BILL ANALYSIS
AB 909
Page 1
Date of Hearing: April 30, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 909 (Feuer) - As Amended: April 21, 2009
SUBJECT : Elections: voting.
SUMMARY : Requires polling place workers to notify each
decline-to-state (DTS) voter that he or she may request a
partisan ballot at a primary election. Specifically, this bill :
1)Requires a member of a precinct board, prior to furnishing a
ballot to a DTS voter at a partisan primary election, to
provide written notification informing the voter that he or
she may request a ballot for a political party that has
adopted a party rule allowing DTS voters to vote the ballot of
that political party at that primary election.
2)Provides that for the purposes of this bill, written
notification includes signs, placards, posters, and other
forms of written notice.
3)Requires the written notification to list each party that has
adopted a party rule allowing DTS voters to vote the ballot of
that political party at the primary election.
4)Requires this notice to be translated into every language for
which the elections official is required to provide translated
election materials for that precinct pursuant to state or
federal law.
5)Allows a DTS voter to request a partisan ballot at a primary
election either verbally or in writing.
6)Makes various technical changes.
EXISTING LAW :
1)Requires the affidavit of voter registration to inform the
person completing the affidavit that any elector may decline
to state a political affiliation.
2)Requires all voters who are DTS voters and who appear to vote
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at the polling place at a partisan primary election to be
furnished only a nonpartisan ballot unless the voter requests
a ballot of a political party that has authorized DTS voters
to vote the ballot of that political party.
FISCAL EFFECT : Unknown. State-mandated local program; contains
reimbursement direction.
COMMENTS :
1)Purpose of the Bill : According to the author:
Under existing law, prior to each primary election, county
election officials are required to mail every "decline to
state" (DTS) voter, whose name appears on the permanent
vote-by-mail (PBVM) voter list, a notice regarding voting
in the primary. The notice advises the DTS voter that he or
she may request a vote-by-mail (VBM) ballot for a
particular political party if that party permits DTS voters
to vote in their primary. The notice provides a toll-free
number, established by the Secretary of State, that the
voter can call to obtain information regarding which
political parties have adopted such a rule. However, there
is no requirement in current law to provide a similar
notice to the remaining DTS voter population.
At a polling place, unless the DTS voter requests a
partisan ballot, the voter is given a non-partisan ballot
containing only the statewide ballot measures. Of course,
without some form of notice voters will not likely
understand that they have such an option.
During the February 5, 2008, Presidential primary election,
some DTS voters were denied the chance to cast a vote for
their desired candidate due to poll worker and voter
confusion about the rights of DTS voters. In order to
avoid such confusion in the future, AB 909 requires poll
workers to inform DTS voters at the polls of their right to
request partisan ballots as provided in current law.
2)DTS Voters and Partisan Primary Elections : Proposition 198,
also known as the Open Primary Act, was approved by the voters
at the March 1996 statewide primary election with 59.5 percent
of the vote. Under the provisions of the Open Primary Act,
all persons entitled to vote in primary elections, including
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DTS voters, were permitted to vote for any candidate
regardless of the candidate's political party affiliation.
The candidate of each political party who received the most
votes became the nominee of that party at the general
election. Elections were conducted under the provisions of
the Open Primary Act for the June 1998 statewide primary
election and the March 2000 statewide primary election.
In June 2000, the United States Supreme Court ruled in
California Democratic Party v. Jones (2000), 530 U.S. 567 that
the Open Primary Act violates a political party's First
Amendment right to freedom of association. In response to the
ruling, the Legislature enacted SB 28 (Peace), Chapter 898,
Statutes of 2000. SB 28 implemented a modified closed primary
election system that permits DTS voters to participate in a
political party's primary election if authorized by that
party's rules. Elections have been conducted under the
modified closed primary election system created by SB 28 since
the March 2002 statewide primary election. At the March 2002
statewide primary election, the American Independent Party,
Democratic Party, Republican Party, and Natural Law Party
authorized DTS voters to participate in the party's primary
election. For the March 2004, June 2006, and June 2008
statewide primary elections, the American Independent Party,
Democratic Party, and Republican Party authorized DTS voters
to participate in the party's primary elections. In last
February's Presidential primary election, the American
Independent Party and the Democratic Party allowed DTS voters
to participate in the party's primary election.
