BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 589 (Block)
          Version: April 6, 2015
          Hearing Date:  April 28, 2015
          Fiscal: Yes
          Urgency: No
          TMW
                    

                                        SUBJECT
                                           
           Voting:  voter registration:  individuals with disabilities and  
                                    conservatees

                                      DESCRIPTION  

          This bill would prohibit disqualifying a conservatee from voting  
          if he or she would need to complete an affidavit for voter  
          registration with reasonable accommodations.  This bill would  
          provide that a person is presumed competent to vote regardless  
          of his or her conservatorship status and clarify the judicial  
          procedures through which an individual with a disability or  
          under a conservatorship would lose his or her ability to vote.   
          In order to deem a person mentally incompetent and disqualified  
          from voting, this bill would require a court to make a finding  
          of clear and convincing evidence that the person cannot  
          communicate, with or without reasonable accommodations, a desire  
          to participate in the vote process.

                                      BACKGROUND  

          The National Voter Registration Act of 1993 provides United  
          States citizens the fundamental right to vote and requires state  
          and local governments to promote the exercise of that right.   
          (52 U.S.C. Sec 20501(a).)  That Act prohibits denying a citizen  
          the right to vote in any federal, state, local election, because  
          of the citizen's failure to comply with any test or device,  
          which includes any requirement that a person demonstrate the  
          ability to read, write, understand, or interpret any matter.   
          (52 U.S.C. Sec. 10501.)









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          Additionally, the Voting Accessibility for Elderly and  
          Handicapped Act requires states to provide specified  
          registration and voting aids for federal elections for  
          handicapped and elderly individuals.  (52 U.S.C. Secs. 20101,  
          20104.)  Federal law also provides that any voter who requires  
          assistance to vote by reason of blindness, disability, or  
          inability to read or write may be given assistance by a person  
          of the voter's choice.  (52 U.S.C. Sec. 10508.)

          Last year, AB 1311 (Bradford, Chapter 591, Statutes of 2014)  
          clarified the voting protections for conservatees.  AB 1311 was  
          a response to a complaint filed by the Disability and Abuse  
          Project of Spectrum Institute with the Department of Justice's  
          Civil Rights Division against the Los Angeles Superior Court  
          regarding that court's application of existing state law which  
          deems conservatees ineligible to register to vote if they are  
          not capable of completing an affidavit of voter registration.   
          The complaint asserted that this practice constituted a  
          violation of the federal Voting Rights Act's prohibition on use  
          of a test or device as a prerequisite for voter registration.

          This bill would supplement the conservatee voting protections  
          clarified last year in AB 1311 by clarifying a conservatee's  
          right to vote and providing that a conservatee will not be  
          disqualified from voting because, in order to complete an  
          affidavit of voter registration, he or she needs reasonable  
          accommodations.

          This bill was heard by the Senate Elections and Constitutional  
          Amendments Committee on April 21, 2015, and passed out on a vote  
          of 4-1.

                                CHANGES TO EXISTING LAW
           
           Existing federal law  , the National Voter Registration Act of  
          1993, declares that the right of United States citizens to vote  
          is a fundamental right, is the duty of the federal, state, and  
          local governments to promote the exercise of that right; and  
          discriminatory and unfair registration laws and procedures can  
          have a direct and damaging effect on voter participation in  
          elections for federal office and disproportionately harm voter  
          participation by various groups.  (52 U.S.C. Sec. 20501(a).)
           
          Existing federal law  prohibits denying a citizen the right to  
          vote in any federal, state, local election, because of the  







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          citizen's failure to comply with any test or device.  The term  
          "test or device" includes, among other things, any requirement  
          that a person demonstrate the ability to read, write,  
          understand, or interpret any matter.  (52 U.S.C. Sec. 10501.)

           Existing federal law , the Voting Accessibility for Elderly and  
          Handicapped Act, declares the federal intent to promote the  
          fundamental right to vote by improving access for handicapped  
          and elderly individuals to registration facilities and polling  
          places for federal elections, and requires states to provide  
          specified registration and voting aids for federal elections for  
          handicapped and elderly individuals.  (52 U.S.C. Secs. 20101,  
          20104.)

