BILL ANALYSIS Ó
AB 1296
Page 1
Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 1296
(Jones) - As Amended April 6, 2015
SUBJECT: Elections: initiative and referendum measures.
SUMMARY: Makes changes to the procedures for placing a local
initiative measure on the ballot, as specified. Specifically,
this bill:
1)Requires an elections official, if a petition for a municipal,
county, or district initiative measure, city or city and
county charter proposal, or municipal referendum, is found to
have sufficient signatures, to immediately place the
initiative measure that is the subject of the petition on the
election ballot for which it qualifies pursuant to existing
law.
2)Requires the elections official, if more than one election
date is legally available, to place the measure on the ballot
for the earliest legally possible date unless the board of
supervisors by resolution chooses a different legally possible
date in accordance with existing law.
3)Prohibits the measure from being removed from the ballot on
which it has been placed under the provisions of this bill
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unless the elections official is notified in writing that the
board of supervisors has adopted the measure without
alteration, or the elections official is ordered to remove the
measure via a writ of mandate or injunction issued by the
court of competent jurisdiction.
4)Makes other technical and conforming changes.
EXISTING LAW:
1)Requires an elections official, within 30 days from the date a
local initiative measure petition is filed, excluding
Saturdays, Sundays, or holidays, to examine the petition, and
from the records of registration ascertain whether or not the
petition is signed by the requisite number of voters, as
specified.
2)Requires the board of supervisors, if a county initiative
petition is signed by not less than 20 percent of the entire
vote cast within the county for all candidates for Governor at
the last gubernatorial election preceding the publication of
the notice of intention to circulate an initiative petition,
and contains a request that the ordinance be submitted
immediately to a vote of the people at a special election, to
do one of the following:
a) Adopt the ordinance, without alteration, at the regular
meeting at which the certification of the petition is
presented, or within 10 days after it is presented;
b) Immediately order a special election, to be held
pursuant to existing law at which the ordinance, without
alteration, shall be submitted to a vote of the voters of
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the county; or,
c) Order a report pursuant to existing law at the regular
meeting at which the certification of the petition is
presented. Requires the board of supervisors, when the
report is presented, to either adopt the ordinance within
10 days or order an election, as specified.
3)Requires the board of supervisors, if a county initiative
petition is signed by not less than 10 percent of the entire
vote cast within the county for all candidates for Governor at
the last gubernatorial election preceding the publication of
the notice of intention to circulate an initiative petition,
to do one of the following:
a) Adopt the ordinance, without alteration, at the regular
meeting at which the certification of the petition is
presented, or within 10 days after it is presented;
b) Submit the ordinance, without alteration, to the voters
pursuant to existing law, unless the ordinance petitioned
for is required to be, or for some reason is, submitted to
the voters at a special election in accordance with
existing law; or,
c) Order a report pursuant to existing law at the regular
meeting at which the certification of the petition is
presented. Requires the board of supervisors, when the
report is presented, to either adopt the ordinance within
10 days or order an election, as specified.
4)Requires the legislative body, if a municipal initiative
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petition is signed by not less than 15 percent of the voters
of the city, as specified, or in a city with 1,000 or less
registered voters, by 25 percent of the voters or 100 voters
of the city, whichever is lesser, and contains a request that
the ordinance by submitted immediately to a vote of the people
at a special election, to do one of the following:
a) Adopt the ordinance, without alteration, at the regular
meeting at which the certification of the petition is
presented, or within 10 days after it is presented;
b) Immediately order a special election, to be held
pursuant to existing law at which the ordinance, without
alteration, shall be submitted to a vote of the voters of
the city; or,
c) Order a report pursuant to existing law at the regular
meeting at which the certification of the petition is
presented. Requires the legislative body, when the report
is presented, to either adopt the ordinance within 10 days
or order an election, as specified.
5)Requires the legislative body, if a municipal initiative
petition is signed by not less than 10 percent of the voters
of the city, as specified, or in a city with 1,000 or less
registered voters, by 25 percent of the voters or 100 voters
of the city, whichever is lesser, and contains a request that
the ordinance be submitted immediately to a vote of the people
at a special election, to do one of the following:
a) Adopt the ordinance, without alteration, at the regular
meeting at which the certification of the petition is
presented, or within 10 days after it is presented;
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b) Submit the ordinance, without alteration, to the voters
pursuant to existing law, unless the ordinance petitioned
for is required to be, or for some reason is, submitted to
the voters at a special election in accordance with
existing law; or,
c) Order a report pursuant to existing law at the regular
meeting at which the certification of the petition is
presented. Requires the legislative body, when the report
is presented, to either adopt the ordinance within 10 days
or order an election, as specified.