Under the provisions of SB 28, a DTS voter who appears at the
polling place at a partisan primary election is provided only
with a nonpartisan ballot unless the DTS voter requests a
ballot of a political party that has authorized DTS voters to
participate in the party's primary election. While some
counties have instructed their polling place workers to offer
DTS voters the option of voting a partisan ballot, nothing in
state law requires that polling place workers proactively
offer these partisan ballots to DTS voters, and some counties
have told poll workers that they are not permitted to offer a
partisan ballot to DTS voters. In those counties, DTS voters
who don't know that they are required to specifically request
a partisan ballot at the primary election may end up voting
only a nonpartisan ballot.
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For VBM voters who are DTS voters, the VBM ballot application
contains a space in which the DTS voter can indicate the
political party ballot that he or she wants to receive for
that primary election. For permanent VBM voters who are DTS
voters, county elections officials are required to mail a
notice and application to every permanent VBM voter who is a
DTS voter prior to the primary election which the DTS voter
may return to indicate the political party ballot that he or
she wants to receive for that primary election.
This bill requires poll workers to offer partisan ballots to DTS
voters at the polling place. This provision would likely
result in a larger number of DTS voters casting partisan
ballots in primary elections.
3)Pending "Top-Two" Primary Measure : Earlier this year, the
Legislature approved SCA 4 (Maldonado), Resolution Chapter 2,
Statutes of 2009, which would amend the state constitution to
establish primary elections in which voters may vote for any
state or congressional candidate regardless of party
registration, with the two candidates receiving the most
votes, regardless of party affiliation, advancing to the
general election. SB 6 (Maldonado), Chapter 1, Statutes of
2009, makes various statutory changes to the Elections Code to
implement the "top-two" primary that would be created by SCA
4. The provisions of SB 6 will take effect only if SCA 4 is
approved by voters. SCA 4 will appear on the ballot at the
June 8, 2010 statewide primary election.
If the constitutional amendment proposed by SCA 4 is approved by
the voters in 2010, there will be only two types of races on a
primary election ballot that are partisan races - President of
the United States and party central committee. However, if
SCA 4 is approved by voters and SB 6 goes into effect, SB 6
will chapter out any changes otherwise made by this bill.
4)Joint Informational Hearing : In March 2008, in the immediate
aftermath of the Presidential primary election, this committee
held a joint informational hearing, along with the Senate
Committee on Elections, Reapportionment and Constitutional
Amendments and the Senate Select Committee on Integrity of
Elections, to discuss problems faced by voters at the 2008
Presidential Primary election. At that hearing, the
committees received testimony from witnesses on the agenda and
from a number of members of the public about DTS voters who
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were denied the opportunity to vote in the partisan primary
election of their choice because they didn't know that they
had the option of requesting a partisan ballot, because they
didn't know that they had to specifically request a partisan
ballot, or because they were told by poll workers that they
were not permitted to vote a partisan ballot.
5)Previous Legislation : This bill is similar to AB 2953 (Feuer)
of 2008. AB 2953 was vetoed by the Governor, though the
Governor did not express any policy objections to the bill.
Instead, AB 2953 was one of 136 bills that received the same
veto message. That veto message is as follows: "The historic
delay in passing the 2008-2009 State Budget has forced me to
prioritize the bills sent to my desk at the end of the year's
legislative session. Given the delay, I am only signing bills
that are the highest priority for California. This bill does
not meet that standard and I cannot sign it at this time."
REGISTERED SUPPORT / OPPOSITION :
Support
Secretary of State Debra Bowen (sponsor)
Asian Americans for Civil Rights and Equality
California Association of Clerks and Election Officials
California Teachers Association
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094