           Existing federal law  provides that any voter who requires  
          assistance to vote by reason of blindness, disability, or  
          inability to read or write may be given assistance by a person  
          of the voter's choice, other than the voter's employer or agent  
          of that employer or officer or agent of the voter's union.  (52  
          U.S.C. Sec. 10508.)
           
          Existing law  , the California Constitution, requires the  
          Legislature to prohibit improper practices that affect elections  
          and to provide for the disqualification of electors while  
          mentally incompetent or imprisoned or on parole for the  
          conviction of a felony.  (Cal. Const., art. II, Sec. 4.)

           Existing law  requires a person, who desires to vote, to complete  
          and submit, as specified, an affidavit of registration, and  
          provides that a properly executed registration is deemed  
          effective if it is received on or before the 15th day before an  
          election to be held in the registrant's precinct.  (Elec. Code  
          Sec. 2102.)

           Existing law  requires the affidavit of registration to show  
          facts necessary to establish the affiant as an elector, requires  
          the affidavit of registration to show specified information,  
          including the affiant's name and place of residence, and  
          requires the affiant to certify the content of the affidavit as  
          to its truth and correctness, under penalty of perjury, with the  
          signature of the affiant's name and the date of signing, except  
          that if the affiant is unable to write, a mark or cross must be  
          used to sign the affidavit.  (Elec. Code Sec. 2150.)

           Existing law  provides that a person shall be deemed mentally  







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          incompetent, and therefore disqualified from voting if, during  
          certain proceedings including conservatorship proceedings, the  
          court finds that the person is incapable of completing, as  
          specified, an affidavit of voter registration.  (Elec. Code Sec.  
          2208.)

           Existing law , for specified conservatorship proceedings, during  
          yearly or biennial reviews of the conservatorship, requires the  
          court investigator to review the person's capability of  
          completing an affidavit of voter registration.  If the person  
          had been disqualified from voting by reason of being incapable  
          of completing an affidavit of voter registration, the court  
          investigator is required to determine if the person has become  
          capable of completing the affidavit.  Existing law provides that  
          if the investigator finds that the person is capable of  
          completing the affidavit, the court is required to hold a  
          hearing to determine whether the person is in fact capable of  
          completing the affidavit.  If the person had not been found  
          incapable of completing an affidavit of voter registration, and  
          the court investigator determines that the person in no longer  
          capable of completing the affidavit, the court is required to  
          hold a hearing to determine whether the person is capable of  
          completing the affidavit, and is required to disqualify the  
          person from voting if the court determines that the person is  
          not so able.  (Elec. Code Sec. 2209.)

          Existing law  , if a conservatorship petition is filed by a person  
          other than the proposed conservatee, requires the court clerk to  
          issue a citation directed to the proposed conservatee setting  
          forth the time and place of the hearing and the citation is  
          required to include statement that, among other things, the  
          proposed conservatee may be disqualified from voting if he or  
          she is not capable of completing an affidavit of voter  
          registration.  (Prob. Code Sec. 1823.)
           Existing law  , when determining whether a conservatorship should  
          be established, requires the court investigator to determine,  
          among other things, whether the proposed conservatee is not  
          capable of completing an affidavit of voter registration.   
          (Prob. Code Sec. 1826.)

           Existing law  , prior to the establishment of a conservatorship,  
          requires the court to inform the proposed conservatee, among  
          other things, that the proposed conservatee may be disqualified  
          from voting if he or she is not capable of completing an  
          affidavit of voter registration.  (Prob. Code Sec. 1828.)







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           Existing law  , upon subsequent court review of a conservatorship,  
          as specified, requires the court investigator to determine,  
          among other things, whether the conservatee is not capable of  
          completing an affidavit of voter registration.  Existing law, if  
          the court determines the conservatee is not capable of  
          completing an affidavit of voter registration, requires the  
          court to disqualify the conservatee from voting.  Existing law  
          prohibits the conservatee from being disqualified from voting  
          because the conservatee would need to sign the affidavit with a  
          mark, cross, or signature stamp, or completes the affidavit with  
          the assistance of another person.  (Prob. Code Secs. 1851,  
          1910.)

           This bill  would authorize an individual with a disability who is  
          otherwise qualified to vote to complete an affidavit of  
          registration with reasonable accommodations as needed.

           This bill  would authorize an individual with a disability who is  
          under a conservatorship to register to vote if he or she has not  
          been disqualified from voting.

