BILL ANALYSIS
SB 211
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Date of Hearing: July 1, 2010
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 211 (Simitian) - As Amended: June 24, 2010
SENATE VOTE : (vote not relevant)
SUBJECT : Elections: special elections.
SUMMARY : Revises procedures for holding special elections to
fill vacancies in the California congressional delegation when a
large number of vacancies occur in Congress. Specifically, this
bill :
1)Reduces, from one-fourth of the members to 101 members, the
number of vacancies that must occur in the United States (US)
House of Representatives to trigger an expedited special
election schedule for filling any vacancy in the California
congressional delegation.
2)Provides that if an expedited special election schedule is
triggered as described above, the special election shall be
held within 49 days following the announcement of the vacancy
by the Speaker of the US House of Representatives or, if the
Speaker does not announce the vacancy, on a Tuesday not more
than 49 days following the issuance of an election
proclamation by the Governor.
3)Moves, from 28 days before the election to 30 days before the
election, the date at which a voter may submit an application
for a vote by mail (VBM) ballot for a special election held on
an expedited schedule as described above.
4)Allows a VBM ballot cast by a US citizen who is residing
overseas to be counted if it arrives up to 45 days after the
date on which the election official transmitted the ballot to
the voter, instead of by the close of the polls on election
day.
EXISTING STATE LAW :
1)Requires a special election held to fill a vacancy in Congress
to be filled on an expedited timetable if the vacancy was
caused by a catastrophe. Defines a "catastrophe," for these
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purposes, as a natural or man-made event that causes a vacancy
in at least one-fourth of the total number of offices of the
US House of Representatives, including at least one office
representing California, or at least one-fourth of the total
number of offices representing California.
2)Requires the Governor to issue a proclamation calling a
special election to fill a vacancy in the US House of
Representatives that is caused by a catastrophe, as defined,
within seven days of the catastrophe.
3)Requires a special election held to fill a vacancy in the US
House of Representatives that is caused by a catastrophe, as
defined, to be conducted on a Tuesday at least 56 days, but
not more than 63 days, following the issuance of an election
proclamation by the Governor. Allows the special election to
be conducted within 90 days of the proclamation in order that
the special election may be consolidated with the next
regularly scheduled statewide election or local election
occurring wholly or partially within the same territory in
which the vacancy exists, provided that the voters eligible to
vote in the local election comprise at least 50 percent of all
the voters eligible to vote on the vacancy.
4)Provides that when a special election is held to fill a
vacancy in the US House of Representatives that is caused by a
catastrophe, as defined, no special primary election is held.
Permits nomination papers to be circulated between the 32nd
day and the 46th day before the special election. Permits an
application for a VBM ballot to be submitted not more than 28
days prior to the special general election, but provides that
applications received by the elections official prior to the
28th day prior to the election shall be held by the official
and processed following the 28th day prior to the election.
EXISTING FEDERAL LAW :
1)Requires, in extraordinary circumstances, a special election
to be held to fill a vacancy in the US House of
Representatives not later than 49 days after the Speaker of
the House announces that the vacancy exists unless, during the
75-day period which begins on the date of the announcement of
the vacancy, a regularly scheduled general election for the
office involved is to be held, or another special election for
the office involved is already scheduled for that 75-day
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period. Specifies that "extraordinary circumstances" exist,
for these purposes, when the Speaker of the House of
Representatives announces that there are more than 100
vacancies in the House.
2)Provides that the determination of candidates who will appear
on the ballot for a special election held under extraordinary
circumstances, as described above, shall be made pursuant to
one of the following:
a) By nominations made by the qualified political parties
in the State not later than 10 days after the Speaker
announces that the vacancy exists; or,
b) By any other method the State considers appropriate,
including holding primary elections, as long as the special
general election will be held within the deadline specified
above.
3)Provides that in conducting a special election held under
extraordinary circumstances, as described above, the State
shall ensure to the greatest extent practicable (including
through the use of electronic means) that absentee ballots for
the election are transmitted to absent uniformed services
voters and overseas voters not later than 15 days after the
Speaker of the House of Representatives announces that the
vacancy exists. Requires the state to accept and process any
otherwise valid ballot or other election material from an
absent uniformed services voter or overseas voter so long as
the ballot or other material is received by the appropriate
State election official not later than 45 days after the State
transmits the ballot or other material to the voter.
FISCAL EFFECT : Unknown. State-mandated local program; contains
reimbursement direction.
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COMMENTS :
1)Purpose of the Bill : According to the author:
In 2002 Senator Simitian introduced and the Governor signed
into law AB 2760 which laid out procedures to expeditiously
hold elections to fill vacancies in the United States House
of Representatives due to a catastrophic event.
Subsequently, in 2006 Congress passed the Legislative
Branch Appropriations Act which included Representative
Sensenbrenner's (R-Wis) H.R. 841, the Continuity of
Representation Act. This act laid out the most current
Federal laws for filling vacancies in the House of
Representatives if there were 101 or more vacancies due to
a catastrophe such as a terrorist attack or natural
disaster. Passage of the Legislative Branch Appropriations
Act had the result of making the timeline to hold elections
provided by Senator Simitian's AB 2760 divergent from
Federal law.
SB 211 conform[s] state law to federal law regarding the
procedures and timelines for holding elections to fill
vacancies in the House of Representatives if 101 members,
one of which represents California, or if a quarter of the
California Congressional delegation are wiped out do to a
catastrophic event.
SB 211 will promote continuity of government in the face of
a natural disaster, act of war or other catastrophic event.