6)Requires a district board, if an initiative petition is signed
by voters not less in number than 10 percent of the voters in
the district, where the total number of registered voters is
less than 500,000, or not less in number than 5 percent of the
voters in the district, where the total number of registered
voters is 500,000 or more, and the petition contains a request
that the ordinance be submitted immediately to a vote of the
people at a special election, to do either of the following:
a) Adopt the ordinance, without alteration, either at the
regular meeting at which the certification of the petition
is presented, or within 10 days after it is presented; or
b) Immediately order that the ordinance be submitted to the
voters, without alteration, as specified.
7)Requires a district board, if an initiative petition does not
request a special election, to do either of the following:
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a) Adopt the ordinance, without alteration, either at the
regular meeting at which the certification of the petition
is presented, or within 10 days after it is presented; or
b) Submit the ordinance, without alteration, to the voters
pursuant to existing law, unless the ordinance petitioned
for is required to be, or for some reason is, submitted to
the voters at a special election in accordance with
existing law.
8)Requires the election for a county, municipal, or district
initiative that qualifies in accordance with existing law to
be held not less than 88 nor more than 103 days after the date
of the order of the election.
9)Permits the election on the initiative measure, when it's
legally possible to hold a special election on an initiative
measure that has qualified in accordance with existing law
within 180 days prior to a regular or special election
occurring wholly or partially within the same territory, to be
held on the same date as, and be consolidated with, that
regular or special election.
10)Permits the election on the initiative measure, when it's
legally possible to hold a special election on an initiative
measure that has qualified pursuant to existing law during the
period between a regularly scheduled statewide direct primary
election and a regularly scheduled statewide general election
in the same year, to be held on the same date as, and be
consolidated with, the statewide general election.
11)Permits, in order to avoid holding more than one special
election within any 180-day period, the date for holding the
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special election on an initiative measure that has qualified
in accordance with existing law to be fixed later than 103
days but at as early a date as practicable after the
expiration of 180 days from the last special election.
12)Provides that not more than one special election for an
initiative measure that qualifies pursuant to existing law may
be fixed to be held by a jurisdiction during any period of 180
days.
13)Requires the election for a county initiative that qualifies
with not less than10 percent of the vote, as specified, to be
held at the next statewide election occurring not less than 88
days after the date of the order of the election. Requires
the election for a municipal petition that qualifies with not
less than 10 percent of the vote, as specified, or a district
petition that qualifies without requesting a special election
pursuant to existing law, to be held at the jurisdiction's
next regular election occurring not less than 88 days after
the date of the order of the election.
14)Requires the election for a county or municipal referendum
that qualifies pursuant to existing law to be held at the
jurisdiction's next regular election occurring not less than
88 days after the date of the order of the election of at a
special election called for that purpose not less than 88 days
after the date of the order of the election.
15)Provides that a county, municipal, district, or school
district initiative, referendum, or recall elections are not
required to abide by established election days, as specified.
16)Provides a writ of mandate procedure for challenging matters
in county elections, municipal elections, district elections,
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and school district elections, that among other things:
a) Requires the elections official to make a copy of any
proposed ordinance or ballot initiative available for
public examination for a period of 10 calendar days
immediately following the submission of those materials;
b) Permits any voter in the jurisdiction in which the
election is being held to seek a writ of mandate or
injunction requiring any or all of the material to be
amended or deleted, as long as such request is filed no
later than the end of the 10-day public examination period;
or,
c) Provides that the peremptory writ of mandate or
injunction shall be issued only upon clear and convincing
evidence that the material in question is false,
misleading, or inconsistent with specified requirements,
and that issuance of the writ or injunction will not
substantially interfere with the printing or distribution
of official election materials as provided by law.
FISCAL EFFECT: Unknown. State-mandated local program; contains
reimbursement direction.