           This bill  would provide that a person is presumed competent to  
          vote regardless of his or her conservatorship status.

           This bill  , in order for a person to be deemed mentally  
          incompetent and therefore disqualified from voting, would  
          require a court or jury, as specified, to find by clear and  
          convincing evidence that the person cannot communicate, with or  
          without reasonable accommodations, a desire to participate in  
          the voting process.

           This bill  , if an order establishing a conservatorship is made  
          and in connection with the order it is found by clear and  
          convincing evidence that the person cannot communicate, with or  
          without reasonable accommodations, a desire to participate in  
          the voting process, would require the court to forward the order  
          and determination to the county elections official of the  
          person's county of residence.  

           This bill  would prohibit a person from being disqualified from  
          voting if the person would need to complete the affidavit of  
          voter registration with reasonable accommodations.

           This bill  , for specified established conservatorships, would  







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          require the court investigator, during the yearly or biennial  
          review of the conservatorship as required, to review the  
          person's capability of communicating, with or without reasonable  
          accommodations, a desire to participate in the voting process.

           This bill  , if a conservatorship petition is filed by a person  
          other than the proposed conservatee, would require the court  
          clerk to issue a citation to the proposed conservatee that,  
          among other things, the proposed conservatee may be disqualified  
          from voting if he or she is incapable of communicating, with or  
          without reasonable accommodations, a desire to participate in  
          the voting process.

           This bill  , when determining whether a conservatorship should be  
          established or upon subsequent conservatorship review, as  
          specified, would require the court investigator to determine if  
          the proposed conservatee is incapable of communicating, with or  
          without reasonable accommodations, a desire to participate in  
          the voting process, and may be disqualified from voting, and  
          prohibit the proposed conservatee from being disqualified from  
          voting if he or she would need to complete the affidavit of  
          voter registration with reasonable accommodations.

           This bill , before the establishment of a conservatorship, would  
          require the court to inform the proposed conservatee that the  
          proposed conservatee may be disqualified from voting if he or  
          she is incapable of communicating, with or without reasonable  
          accommodations, a desire to participate in the voting process.

           This bill  , if the court determines, upon a finding of clear and  
          convincing evidence and after a noticed hearing, that the  
          conservatee is incapable of communicating, with or without  
          reasonable accommodations, a desire to participate in the voting  
          process, would require the court by order to disqualify the  
          conservatee from voting.  However, the bill would prohibit the  
          disqualification if it is based on the conservatee needing to  
          complete the affidavit of voter registration with reasonable  
          accommodations.

           This bill  would also make technical, non-substantive changes.  

          This bill  would provide legislative findings and declarations  
          that federal disability nondiscrimination laws, including Title  
          II of the federal American with Disabilities Act, entitle people  
          with disabilities to reasonable accommodations, as needed, to  







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          participate in public activities such as voting, and that by  
          explicitly adding the concept of reasonable accommodation to  
          California laws on voter qualification, this bill brings the  
          state into compliance with federal standards.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Under current law, adults with developmental disabilities  
            under conservatorships are routinely being disenfranchised at  
            extremely high levels.  A review of 61 conservatorship cases  
            involving adults with developmental disabilities in Los  
            Angeles County found that close to 90 [percent] of  
            conservatees in those cases had been disqualified from voting  
            due to their actual or perceived inability to complete the  
            voter registration affidavit.  Furthermore, this review found  
            that probate attorneys are being trained to disqualify adults  
            under conservatorships from voting when he/she are not able to  
            sign a registration affidavit.

            SB 589 will allow disabled individuals under conservatorship  
            to retain their right to vote unless it is shown by clear and  
            convincing evidence that the individual cannot communicate,  
            with or without reasonable accommodations, a desire to  
            participate in the voting process.  This is the standard  
            recommended by the American Bar Association and adopted in  
            Nevada and Maryland.  This crucial shift will improve the  
            protections of these adults to maintain their voting rights in  
            California.
          
