BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Alex Padilla, Chair
BILL NO: AB 2093 HEARING DATE: 6/17/14
AUTHOR: GROVE ANALYSIS BY: Frances Tibon
Estoista
AMENDED: 5/13/14
FISCAL: NO
SUBJECT
Petitions: filings
DESCRIPTION
Existing law provides that the initiative is the power of the
electors to propose statutes and amendments to the California
Constitution and to adopt or reject them.
Existing law provides that a referendum is the power of the
electors to approve or reject statutes except urgency statutes,
statutes calling elections, and statutes providing for tax
levies or appropriations for usual current expenses of the
State.
Existing law requires a petition for a proposed statewide
initiative to be filed with the county elections official not
later than 150 days from the official summary date, and also
prohibits a county elections official from accepting a petition
for the proposed initiative measure after that period.
Existing law requires a petition for a proposed statewide
referendum to be filed with the county elections official not
later than 90 days from the date of the enactment of the bill,
and further prohibits a county elections official from accepting
a petition for the proposed referendum after that period.
Existing law prohibits a petition for a proposed initiative or
referendum from being circulated for signatures prior to the
official summary date.
Existing law requires the Legislature to provide the manner in
which petitions must be circulated, presented, and certified,
and measures submitted to the electors.
Existing law permits an act to be performed upon the next
business day if the last day for the performance of any act
provided for or required by the Elections Code is a holiday, as
defined.
This bill permits a statewide initiative or referendum petition,
if the last day to file a petition is a holiday, as defined by
current law, to be filed with the county elections official on
the next business day.
This bill provides this act it shall not be construed to affect
any matter pending in the courts of this state on the date this
act is enacted.
This bill makes the following Legislative findings and
declarations:
Under the California Constitution, an initiative or
referendum measure may be proposed by presenting to the
Secretary of State (SOS) a petition containing a specified
number of signatures. The California Constitution requires
that a petition for a referendum measure be submitted within
90 days of the date of enactment of the statute that is the
subject of the referendum, and state law requires that a
petition for an initiative measure be submitted within 150
days of the date of the circulating title and summary
furnished by the Attorney General.
In some instances, the final day to submit an initiative or
referendum petition falls on a holiday, when the offices of
state and county elections officials are closed. In those
circumstances, the proponents of an initiative or referendum
measure are faced with the choice of either submitting the
petition prior to the holiday, in which case the period to
gather signatures would be reduced, or submitting the
petition after the holiday, in which case the proponents
would risk rejection of the petition as untimely.
While the California Constitution specifies a period of 90
days to gather signatures for a referendum measure, it gives
no guidance as to how to construe the 90-day period in those
instances in which the final day falls on a holiday.
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The courts of this state have long held that the initiative
and the referendum are sacred rights of the people and
provisions of law shall be liberally construed to give full
effect to the powers of initiative and referendum.
The framers of the California Constitution did not intend
that the powers of initiative and referendum should be
frustrated by the mere happenstance that the final day to
submit a petition falls on a holiday.
It is a general and well-accepted rule of law that, when the
last day to perform an act falls on a holiday, the time in
which to perform that act is extended to the next business
day.
It is the intent of the Legislature in enacting this act to
preserve the people's rights of initiative and referendum by
clarifying that, in those instances in which the final day to
submit a petition falls on a holiday, the proponents of the
initiative or referendum measure may submit the petition on
the next business day following the holiday.
BACKGROUND
Secretary of State's Current Initiative and Referendum
Practices : Statewide initiatives and referenda have distinctly
different petition filing deadline requirements. Current state
law requires a petition for a proposed statewide initiative to
be filed with the county elections official not later than 150
days from the official summary date, and prohibits a county
elections official from accepting a petition for the proposed
initiative measure after that period. Additionally, Elections
Code Section 15 permits an act to be performed upon the next
business day if the last day for the performance of any act
provided for or required by the Elections Code is a holiday, as
defined. As a result, it has been the longstanding practice
that when a deadline for a proposed initiative measure falls on
a weekend or holiday, the deadline rolls forward to the next
business day. However, this only applies to dates set in
statute in the Elections Code, not to deadline dates set forth
in the California Constitution.
Because the deadlines for statewide referendum are in the
California Constitution, it is unclear whether the Legislature,
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by state statute, can extend deadlines established by the
Constitution. As a result, it has been the longstanding
practice for the SOS, should a filing deadline fall on a
weekend, to request county registrars to briefly open their
offices on the weekends. According to the SOS's court filings,
at the request of the petitioner, the SOS coordinated a
conference call with 17 county registrars requesting them to
briefly open on Sunday for the filing of the referendum
petitions. The petitioner did not request Sunday filings for
Mono and Tulare counties. By not making the same request of
Mono and Tulare counties, the petitioner assumed the risk that
petitions would not be timely filed in those counties.
