BILL ANALYSIS Ó
SB 589
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Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
589 (Block) - As Amended June 18, 2015
SENATE VOTE: 27-10
SUBJECT: VOTING: VOTER REGISTRATION: INDIVIDUALS WITH
DISABILITIES AND CONSERVATEES
KEY ISSUE: should california enact a number of provisions to
ensure that persons who are subject to conservatorship are
presumed competent to vote and are not deemed incompetent unless
there is clear and convincing evidence, consistent with the
federal voting rights act, that the person cannot communicate a
desire to participate in the voting process even when provided
with reasonable accommodations?
SYNOPSIS
This non-controversial but important voting rights bill seeks to
ensure that California state law complies with the Federal
Voting Rights Act by removing requirements for filling out an
affidavit of voter registration, creating a presumption that all
Californians are presumed to be competent, regardless of being
subject to a conservatorship, and establishing a process for
courts to review past determinations that conservatees are not
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competent to exercise the right to vote because they were
incapable of filling out an affidavit of voter registration.
The National Voter Registration Act of 1993 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, including any requirement that a person demonstrate the
ability to read, write, understand, or interpret any matter.
(52 U.S.C. Sec. 10501.) In July of 2014, 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 registration. The complaint
asserted that this practice constitutes a violation of the VRA's
prohibition on use of a test or device as a prerequisite for
voter registration. The United States Department of Justice has
not yet responded to the complaint.
Last year, AB 1311 (Bradford, Chapter 591, Statutes of 2014)
clarified the voting protections for conservatees. 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. Among
other things, it would require that in order to deem a person
mentally incompetent and disqualified from voting, a court must
make a finding of clear and convincing evidence that the person
cannot communicate, with or without reasonable accommodations, a
desire to participate in the voting process. This bill was
recently heard by the Assembly Elections and Redistricting
Committee, where it passed by a vote of 6 to zero. Sponsored by
the ACLU, this bill is supported by a number of mental health
and disability advocacy organizations and has no opposition.
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SUMMARY: Enacts a number of provisions to ensure that persons
who are subject to conservatorship are presumed competent to
vote and those who are capable of completing affidavits of
registration with reasonable accommodations in order to register
to vote are able to do so. Specifically, this bill:
1)Makes legislative findings that federal disability
nondiscrimination laws, including Title II of the federal
American with Disabilities Act of 1990 (Public Law 101-336),
entitle people with disabilities to reasonable accommodations,
as needed, to participate in public activities such as voting.
2)Specifically allows an individual with a disability who is
otherwise qualified to vote to complete an affidavit of
registration with reasonable accommodations as needed.
3)Specifically authorizes an individual with a disability who is
under a conservatorship to be registered to vote if he or she
has not been disqualified from voting.
4)Establishes a legal presumption that a person is presumed
competent to vote regardless of his or her conservatorship
status.
5)Allows the presumption of competence to be overcome only if
the court finds by clear and convincing evidence that the
person cannot communicate, with or without reasonable
accommodations, a desire to participate in the voting process,
regardless of his or her ability to complete the affidavit of
voter registration.
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6)Establishes a process for the review, at a regularly scheduled
yearly or biennial review of the conservatorship, of any prior
determination that a person was disqualified from voting by
reason of being incapable of communicating, with or without
reasonable accommodations, a desire to participate in the
voting process, or by reason of being incapable of completing
an affidavit of voter registration, and provides for a hearing
to determine if, by clear and convincing evidence, the person
cannot communicate, with or without reasonable accommodations,
a desire to participate in the voting process.
7)Requires, after a court review, unless the person is found to
be incapable of communicating that desire, the court to find
that the person's right to register to vote shall be restored,
and the court shall so notify the county elections official.
EXISTING LAW:
1)Declares, under the National Voter Registration Act of 1993,
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).)
2)Prohibits, under federal law, 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. The term
"test or device" includes, among other things, any requirement
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that a person demonstrate the ability to read, write,
understand, or interpret any matter. (52 U.S.C. Sec. 10501.)
3)Declares, in the Voting Accessibility for Elderly and
Handicapped Act, that it is federal intent to promote the
fundamental right to vote by improving access for handicapped
and elderly individuals to registration at 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.)
4)Provides, in federal law, 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.)