          2.  California's conservatorship system
           
          In California, a conservatorship is a court action where a judge  
          appoints a person (conservator) to care for another adult  
          (conservatee).  There are two basic types of conservatorships:   
          probate conservatorships and Lanterman-Petris-Short (LPS)  
          conservatorships.  There are two types of probate  
          conservatorships - general conservatorships for adults who  
          cannot take care of themselves or their finances, and limited  
          conservatorships for adults with developmental disabilities who  
          cannot fully care for themselves or their finances but do not  
          need the higher level of care or help that conservatees in  







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          general conservatorships require.  Lanterman-Petris-Short (LPS)  
          conservatorships are established for individuals who are gravely  
          disabled as a result of a mental health disorder or impairment  
          by chronic alcoholism.  The conservator who is appointed may be  
          a family member, friend, professional fiduciary, or public  
          guardian.

          During the conservatorship process, the needs of the proposed  
          conservatee are evaluated by the judge, a court investigator,  
          and possibly a public guardian.  After the conservatorship has  
          been established, the court investigator and judge continue to  
          monitor the conservatee and the actions of the conservator, who  
          may be a public guardian or professional fiduciary, if not a  
          relative or friend.  Because the conservatee is at the mercy of  
          the conservator appointed to manage the conservatee's personal  
          or financial matters, judicial oversight is necessary to make  
          certain the conservatee is not being abused, defrauded, or  
          unreasonably limited in his or her activities.
          Although a conservatorship has been established pursuant to a  
          finding that the conservatee needs personal or financial  
          assistance, the conservatee's ability to register to vote may or  
          may not be impaired.  According to the author, a recent study  
          found that California courts have routinely failed to adequately  
          determine the conservatee's abilities to register and vote in  
          federal, state, and local elections.  Last year, AB 1311  
          (Bradford, Chapter 591, Statutes of 2014) clarified that a  
          conservatee may not be disqualified from voting on the basis  
          that the conservatee signs the affidavit of voter registration  
          with a mark or a cross, signs the affidavit of voter  
          registration with a signature stamp, or completes the affidavit  
          of voter registration with the assistance of another person.   
          This seeks to build upon AB 1311 by further clarifying  
          conservatee voting rights.

          3.  Providing conservatees reasonable accommodations for voter  
            registration  

          National Voter Registration Act of 1993 (VRA), declares that the  
          right of United States citizens to vote is a fundamental right.   
          The Voting Accessibility for Elderly and Handicapped Act  
          requires states to provide specified registration and voting  
          aids for federal elections for handicapped and elderly  
          individuals in order to promote that fundamental right and  
          improve access for handicapped and elderly individuals to  
          registration facilities and polling places for federal  







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          elections.  The VRA provides that any voter who requires  
          assistance to vote by reason of blindness, disability, or  
          inability to read or write may be given assistance by a person  
          of the voter's choice.

          In California, a conservatee may be disqualified from voting if  
          he or she is not capable of completing an affidavit of voter  
          registration.  Although AB 1311 clarified that a conservatee may  
          not be disqualified on the basis of how he or she signs an  
          affidavit for registration, California law does not otherwise  
          provide guidance on the conservatee's need for any other  
          accommodation for voter registration.  
           
          The author argues that "[u]nder federal disability  
          nondiscrimination laws[,] people with disabilities are entitled  
          to reasonable accommodations as needed to participate in public  
          activities such as voting.  While a recent law listed some types  
          of accommodations available to adults under conservatorship to  
          complete a voter registration form, SB 589 would conform  
          California law to federal law by stating that people with  
          disabilities are entitled to reasonable accommodations.  This  
          change will help protect the voting rights of adults with  
          developmental disabilities who often fall through the cracks in  
          our democracy."  Further, The Arc and United Cerebral Palsy  
          California Collaboration, in support, asserts that SB 589  
          "corrects an egregious practice of denying voting registration  
          to people with disabilities who simply need assistance in  
          filling out the forms."

          This bill would advance the fundamental voting rights of a  
          conservatee in two ways.  First, this bill would acknowledge the  
          importance of this fundamental right by establishing the  
          presumption that a person is competent to vote regardless of his  
          or her conservatorship status.  This presumption was suggested  
          by the American Bar Association (ABA) in its 2007 Report to the  
          House of Delegates "to promote the democratic process to the  
          fullest extent possible."  (Commission on Law and Aging Standing  
          Committee on Election Law and Commission on Mental and Physical  
          Disability Law, Report to the House of Delegates, American Bar  
          Assoc. (Aug. 13, 2007), p. 10.)  In support of this  
          recommendation, the ABA argues that "no governmental entity  
          should exclude any otherwise qualified person from voting on the  
          basis of medical diagnosis, disability status, or type of  
          residence."  (Id.)  Second, this bill would protect fundamental  
          voting rights by revising the reasons for denying a conservatee  







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          the right to vote.  This bill would remove the ability to  
          disqualify a person from voting because the person is not  
          capable of completing an affidavit of voter registration, and,  
          instead, require a court to find that the person cannot  
          communicate, with or without reasonable accommodations, a desire  
          to participate in the voting process.  This new basis for  
          denying voting rights shifts the focus to a person's incapacity  
          to vote, rather than the existing basis of the physical  
          inability to vote.

