or
regarding the more recent Proposition 26, that it
violates an individual's right to breathe clean air
because it allegedly aids polluters? While well
intentioned, without tighter controls this language
could be subject to manipulation.
10)Related Legislation: AB 1100 (Low), which is also being heard
in this committee today, would raise the fee that is required
to be paid to the AG at the time an initiative is submitted
for title and summary from $200 to $8,000.
REGISTERED SUPPORT / OPPOSITION:
Support
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American Civil Liberties Union of California
American Federation of State, County and Municipal Employees,
AFL-CIO (prior version)
Opposition
Howard Jarvis Taxpayers Association
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094