5)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.)
6)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.
(Elections Code Section 2102. All further statutory
references are to this code, unless otherwise indicated.)
7)Requires the affidavit of registration to show facts necessary
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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. (Section 2150.)
8)Provides that a person shall be deemed mentally 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. (Section
2208.)
9)Requires, for specified conservatorship proceedings, during
yearly or biennial reviews of the conservatorship, 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. (Section 2209.)
10)Requires the court investigator, when determining whether a
conservatorship should be established, to determine, among
other things, whether the proposed conservatee is not capable
of completing an affidavit of voter registration. (Probate
Code Section 1826.)
11)Requires the court, prior to the establishment of a
conservatorship, 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
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completing an affidavit of voter registration. (Probate Code
Section 1828.)
12)Requires the court investigator, upon subsequent court review
of a conservatorship, to determine whether the conservatee is
not capable of completing an affidavit of voter registration
and 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. (Probate
Code Sections 1851, 1910.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: 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
cannot communicate, with or without reasonable
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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.
State and Federal Protection of the Right to Vote. The National
Voter Registration Act of 1993 guarantees to all 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).) The 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,
including any requirement that a person demonstrate the ability
to read, write, understand, or interpret any matter. (52 U.S.C.
Sec. 10501.)
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.)
Article II, Section 2 of the California Constitution permits a
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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 who are mentally
incompetent, 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 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.
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. 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.
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
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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.
Recent Litigation and Legislative Response. In July of 2014,
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 the court's application of existing state law that
deemed ineligible to vote conservatees who were not capable of
completing an affidavit of voter registration. The complaint
asserted that this practice constituted a violation of the VRA's
prohibition on the use of a test or device as a prerequisite to
voter registration. The United States Department of Justice has
not yet responded to the complaint.
Last year, in response to the Spectrum Institute complaint to
the U.S. Department of Justice, AB 1311 (Bradford, Chapter 591,
Statutes of 2014) clarified the voting rights of conservatees.
This bill would further clarify the conservatee voting
protections enacted in AB 1311 by establishing a standard for
determining when a disabled, conserved individual is not
competent to participate in voting, and would establish a
process for evaluating the competency of conservatees who were
previously deemed incompetent to vote.
According to the author and supporters of this bill, AB 1311 was
helpful in clarifying current law to explicitly allow certain
accommodations to conservatees in completing the voter
registration affidavit, but did not 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.
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The Presumption of Competency. 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 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.
Due Process Protections: Court Process for Review in New and
Renewed Conservatorships. 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
conservatorship 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.
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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 more evidence than
the common standard of proof (preponderance of the evidence) 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.
For previously established conservatorships (in which outdated
standards were likely applied to determine the conservatee's
ability to vote based upon his or her ability to fill out the
affidavit of voter registration form), the bill would require
that the court investigator, during the yearly or biennial
review of the conservatorship, to review the person's capability
of communicating, with or without reasonable accommodations, his
or her desire to participate in the voting process.
The American Civil Liberties Union of California (ACLU), sponsor
of this bill, discusses the importance of the due process
protections in this bill:
The 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 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
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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.
Likewise, the Autistic Self Advocacy Network of Los Angeles
observes that SB 589 will protect the voting rights of disabled
people who have been conserved:
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, with or without reasonable
accommodations, a desire to participate in the voting
process. This important shift will help protect the voting
rights of disabled conservatees.
By establishing a presumption of competency, a clear and
convincing standard for court determinations, and a process for
review of past determinations of incompetency, this bill appears
likely to not only protect the due process rights of
conservatees, but also reduce the likelihood that conservatees
will be unfairly disenfranchised.
REGISTERED SUPPORT / OPPOSITION:
Support
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American Civil Liberties Union (sponsor)
Association of Regional Center Agencies
Autistic Self Advocacy Network of Los Angeles
California Advocates for Nursing Home Reform
Disability Rights Advocates
Disability Rights California
AIDS Legal Referral Panel
Disability Rights Advocates
The ARC & United Cerebral Palsy California Collaboration
Cal-TASH
Shasta County Clerk/Registrar of Voters, Cathy Darling Allen
Spectrum Institute
Opposition
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None on file
Analysis Prepared by:Alison Merrilees / JUD. / (916)
319-2334