In the event of an act of this nature, the ability to
convene a working Congress in a timely fashion may prove
critical to national security, public confidence, and/or
economic recovery. An established expedited Congressional
election process will help to ensure our democracy stays
strong in the aftermath of a natural disaster or act of
war. A full strength California delegation will help to
ensure our interests are taken into account as spending and
resource allocation decisions are made.
Conforming California law to Federal law regarding
expedited special elections is imperative as these tight
timelines reflect the necessity for prompt action given the
severe loss of life triggering the application of SB 211.
One of the lessons learned as a result of the September 11
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terrorist attacks is that, in the aftermath of a
catastrophic event, having established processes in place
to ensure continuity of government can help maintain order,
allow for a quick response and sustain public confidence.
2)Continuity in Representation Act and Previous Legislation : As
noted by the author above, AB 2760 (Simitian), Chapter 658,
Statutes of 2002, which was enacted in response to the
September 11, 2001 terrorist attacks, established procedures
for expedited special elections to fill vacancies in
congressional offices caused by a natural or man-made
catastrophe. Under the provisions of AB 2760, if at least
one-fourth of the seats in the US House of Representatives or
at least one-fourth of the seats in the California
congressional delegation become vacant due to a natural or
man-made catastrophe, the Governor must issue an election
proclamation to schedule a special election for any vacant
seat in the California congressional delegation within seven
days, and any such special election must be held not later
than 63 days after the issuance of a proclamation. Under
these circumstances, no special primary election is held; the
special election is a winner-take-all election in which the
candidate who receives the plurality of votes is elected,
regardless of the percentage of the vote that candidate
receives.
Subsequent to California's approval of AB 2760, the federal
government enacted the Continuity in Representation Act as
part of the Legislative Branch Appropriations Act, 2006 (H.R.
2985 of the 109th Congress). The provisions of the Continuity
in Representation Act were similar to the provisions of AB
2760, but differed on a few key details. For instance, while
the expedited special election process is triggered under AB
2760 when one-fourth of the seats in the US House of
Representatives become vacant (109 seats in the current
435-seat House), the Continuity in Representation Act requires
expedited special elections to be held whenever more than 100
seats become vacant. Additionally, while AB 2760 allows an
expedited special election to be held up to 70 days after a
catastrophe occurs (7 days for the Governor to issue an
election proclamation, and up to an additional 63 days from
that time until the election), the Continuity in
Representation Act requires special elections to be held
within 49 days, except in certain limited circumstances.
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This bill makes numerous changes to provisions of state law that
were originally enacted by AB 2760 in order to conform to the
Continuity in Representation Act.
3)Non-Conforming Changes : While this bill contains various
provisions that merely conform California law to federal law,
it is worth noting that certain provisions of this bill (and
of existing state law) are not necessary to comply with the
provisions of the Continuity in Representation Act.
For instance, existing state law requires special elections to
be held on an expedited timetable if at least one-fourth of
the seats in the California congressional delegation are
vacant, regardless of the total number of vacant seats in
Congress. As a result, existing state law requires special
elections to be held on an expedited timetable if a natural or
man-made event results in 14 of California's 53 seats in
Congress becoming vacant, even if those are the only 14 seats
in Congress that are vacant. This bill does not change that
policy, so the state would continue to be required to hold
special elections on an expedited basis if more than
one-fourth of the seats in the state's congressional
delegation became vacant, even though this is not required by
federal law.
Furthermore, while existing state and federal law allow limited
flexibility in scheduling special vacancy elections in order
that those elections can be consolidated with previously
scheduled elections, this bill proposes to eliminate that
flexibility altogether, rather than modifying state law to
conform to the timeline provided under federal law.
Specifically, existing federal law allows a special vacancy
election held under extraordinary circumstances, as described,
to be held up to 75 days after the announcement of the vacancy
if, during the 75-day period which begins on the date of the
announcement of the vacancy, a regularly scheduled general
election for the office involved is to be held, or another
special election for the office involved is already scheduled
for that 75-day period. Similarly, existing state law allows
a special vacancy election held to fill a vacancy caused by a
catastrophe, as defined, to be conducted within 90 days of the
proclamation in order that the special election may be
consolidated with the next regularly scheduled statewide
election or local election occurring wholly or partially
within the same territory in which the vacancy election
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exists, provided that the voters eligible to vote in the local
election comprise at least 50 percent of all the voters
eligible to vote on the vacancy. This bill, however, proposes
to eliminate all flexibility whatsoever with respect to
scheduling a special election to fill a vacancy caused by a
catastrophe, as defined, and instead would require all such
vacancies to be filled within 49 days, even if there was a
previously scheduled election being held within the period 50
to 75 days after the vacancy is announced. The committee may
wish to take advantage of the flexibility provided by federal
law by amending this bill to provide flexibility to schedule a
special vacancy election held under extraordinary
circumstances up to 75 days after the vacancy is announced if
there is a previously scheduled election for that office in
that 75-day period.
4)Breaking New Ground : If this bill passes, it will represent
the first time that California law has explicitly allowed any
ballot which was received after election day to be counted.
The provisions of this bill-and of federal law-allow ballots
received from overseas voters for special elections held on an
expedited timeline to be counted as long as they are received
by the elections official within 45 days after the official
transmits the ballot to the voter. If overseas voters
requested ballots shortly before election day, it is
conceivable that the elections official would have to wait a
month or more after the election for ballots to arrive before
election results could be finalized. That in turn could delay
filling the vacant seats in Congress, which seems to be
contrary to the reason for holding special elections on an
expedited timeline.
Nonetheless, because federal law provides that ballots must be
accepted from an overseas voter under these circumstances as
long as they are received within 45 days after the official
transmits the ballot to the voter, a failure by the state to
conform to federal law would not relieve the state from the
requirement to accept and count ballots received after
election day.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
SB 211
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Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094