          Although the ABA does not provide a definition of what  
          reasonable accommodations for voting purposes means, presumably,  
          the reasonable accommodation may include receiving assistance  
          reading the voter registration instructions, filling out the  
          affidavit for registration, and reading and completing a voting  
          ballot.  

          4.  Clear and convincing standard for disqualifying conservatee  
            from voting  


          Existing law provides due process procedures for disqualifying a  
          conservatee from voting, including interviews of the conservatee  
          by a court investigator, notice of the potential to lose the  
          right to vote during a conservatorships hearing, and an  
          opportunity for the conservatee to participate in a hearing to  
          determine, among other things, whether the conservatee should be  
          disqualified from voting.  This bill would further support a  
          conservatee's fundamental right to vote by establishing a high  
          standard, clear and convincing evidence, to be found by a court  
          in order to disqualify the conservatee from voting.  Clear and  
          convincing evidence means that the evidence presented to the  
                                                                                  court must be highly and substantially more probable to be true  
          than not and the court must have a firm belief or conviction in  
          its factuality.  This standard of proof requires a higher degree  
          of proof than the common standard of proof in civil actions,  
          which only requires that the facts as a threshold be more likely  
          than not to prove the issue for which they are asserted.


          The American Civil Liberties Union of California (ACLU),  
          sponsor, argues that "[t]he current process for assessing  
          whether disabled conservatees keep their right to vote is  
          inadequate, does not comply with federal law, and places  
          disabled individuals at risk of being disenfranchised without  







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          the due process protections we would expect with a fundamental  
          right at stake.  California probate courts have typically made a  
          pro forma judicial finding that an individual is unable to  
          complete a voter registration affidavit.  A conservatee can be  
          disqualified from voting without any specific finding regarding  
          competency to vote, and without consideration of reasonable  
          accommodations that would enable the conservatee to complete the  
          voter registration affidavit."  Arguably, by establishing a  
          clear and convincing standard, this bill will reduce the  
          likelihood that conservatees will lose their right to vote.  

          It is important to note that this bill also requires court  
          investigators to find clear and convincing evidence of the  
          conservatee's inability to communicate regarding voting rights  
          and provide that evidence to the court.  Current law requires a  
          court investigator to determine whether the proposed conservatee  
          is capable of completing an affidavit of voter registration.   
          However, SB 78 (Committee on Budget and Fiscal Review, Chapter  
          10, Statutes of 2011) suspended certain superior court duties  
          imposed since the 2006 Omnibus Act until the Legislature makes  
          an appropriation for this purpose.  Accordingly, the additional  
          court investigator duties required by this bill may not be  
          performed absent an appropriation.


           Support  :  AIDS Legal Referral Panel; Association of Regional  
          Center Agencies; Autistic Self Advocacy Network of Los Angeles;  
          California Advocates for Nursing Home Reform; Cal-TASH;  
          Disability Rights Advocates; Disability Rights California;  
          Spectrum Institute, Disability and Guardianship Project; Shasta  
          County Clerk and Registrar of Voters; The Arc and United  
          Cerebral Palsy California Collaboration

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  American Civil Liberties Union of California

          Related Pending Legislation  :  AB 1536 (Assembly Committee on  
          Elections and Redistricting, 2015) would update voter  
          registration and election requirements to provide current  
          cross-references to the National Voter Registration Act of 1993  
          and make other technical, non-substantive changes.  AB 1536 has  
          been set for hearing in the Assembly Elections and Redistricting  







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          Committee on May 13, 2015.

           Prior Legislation  :  AB 1311 (Bradford, Chapter 591, Statutes of  
          2014) See Background; Comment 2.

           Prior Vote  :  Senate Elections and Constitutional Amendments  
          Committee (Ayes 4, Noes 1)

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