COMMENTS:
1)Purpose of the Bill: According to the author:
Existing law (Elec. Code §§ 9118, 9215, 9311) requires
local agencies, when presented with a certified initiative,
to only do one of two things. They can either pass it into
law themselves or place it on the next regular election
ballot. Increasingly, however, local agencies are engaging
in an unauthorized third option: withholding the initiative
from the ballot because they view it as undesirable. This
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unlawfully shifts to the proponents the responsibility of
presenting to the voters a proposal that enough of them
signed to earn a spot on the ballot. If the proponents can
afford an attorney, they can go to court to get the judge
to do what the local agency was required to do--put the
initiative on the ballot. If they cannot afford an
attorney, then the initiative dies without a vote, in
violation of our state constitution. Because governing
officials have a conflict of interest, they should not be
allowed to decide unilaterally that a measure is unfit for
the ballot and keep it from the voters. AB 1296 authorizes
the elections official, upon certifying an initiative, to
immediately place it on the ballot for which it qualifies
pursuant to Elections Code section 1405. Nothing prohibits
a local government agency from then using the election writ
process to remove a measure from the ballot for things like
inappropriately gathered signatures, etc. This bill simply
says that, once an initiative receives its certification,
the Registrar of Voters or applicable elections official
shall place it on the ballot and not remove it unless
ordered to do so by a court.
2)Examination of Signatures: Current law requires an elections
official, within 30 days from the date a county initiative
measure petition is filed, excluding Saturdays, Sundays, or
holidays, to examine the petition, and from the records of
registration ascertain whether or not the petition is signed
by the requisite number of voters, as specified. Existing law
requires the elections official to verify the signatures
thereon either from a 100 percent check or a random sampling.
Upon completion of the signature verification, current law
requires the elections official to certify as to the
sufficiency or insufficiency of the petition. If the petition
is insufficient, no action is taken and if the petition is
sufficient, current law requires the elections official to
certify the results to the governing body at the next regular
meeting of the governing body. Elections officials are
required to examine municipal and district initiative
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measures, city and city and county charter proposals, and
municipal referendums in the same manner as county initiative
measures.
3)What happens when a petition is sufficient? Current law
requires the governing body of a local jurisdiction to take
certain actions once a petition has sufficient signatures.
For example, if a county initiative measure petition is signed
by voters not less in number than 20 percent of the entire
votes cast within the county for all candidates for Governor
at the last gubernatorial election preceding the publication
of the notice of intention, existing law requires the board of
supervisors, to do one of the following: 1) adopt the
ordinance, without alterations, at the regular meeting in
which the certification is presented or within 10 days after
it is presented; 2) immediately call a special election, if it
is legally possible, at which the ordinance, without
alteration, is to be submitted to the voters; or 3) order an
impact report at the regular meeting at which the
certification is presented and requires the board of
supervisors, after receiving the report, to either adopt the
ordinance within 10 days or call an election, as specified.
When legally possible, current law permits the election to be
consolidated with a regular or special election held within
six months (180 days) or the special election must be held not
less than 88 or more than 103 days after the date of the order
of election. However, in certain cases, current law permits
the 103 day deadline to be extended. Existing law provides
that not more than one special election for an initiative
measure that has qualified may be held by a jurisdiction
during any period of 180 days.
Moreover, existing law requires the board of supervisors, if the
petition is signed by voters not less in number than 10
percent of the entire votes cast within the county for all
candidates for Governor at the last gubernatorial election
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preceding the publication of the notice of intention, to do
one of the following: 1) adopt the ordinance, without
alterations, at the regular meeting in which the certification
is presented or within 10 days after it is presented; 2)
submit the ordinance, without alterations, to the voters, as
specified, unless the ordinance petitioned for is required to
be, or for some reason is submitted to voters at a special
election, pursuant to existing law; or 3) order an impact
report at the regular meeting at which the certification is
presented and requires the board of supervisors, after
receiving the report, to either adopt the ordinance within 10
days or call an election, as specified. Existing law requires
an election to vote on the county initiative to be
consolidated with the next statewide election occurring not
less than 88 days after the date of the board of supervisors
order or after the board of supervisors is presented with the
impact report.
This bill makes significant changes to the procedures a
governing body must follow once a petition has sufficient
signatures. Specifically, this bill requires an elections
official, if a petition is found sufficient, to immediately
place the initiative measure on the election ballot for which
it qualifies. In addition, this bill requires an elections
official, if there is more than one election date legally
available, to place the measure on the ballot for the earliest
legally possible date unless the board of supervisors by
resolution chooses a different legally possible date in
accordance with existing law. The new procedures required in
this bill apply to county, municipal, and district initiative
measures, as well as, city and city and county charter
proposals, and municipal referendum measures.
