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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