BILL ANALYSIS �
SB 202
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Date of Hearing: September 9, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 202 (Hancock) - As Amended: September 8, 2011
SENATE VOTE : (vote not relevant)
SUBJECT : Elections: ballot measures.
SUMMARY : Moves ACA 4 of the 2009-2010 Regular Session from the
June 2012 statewide primary election ballot to the November 2014
statewide general election ballot. Provides that state
initiative and referendum measures that qualify for the ballot
on or after July 1, 2011, shall appear on the ballot only at the
November statewide general election or at a statewide special
election. Specifically, this bill :
1)Moves ACA 4 of the 2009-2010 Regular Session from the June
2012 statewide primary election ballot to the November 2014
statewide general election ballot. Repeals a requirement that
specified language be used for the ballot label and ballot
title and summary of ACA 4 at the election when it appears on
the ballot.
2)Defines "general election," for the purposes of provisions of
the state constitution that specify when a qualified state
initiative or referendum measure will appear on the ballot, to
mean only the election held throughout the state on the first
Tuesday after the first Monday in November of each
even-numbered year. Provides that this definition applies
with respect to an initiative or referendum measure that is
certified for the ballot on or after July 1, 2011.
EXISTING LAW :
1)Requires ACA 4 of the 2009-2010 Regular Session to be
submitted to the voters at the 2012 statewide presidential
primary election.
2)Requires the ballot label for ACA 4, when that measure appears
on the ballot, to read as follows:
'RAINY DAY' BUDGET STABILIZATION FUND. Changes the budget
process. Could limit future deficits and spending by
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increasing the size of the state 'rainy day' fund and
requiring above-average revenues to be deposited into it,
for use during economic downturns and other purposes.
3)Requires the ballot title and summary for ACA 4, when that
measure appears on the ballot, to read as follows:
STATE BUDGET. CHANGES CALIFORNIA BUDGET PROCESS. LIMITS
STATE SPENDING. INCREASES 'RAINY DAY' BUDGET STABILIZATION
FUND. Increases amount of potential savings in the state
'rainy day' fund from 5% to 10% of the General Fund.
Requires 3% of the general revenues to be deposited each
year into the state 'rainy day' fund, except when revenues
drop below last year's budget, adjusted for population and
inflation, and other limited purposes, including for a
declared emergency. Once the state 'rainy day' fund becomes
full, additional revenues can only be used for one-time
expenses like infrastructure, debt repayment, or retained
in the state 'rainy day' fund.
4)Requires the Attorney General (AG) to prepare a ballot title
and summary and a ballot label for each measure that will be
submitted to the voters of the state.
5)Requires the Secretary of State (SOS) to submit a qualified
state initiative measure to the voters at the next general
election held at least 131 days after it qualifies or at any
special statewide election held prior to that general
election. Permits the Governor to call a special statewide
election for the measure.
6)Requires the SOS to submit a qualified state referendum
measure to the voters at the next general election held at
least 31 days after it qualifies or at any special statewide
election held prior to that general election. Permits the
Governor to call a special statewide election for the measure.
7)Defines "general election" as either of the following:
a) The election held throughout the state on the first
Tuesday after the first Monday in November in each
even-numbered year; or,
b) Any statewide election held on one of the following
dates:
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i) The second Tuesday of April in each even-numbered
year;
ii) The first Tuesday after the first Monday in March of
each odd-numbered year;
iii) The first Tuesday after the first Monday in June in
each year; and,
iv) The first Tuesday after the first Monday in November
of each year.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Bill : According to the author:
Ballot initiatives have far reaching impact on our
schools, the environment, and our business community.
But few voters get to make that decision under the
current process of allowing ballot initiatives be
decided in the June Primary Elections.
Most initiative states-18 out of 24-do not allow
initiatives to be placed on primary or special
election ballots because of low-voter turnout in these
elections.
The problem is clear: primary and special elections
draw far fewer voters than general elections, meaning
that such elections often do not accurately represent
the needs, priorities, and desires of the population
at large.
Turnout in California's primary elections has hovered
around only 30% of eligible voters since the late
1980s. The two lowest primary election turnouts in
California history took place in 2002 and 2006, with
25% and 23% participation of eligible voters
respectively.
�SB 202 will] clarify the Elections Code to limit
initiatives to the General Election, which is
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consistent with the State Constitution.
Presently, the �California] Constitution states that
an initiative that qualifies for the ballot shall be
submitted to the voters "at the next general election
held at least 131 days after it qualifies." Clarifying
the Elections Code to limit initiatives to elections
held in November of even numbered years (i.e., general
election) is consistent with the requirements of the
Constitution and eliminates any doubt as to the
validity of the current statute.