4)Is there a problem? The author contends that the changes
outlined in this bill are necessary because local governing
bodies are withholding initiatives from the ballot that they
view as undesirable. The committee, however, is not aware nor
has been able to locate any examples demonstrating a current
problem of abuse. Furthermore, neither the author nor the
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sponsors have provided the committee with any information or
evidence to support their allegations that local agencies are
improperly withholding measures from the ballot. Because the
proponents are unable to provide evidence of a problem, the
committee may wish to consider whether this bill is
potentially a solution in search of a problem.
5)Election Writ Procedure: Current law permits a voter of the
jurisdiction in which the election is being held, or an
elections official, to seek a writ of mandate or an injunction
requiring any material to be amended or deleted, as specified.
In addition, existing law requires that a writ of mandate or
an injunction be issued only upon clear and convincing proof
that the material in question is false, misleading, or
inconsistent, as specified. The purpose of this writ
procedure is to give voters or elections officials an
opportunity to challenge very specific types of legal issues,
and to do so on a very tight timetable so as not to delay
publication or distribution of election ballots and materials.
This bill prohibits a measure from being removed from the
ballot on which it has been placed under the provisions of
this bill unless the elections official is notified in writing
that the governing body has adopted the measure without
alteration, or the elections official is ordered to remove the
measure via a writ of mandate or injunction issued by the
court of competent jurisdiction.
6)Arguments in Support: In support, the Howard Jarvis Taxpayers
Association, writes:
Despite existing law, however we have seen a growing trend
of local agencies withholding from the ballot certified
initiatives that they don't like. The agency may file suit
against the proponents, tying them up in expensive
litigation when it is unknown whether the initiative would
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even pass. Or the agency may wait for initiative
proponents to take action themselves to force an election,
which will never happen if the proponents cannot afford
counsel. Because local agencies are not courts, and
because they have a conflict of interest as to initiatives
they don't like, they should not be allowed to decide
unilaterally that a measure is unfit for the ballot and
withhold it from the voters.
7)Arguments in Opposition: In opposition, California State
Council of the Service Employees International Union, writes:
The process of placing measures on a ballot is a form of
direct democracy that allows the public to seek changes to
public policy when lawmakers are unable or unwilling to act
on a given issue. The process of direct democracy
inherently requires the [proponent] to spend time
researching and drafting the proposal, funding to qualify
the measure for the ballot, and activity towards informing
the public of the need of the proposed change.
In the majority of instances, the choice to place a measure
on [a] specific ballot is a matter of timing and strategy
by the proponent(s) of the measures towards achieving
success at the ballot. This measure seeks to require the
elections official who certifies the measure, and if more
than one election date is legally possible, to place it on
the ballot at the earliest legally possible date.
Moreover, AB 1296 thus, removes the option of choice from
the proponent(s).
Exercising the right to choose is an important form of
expression by voters, including a measure's proponent(s),
who may cast a ballot on measures, or candidates during an
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election. AB 1296 removes the proponent's choice as to the
ballot specifically sought after that would permit efforts
towards maximizing voter outreach and success at the
ballot. Moreover, the right to choose is further eroded if
the Board of Supervisors (BOS) chooses to place the measure
on a different ballot, as proposed by AB 1296. This then
would require efforts by the proponent(s) to engage the BOS
to place the measure on the specific ballot targeted by the
proponents. This requirement creates additional challenges
by the fact that the BOS might also be the body that
initially was either unable or unwilling to act on the same
proposed change to public policy.
Rather than simplifying the democratic process and
permitting choice, AB 1296 would create additional
challenges for voters to directly engage the public via the
ballot.
8)Previous Legislation: AB 2338 (Wagner) of 2014, which failed
in the Assembly Judiciary Committee on a 3-7 vote, would have
required any local government or district seeking to challenge
the qualification or validity of a certified ballot initiative
to use a specified elections writ of mandate procedure instead
of filing a pre-election action for declaratory relief, as
specified.
REGISTERED SUPPORT / OPPOSITION:
Support
Howard Jarvis Taxpayers Association
Association of Builders and Contractors of California
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Opposition
California State Council of the Service Employees International
Union
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094