COMMENTS
1. According to the Author : The courts of this state have long
held that the initiative and the referendum are sacred rights
of the people. Most recently, [o]n January 3 of this year, a
Superior Court Judge ruled in Gleason v. Bowen that the
Secretary of State violated California law by refusing to
count petition signatures for a referendum filed in two
counties which had refused delivery of petitions or were
closed on the last business day before the 90-day filing
deadline. The court ruled that by attempting to deliver
petitions to county registrars within the 90 days, supporters
had substantially complied with their legal requirements, and
that the real deadline in this particular case should have
been the following Tuesday due to the intervening holiday
weekend.
In his ruling, the Judge cited a 1915 decision by the state
Supreme Court which stated that referendum power "should be
liberally construed and should not be interfered with by the
courts except upon a clear showing that the law is being
violated." ( Laam v. McLaren ). The Judge further ruled that
he "sees no basis to effectively diminish the people's
referendum power here by giving Petitioner only 88 days to
collect signatures and submit her petition to elections
officials."
An initiative or referendum effort should not be hindered and
reduced merely because the final day to submit a petition
happens to land on a holiday.
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By passing AB 2093, this point will be expressed clearly in
statute, reducing the possibility of additional confusion and
disagreement over initiative and referendum petition dates.
2. Constitutionality : In 2013, the Legislature passed and the
Governor signed AB 1266 (Ammiano), Ch. 85, Statutes of 2013,
which amended the Education Code to allow pupils to
participate in school activities and use facilities based on
gender identity. Petitioners sought to qualify a referendum
asking voters to reject AB 1266 and the petitioner filed a
request for title and summary for a referendum of the
statute. The title and summary was issued on August 26,
2013, along with the circulating and filing schedule for the
referendum. Article II, section 9 of the California
Constitution requires a petition for a referendum to be
presented to the SOS within 90 days after the enactment date
of the statute. State law implements this constitutional
provision and requires a petition for a proposed referendum
measure to be filed with the county elections official not
later than 90 days from the date the legislative bill was
chaptered by the SOS. As a result, the referendum filing
scheduled stated that the last day to file referendum
petitions with the county elections officials was Sunday,
November 10, 2013. However, the 90 day requirement was
complicated in this instance because the 90th day fell on a
Sunday and the following day, November 11th, was a holiday
(Veteran's Day), when counties offices were not open. Due to
the holiday and the closure of county offices, referendum
petitions from Mono and Tulare counties were not submitted
within the 90 day deadline. Consequently, the SOS refused to
accept petitions submitted to Mono and Tulare Counties on the
grounds that the petitioner's filings were untimely and
submitted after the November 10th deadline.
Earlier this year, a lawsuit was filed against the SOS
challenging the rejected referendum petition signatures and
requesting the court to require the SOS to accept, file, and
process, as timely, the petitions delivered to Mono and
Tulare counties. In the lawsuit, the petitioner asserted
that Elections Code Section 15 permits any act, if the last
day for the performance of any act provided for or required
by the Elections Code is a holiday, to be performed upon the
next business day. As a result, the petitioner argued that
under the above rule the petitioner had until Tuesday,
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November 12th to file her petitions with the county election
officials and that Tulare and Mono counties had a ministerial
duty, under the California Constitution, to accept the
petition materials up to, and until the expiration of the 90
day deadline. In addition, the petitioner argued that the
doctrine of "substantial compliance" applies to the
constitutional requirements pertaining to the referendum
process. The petitioner further argued that the petitioner
substantially complied with the 90 day filing limit so that
her failure to actually file the Mono and Tulare county
petitions within that time limit should be forgiven and if
there was a departure from the constitutional requirements it
was minor and did not undermine or frustrate the basic
purposes by the statutory requirements in ensuring the
integrity of the initiative or referendum process.
The Superior Court ruled in favor of the petitioner's request
for a Writ of Mandate directing the SOS to accept, file, and
process as timely the petitions delivered by the petitioner
to Mono and Tulare Counties. In the ruling, the judge cited
a 1915 decision by the state Supreme Court which stated that
referendum power "should be liberally constructed and should
not be interfered with by the courts except upon clear
showing that the law is being violated." ( Laam v. McLaren
(1915) 28 Cal.App.632, 638.) The SOS has since appealed the
court's ruling and this issue is still pending in the courts.
3. Related Legislation : SB 1253 (Steinberg) makes several
changes to the initiative process including extending the
timeframe allowed for circulating a petition. SB 1253 is
scheduled for hearing in the Assembly Elections and
Redistricting Committee on June 24, 2014.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 6-0
Assembly Floor: 74-0
POSITIONS
Sponsor: Author
Support: Howard Jarvis Taxpayers Association
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Oppose: None received
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