BILL ANALYSIS Ó
SB 589
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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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