�SB 202 will] clarify the Elections Code to
consolidate initiatives to the General Election to
save taxpayers money and free up needed ballot space.
Placing all initiatives on the November general
election will result in shorter ballots in many
counties for the June primary. With the new top two
primary systems, the June ballots will become longer,
as under top two all candidates are listed on the same
ballot. Eliminating the need to add ballot measures
will likely result in fewer ballot pages for some
counties, saving counties both crucial space on the
ballot and the cost of printing extra pages.
2)ACA 4 Election Date, Ballot Label, and Ballot Title and
Summary : ACA 4 (Gatto and Niello), Res. Chapter 174, Statutes
of 2010, proposes various changes to the state budget process
and to the state's Budget Stabilization Fund. As with all
constitutional amendments, ACA 4 requires the approval of the
voters to take effect.
Among other provisions, AB 1619 (Budget Committee), Chapter 732,
Statutes of 2010, requires ACA 4 to be submitted to the voters
at the 2012 statewide presidential primary election. This
bill repeals the provisions of AB 1619, and instead provides
for ACA 4 to be submitted to the voters at the November 4,
2014, statewide general election.
In addition to specifying the election at which ACA 4 would
appear on the ballot, AB 1619 also specified the text to be
used as the ballot label and as the ballot title and summary
for ACA 4 when it appears on the ballot. Subsequent to the
Legislature's actions on AB 1619, the Court of Appeal of the
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State of California for the Third Appellate District ruled in
Howard Jarvis Taxpayers Association, v. Bowen (2011) 192 Cal.
App. 4th 110, that the Political Reform Act (PRA) requires the
AG to prepare the ballot label and ballot title summary for
state ballot measures, and that an attempt by the Legislature
to override that requirement for any particular measure was
not a valid amendment of the PRA that the Legislature had the
authority to enact without the approval of voters. In light
of this decision, the ballot label and ballot title and
summary prepared by the Legislature for ACA 4 appear to be
invalid.
This bill repeals the provisions of AB 1619 that specify the
language to be used for the ballot label and ballot title and
summary for ACA 4. As a result, the ballot label and ballot
title and summary for ACA 4 would be prepared by the AG
pursuant to provisions of existing law that govern the
preparation of ballot labels and ballot titles and summaries
for state measures generally.
3)History of Initiatives on Primary Election Ballots : Since the
initiative and referendum processes were created in 1911, the
state Constitution has always provided that qualified measures
will appear on the ballot at the next general election held
after a specified time period, or at any special election
called by the Governor held prior to that general election.
In fact, for the first 60 years that the initiative and
referendum processes were in effect in California, initiative
and referendum measures did not appear on the ballot regularly
at primary elections. Prior to the 1972 statewide primary
election, initiatives and referenda had appeared on the ballot
at a primary election only twice (two referenda in 1932 and
one initiative in 1970), and in both those cases, the measures
appeared on the ballot because a statewide special election
was called for the same date as, and was consolidated with,
the statewide primary election.
However, in 1972, the SOS placed an initiative on the ballot at
a primary election that was not consolidated with a statewide
special election for the first time. The reason for the
change in policy is unclear - although a bill enacted by the
Legislature in 1971 allowed measures submitted to the voters
by the Legislature to appear on primary election ballots (AB
1429 (Waxman), Chapter 1775, Statutes of 1971), there was no
similar change made to provisions of state law governing the
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initiative or referendum process. Since placing an initiative
on the primary election ballot in 1972, the office of the SOS
has continued the practice of including initiatives on the
ballot at primary elections.
According to a report by the Center for Governmental Studies
(Democracy by Initiative: Shaping California's Fourth Branch
of Government, Second Edition, 2008), the practice of placing
initiatives on primary election ballots may have been the
result of an administrative error. In March 1980, the Chief
Counsel to the SOS, in response to an inquiry, noted that an
initiative measure appeared on the ballot at the primary
election in 1970 because a special election was called and
consolidated with the primary election. The response went on
to note that "�t]he 1970 precedent has been followed routinely
in subsequent years with numerous ? people-proposed measures
appearing on primary election ballots," although unlike in
1970, initiatives appeared on the ballot at future primary
elections even when no special election was consolidated with
the primary election. The letter went on to provide three
"legal rationales" for why the SOS's office placed initiative
measures on the ballot at primary elections. Two of those
rationales involved special elections having been called for
the same day as the statewide primary election; the third
rationale cited a court case construing the term "general
election" to include primary elections. However, the court
case specifically cited by the SOS's office in that memo
(County of Alameda v. Sweeney, (1957) 151 Cal.App.2d 505)
dealt with a section of the state Constitution that was
unrelated to the state's initiative and referendum processes.
