BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  July 1, 2015 


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          SB  
          589 (Block) - As Amended June 18, 2015


          SENATE VOTE:  27-10


          SUBJECT:  Voting: voter registration: individuals with  
          disabilities and conservatees.


          SUMMARY:  Authorizes an individual with a disability who is  
          otherwise qualified to vote to complete an affidavit of  
          registration with reasonable accommodations as needed and  
          requires that a person be presumed mentally competent to vote,  
          regardless of his or her conservatorship status, if the court  
          finds that the person can communicate, with or without  
          reasonable accommodations, a desire to participate in the voting  
          process.  Specifically, this bill:  


          1)Contains findings and declarations that federal disability  
            nondiscrimination laws, including Title II of the federal  
            American with Disabilities Act (ADA), entitle people with  
            disabilities to reasonable accommodations, as needed, to  
            participate in public activities such as voting.  Contains  
            further findings and declarations that by explicitly adding  
            the concept of reasonable accommodation to California law on  
            voter qualification, this bill brings the state into  
            compliance with federal standards.








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          2)Expressly provides that an individual with a disability who is  
            otherwise qualified to vote may complete an affidavit of  
            registration with reasonable accommodations as needed.  

          3)Expressly provides that an individual with a disability who is  
            under a conservatorship may be registered to vote if he or she  
            has not been disqualified from voting.  

          4)Provides that a person is presumed competent to vote  
            regardless of his or her conservatorship status.  

          5)Deletes provisions of law that require a person to be deemed  
            mentally incompetent, and therefore disqualified from voting,  
            if a court or jury, as specified, finds that the person is not  
            capable of completing an affidavit of voter registration in  
            accordance with existing law, and instead requires a person to  
            be deemed mentally incompetent, and therefore disqualified  
            from voting, if a court or jury, as specified, finds by clear  
            and convincing evidence that the person cannot communicate,  
            with or without reasonable accommodations, a desire to  
            participate in the voting process.

          6)Deletes provisions of law that require a court, if an order  
            establishing conservatorship is made and in connection with  
            that order it is found that the person is not capable of  
            completing an affidavit of voter registration, to forward the  
            order and determination to the county elections official of  
            the person's county of residence, and instead requires a court  
            to forward the order to the county elections official if 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.  

          7)Prohibits a person from being disqualified from voting on the  
            basis that the person completed the affidavit of voter  
            registration with reasonable accommodations. 

          8)Deletes provisions of law that require a court investigator,  








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            during a yearly or biennial review of certain  
            conservatorships, to review the person's capability of  
            completing an affidavit of voter registration in accordance  
            with existing law, and instead requires the court investigator  
            to review, as specified, the person's capability of  
            communicating, with or without reasonable accommodations, a  
            desire to participate in the voting process.  Requires a court  
            investigator, if the conservatee's capability of communicating  
            a desire to participate in the voting process has changed, to  
            inform the court and requires the court to hold a hearing  
            regarding the capability, a specified. 

          9)Makes other technical, conforming changes.



          EXISTING FEDERAL LAW:   
          1)Prohibits a citizen from being denied the right to vote in any  
            federal, state, or local election conducted in any state or  
            political subdivision of a state because of his or her failure  
            to comply with any test or device.  Defines a "test or device"  
            to include, among other things, any requirement that a person  
            demonstrate the ability to read, write, understand, or  
            interpret any matter.

          2)Provides for voters who need assistance to vote by reason of  
            blindness, disability, or inability to read or write to be  
            given assistance by a person of the voter's choice.

          3)Requires a public entity to make reasonable modifications in  
            policies, practices, or procedures when the modifications are  
            necessary to avoid discrimination on the basis of disability,  
            unless the public entity can demonstrate that making the  
            modifications would fundamentally alter the nature of the  
            service, program, or activity. 



          EXISTING STATE LAW:   








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          1)Permits a person who is a United States citizen, a resident of  
            California, and at least 18 years of age at the time of the  
            next election to register to vote.

          2)Provides that the Legislature shall prohibit improper  
            practices that affect elections and shall provide for the  
            disqualification of electors while mentally incompetent or  
            imprisoned or on parole for the conviction of a felony.



          3)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.



          4)Permits an individual to receive assistance from another  
            person when completing an affidavit of registration.  Requires  
            any person that assists an individual in completing the  
            affidavit, to sign and date the affidavit below the signature  
            of the affiant.



          5)Requires an individual to certify the content of the affidavit  
            of voter registration as to its truth and correctness, under  
            penalty of perjury, with a signature and the date of signing.   
            Permits an individual that is unable to write, to sign with a  
            mark or cross or use a signature stamp, as specified.


          6)Regulates the terms and conditions of conservatorships and  
            creates various requirements for a court and a court  
            investigator with regard to informing a proposed conservatee  








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            that he or she may be disqualified from voting if he or she is  
            not capable of completing an affidavit of voter registration.   
            Requires a person be deemed mentally incompetent and  
            disqualified from voting if a court finds that he or she is  
            not capable of completing an affidavit of voter registration,  
            as specified.

