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.) SB 589 (Block) Page 2 of ? 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 SB 589 (Block) Page 3 of ? 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 SB 589 (Block) Page 4 of ? 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.) SB 589 (Block) Page 5 of ? 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 SB 589 (Block) Page 6 of ? 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 SB 589 (Block) Page 7 of ? 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 SB 589 (Block) Page 8 of ? 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 SB 589 (Block) Page 9 of ? 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 SB 589 (Block) Page 10 of ? 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 SB 589 (Block) Page 11 of ? 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 SB 589 (Block) Page 12 of ? 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) **************