Furthermore, that court decision was reached in 1957-15 years
before the SOS's office changed policy, and began placing
initiative and referendum measures on the ballot at primary
elections.
In fact, although it appears that the courts have not been asked
to consider a challenge to the SOS's practice of placing
initiative and referendum measures on the ballot at primary
elections, a dissenting opinion in a state Supreme Court case
raised a question about whether such a practice was consistent
with the state Constitution. In her dissenting opinion in
Brosnahan v. Eu, (1982) 31 Cal.3d 1, Chief Justice Bird noted
that the constitutionality of submitting initiatives to voters
at primary elections "would appear to be an open question."
In a footnote to her opinion, the Chief Justice wrote:
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An additional issue, not raised by parties here,
apparently has never been resolved by this court. The
Constitution requires that initiative and referendum
measures be submitted to the voters "at the next
general election" after the measures qualify, or at a
special election called by the Governor. (Cal.
Const., art. II, �8, subd. (c) and �9, subd. (c)?)
The Elections Code defines a general election as "the
election held throughout the state on the first
Tuesday after the first Monday of November in each
even-numbered year." (Elec. Code, �20.) A special
election is an election the timing of which is not
otherwise prescribed by law. (Elec. Code, �27.) The
election scheduled for June of 1982 is a regularly
scheduled "direct primary" (see Elec. Code, �23) - not
a special election or a general election. Thus, the
constitutionality of submitting an initiative to the
voters at a June primary election would appear to be
an open question.
Subsequent to the Supreme Court's decision in Brosnahan v. Eu,
the Legislature changed the statutory definition of "general
election" to include regularly scheduled statewide primary
elections in AB 1466 (Statham), Chapter 405, Statutes of 1993.
Legislative records indicate that the purpose of this
provision in AB 1466 was protect against a challenge to a bond
measure that was scheduled to appear on the statewide special
election ballot in November 1993, since the state constitution
requires certain measures that authorize indebtedness to be
approved by the voters at a general election or at a direct
primary election. By the time the Legislature approved AB
1466, changing the statutory definition of the term "general
election," state initiative and referendum measures had been
appearing on the ballot at primary elections for more than 20
years. Thus, although nothing in the Legislative history of
AB 1466 indicates that the bill was intended to sanction the
SOS's practice of submitting state initiative and referendum
measures to voters at statewide primary elections, that bill
nonetheless may have had the effect of providing a legal basis
for that practice.
This bill defines the term "general election," for the
purposes of the provisions of the California Constitution that
govern when state initiatives and referenda appear on the
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ballot, to mean only the election held throughout the state on
the first Tuesday after the first Monday in November of each
even-numbered year. Initiative and referendum measures could
still appear on the ballot at statewide primary elections, but
only if a statewide special election was called for the same
day as, and was consolidated with, the statewide primary
election.
4)Other States : According to information from the National
Conference on State Legislatures, only four (Alaska,
California, North Dakota, and Oklahoma) of the 24 states that
have the initiative process allow initiatives to be placed on
the ballot at a primary or special election.
5)Initiatives Qualified for the June 2012 Ballot : Two
initiative measures that have already qualified are scheduled
to appear on the ballot at the June 2012 statewide primary
election. Those measures, relating to term limits and
cigarette taxes, would be unaffected by this bill, because
those measures were certified for the ballot in 2010, and this
bill provides that the new definition of "general election"
applies to initiative or referendum measures that are
certified for the ballot on or after July 1, 2011.
6)Arguments in Opposition : The California Broadcasters
Association, in opposition to the provisions of this bill that
would prohibit initiative and referendum measures from
appearing on the ballot at statewide primary elections, argues
that it is in the public interest to continue to have ballot
measures on the June ballot. The Broadcasters raise the
following concerns with this bill:
Ad dollars from advertising on ballot measures
fund jobs, and allow broadcasters to perform public
service work that communities rely on.
Moving ballot measures to the November ballot
could overwhelm voters, and leave little or no ad
availabilities for local and state candidates.
This bill could "consume advertising inventory
leading up to the November election."
The new "top two" primary system could have a
dramatic effect on turnout, potentially undermining one
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of the arguments in favor of the bill.
1)Prior Version : The prior version of this bill, which was
approved by this committee, proposed to increase the fee to
submit a proposed state ballot initiative to the AG from $200
to $2,000. After this bill was amended on the floor, it
subsequently was re-referred to this committee pursuant to
Assembly Rule 77.2.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
California Broadcasters Association
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094