          7)Prohibits a person, including a conservatee, from being  
            disqualified from voting on the basis that the person 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. 



          8)Requires a court investigator, during yearly or biennial  
            reviews of certain conservatorships, to review the person's  
            capability of completing an affidavit of voter registration.   
            Requires a court investigator, if the person had been  
            disqualified from voting by reason of being incapable of  
            completing an affidavit of voter registration, to determine if  
            the person has become capable of completing the affidavit.   
            Requires a court, if the investigator finds that the person is  
            capable of completing the affidavit, to hold a hearing to  
            determine whether the person is in fact capable of completing  
            the affidavit.  Requires a court, if the person had not been  
            found incapable of completing an affidavit of voter  
            registration, and the court investigator determines that the  
            person is no longer capable of completing the affidavit, to  
            hold a hearing to determine whether the person is capable of  
            completing the affidavit, and to disqualify the person from  
            voting if the court determines that the person is not so able.  
             

          9)Requires the court, whenever an order establishing a  
            conservatorship is made and in connection with the order it is  
            found that the person is not capable of completing an  
            affidavit of voter registration, to forward the order and  








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            determination to the county elections official of the person's  
            county of residence.



          10)Requires the court clerk to issue a citation directed to the  
            proposed conservatee that includes, among other things, a  
            statement that the proposed conservatee may be disqualified  
            from voting if he or she is not capable of completing an  
            affidavit of voter registration.  

          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.



          COMMENTS:  
          1)Purpose of the Bill:  According to the author:


               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% 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  








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               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. This crucial shift will improve the  
               protections of these adults to maintain their voting rights  
               in California. 





               Protecting the rights of adults with developmental  
               disabilities is critical in maintaining and encouraging an  
               inclusive and diverse electorate. If an adult under  
               conservatorship can convey their desire to engage in the  
               elections system, we should do everything in our power to  
               ensure that they keep their voting rights. SB 589 will be a  
               significant step forward in ensuring that adults under  
               conservatorships don't slip through the cracks in our  
               democracy.  


          2)Voter Registration Assistance:  Article II, Section 2 of the  
            California Constitution permits a person who is a United  
            States citizen, a resident of California, and at least 18  
            years of age at the time of the next election, to register to  
            vote.  Additionally, Article II, Section 4 of the California  
            Constitution provides that the Legislature shall prohibit  
            improper practices that affect elections and shall provide for  
            the disqualification of electors while mentally incompetent or  
            imprisoned or on parole for the conviction of a felony.   
            Moreover, Section 208 of the federal Voting Rights Act (VRA)  
            provides that voters who need 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.  Section  
            201 of the VRA provides that no citizen shall be denied the  
            right to vote in any federal, state, or local election  
            conducted in any state or political subdivision of a state  
            because of his or her failure to comply with any test or  








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            device.  The VRA defines a "test or device" to include, among  
            other things, any requirement that a person demonstrate the  
            ability to read, write, understand, or interpret any matter.



            Current state law permits an individual to receive assistance  
            from another person when completing an affidavit of voter  
            registration and requires the person that assists the  
            individual in completing the affidavit to sign and date the  
            affidavit, as specified.  Additionally, state law requires an  
            individual to certify the content of the affidavit of voter  
            registration as to its truth and correctness, under penalty of  
            perjury, with a signature and the date of signing and provides  
            that if the individual is unable to write he or she may  
            instead sign with a mark or cross or use a signature stamp, as  
            specified.  



          3)Voting Rights of Conservatees: In California, if an adult is  
            unable to manage his or her medical and personal decisions, a  
            conservator of the person may be appointed.  While a  
            conservator of the person has charge of the care, custody and  
            control of the conservatee, that power is not absolute.   
            According to a form adopted by the Judicial Council entitled  
            Notice of Conservatee's Rights, when a person becomes a  
            conservatee, he or she does not necessarily lose the right to  
            take part in important decisions affecting his or her property  
            and way of life.  After appointment of a conservator, the  
            conservatee keeps specified rights including the right to vote  
            unless the court has limited or taken that right away.

            Last year the Disability and Abuse Project of Spectrum  
            Institute filed a formal complaint with the United States  
            Department of Justice's Civil Rights Division against the Los  
            Angeles Superior Court regarding their application of existing  
            state law deeming conservatees ineligible to register to vote  
            if they are not capable of completing an affidavit of voter  








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            registration.  The complaint asserted that this practice  
            constitutes a violation of the federal VRA's prohibition on  
            use of a test or device as a prerequisite for voter  
            registration.  


            That complaint was the impetus for AB 1311 (Bradford), Chapter  
            591, Statutes of 2014, which clarified the voting protections  
            for conservatees.  Specifically, AB 1311 prohibited a person,  
            including a conservatee, from being disqualified from voting  
            on the basis that he or she signs the affidavit of voter  
            registration with mark or a cross, signs the affidavit of  
            voter registration with a signature stamp, or completes the  
            affidavit of registration with the assistance of another  
            person.  AB 1311 ensured federal and state laws related to  
            voter registration assistance are applied equally to any  
            individual who seeks to register to vote.  



            According to the author and proponents of this bill, while AB  
            1311 was helpful in clarifying current law to explicitly  
            permit certain accommodations in completing the voter  
            registration affidavit, it did not, however, modify the  
            standard for determining when a disabled, conserved individual  
            is not competent to participate in the voting process.  This  
            bill builds upon AB 1311 by further clarifying conservatee  
            voting rights and modifying the standard for determining when  
            a disabled, conserved individual is not competent to  
            participate in the voting process.  Specifically, this bill  
            prohibits disqualifying a conservatee from voting if he or she  
            completes an affidavit of voter registration with reasonable  
            accommodations.  In addition, this bill provides that a person  
            is presumed competent to vote regardless of his or her  
            conservatorship status and clarifies the judicial procedures  
            through which an individual with a disability or under a  
            conservatorship would lose his or her ability to vote.   
            Finally, this bill requires a court, in order to deem a person  
            mentally incompetent and disqualified from voting, to make a  








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            finding of clear and convincing evidence that the person  
            cannot communicate, with or without reasonable accommodations,  
            a desire to participate in the voting process, as specified.
          4)Federal Law:  The ADA was signed into law on July 26, 1990, by  
            President George H. W. Bush. This law forbids discrimination  
            in both public and private settings against anyone with  
            disabilities.  In short, the ADA covers anyone with an  
            impairment that substantially limits any major life activity.   
            Local and state governments, private sector employers,  
            transportation programs, and public and privately owned  
            accommodations are all subject to its rulings. 



            Title II of the ADA provides that discrimination by state or  
            local government agencies is prohibited by the ADA and  
            requires that all governmental services or activities be made  
            available and accessible to people with disabilities. These  
            services include communication and public transportation  
            systems.  Under Title II, a "public entity shall make  
            reasonable modifications in policies, practices, or procedures  
            when the modifications are  necessary to avoid discrimination  
            on the basis of disability, unless the public entity can  
            demonstrate that making the modifications would fundamentally  
            alter the nature of the service, program, or activity."   
            According to the proponents, California probate courts have  
            typically made a pro forma judicial finding that an individual  
            is unable to complete a voter registration affidavit and there  
            are often no specific findings regarding competency to vote,  
            and no consideration of reasonable accommodations that would  
            enable a disabled individual to complete the voter  
            registration affidavit.  





          5)American Bar Association:  In 2007, the American Bar  
            Association (ABA) submitted a report to the ABA House of  








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            Delegates urging "federal, state, local, and territorial  
            governments to improve the administration of elections to  
            facilitate voting by all individuals with disabilities,  
            including people with cognitive impairments?"  The report  
            outlines a series of recommendations adopted by the ADA that,  
            among others, defines and assesses the capacity to vote, such  
            as a presumption of the right to vote, an assessment of a  
            person's ability to communicate their desire to participate in  
            the voting process, and a clear and convincing evidence  
            standard.  Proponents argue that California law falls short of  
            ABA's recommended standards by: 1) not presuming a person's  
            right to vote regardless of conservatorship status; 2) relying  
            on the ability to complete a voter registration affidavit  
            rather than an assessment of whether a person can communicate  
            a specific desire to participate in the voting process; and 3)  
            not requiring that a person's disqualification from voting be  
            established by clear and convincing evidence.  

          6)Arguments in Support:  The sponsor of this bill, the American  
            Civil Liberties Union of California, writes:


               SB 589 will align California with the due process  
               protections and standard for assessing competency to vote  
               recommended by the American Bar Association.  Under SB 589,  
               conservatees will retain their right to vote unless it is  
               shown by clear and convincing evidence that the individual  
               cannot communicate a desire to participate in the voting  
               process.  SB 589 will also conform California law to  
               federal law by stating that people with disabilities are  
               entitled to reasonable accommodations while registering to  
               vote.  These important shifts will help protect the voting  
               rights of disabled conservatees.  



               The current process for assessing whether disabled  
               conservatees keep their right to vote is inadequate, does  
               not comply with federal law, and places disabled  








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               individuals at risk of being disenfranchised without the  
               due process protections we would expect with a fundamental  
               right at stake. California judicial 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. 
          7)Double Referral:  This bill is double referred to the Assembly  
            Judiciary Committee.  


          













          REGISTERED SUPPORT / OPPOSITION:


          Support


          American Civil Liberties Union of California (sponsor)


          AIDS Legal Referral Panel









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          Association of Regional Center Agencies


          Autistic Self Advocacy Network of Los Angeles


          Disability Rights California


          League of Women Voters of California


          Secretary of State Alex Padilla


          State Council on Developmental Disabilities




          Opposition


          None on file.
                                                                          



          Analysis Prepared by:Nichole Becker / E. & R. / (916)  
          319-2094
















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