BILL ANALYSIS �
AB 2394
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Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2394 (Gorell) - As Introduced: February 21, 2014
SUBJECT : Elections: Secretary of State.
SUMMARY : Requires elections for Secretary of State (SOS) to be
conducted using a nonpartisan election system, and requires the
SOS, instead of the Attorney General (AG), to prepare the titles
and summaries for proposed state initiatives and for qualified
state ballot measures. Specifically, this bill :
1)Makes elections for the office of SOS nonpartisan.
2)Requires the SOS, instead of the AG, to prepare the title and
summary of each proposed state initiative or referendum
measure.
3)Requires the SOS, instead of the AG, to prepare the ballot
label and the ballot title and summary that appears in the
state ballot pamphlet for each statewide ballot measure.
4)Provides that this bill shall become operative only if an
unspecified Assembly Constitutional Amendment is approved by
the voters.
5)Makes technical and corresponding changes.
EXISTING LAW :
1)Establishes the office of SOS and makes the SOS the chief
elections officer of the state. Requires the SOS to see that
elections are efficiently conducted and that state election
laws are enforced.
2)Specifies that all judicial, school, county, and city offices,
including the office of Superintendent of Public Instruction
(SPI), are nonpartisan. Prohibits a candidate's political
party preference from being included on the ballot for
nonpartisan office.
3)Requires that primary elections for Congress and for state
elective office, other than SPI, be conducted in a manner such
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that every voter, regardless of party affiliation, may vote
for any candidate for that office without regard to the
political party of the candidate, provided that the voter is
otherwise eligible to vote for that office. Provides that the
two candidates that receive the highest number of votes at a
primary election for Congress or for state elective office
other than SPI, regardless of political affiliation, move on
to the general election.
4)Allows any candidate for congressional or state elective
office, except a candidate for SPI, to have his or her
political party preference, or lack of party preference,
indicated on the ballot.
5)Requires the proponents of a state initiative or referendum
measure, prior to circulating petitions for that measure, to
submit a draft of the proposed measure to the AG with a
written request that a circulating title and summary of the
chief purpose and points of the proposed measure be prepared.
6)Requires the AG to prepare a summary of the chief purposes and
points of a proposed state initiative or referendum. Limits
the circulating title and summary to not more than 100 words.
7)Requires a petition for a proposed state initiative measure to
include the circulating title and summary prepared by the AG
on each page of the petition on which signatures are to appear
and on each section of the petition preceding the text of the
measure.
8)Requires the AG to provide and return to the SOS a ballot
title and summary and a ballot label for each measure
submitted to the voters of the whole state. Provides that the
ballot title and summary shall express in not more than 100
words the purpose of the measure. Provides that the ballot
label shall be a condensed version of the ballot title and
summary, including the financial impact summary, and shall be
not more than 75 words long.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Bill : According to the author:
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The primary responsibility of the Secretary of State
(SOS) is to oversee the election process in the state.
Although the SOS vows to carry out his or her duties
in an impartial manner, there are inherent conflicts
when a referee of elections is explicitly affiliated
with a particular political party. The growing trend
of both overtly partisan figures running to be the
state's chief election official and increasing
involvement of superPACs in Secretary of State races
is a concerning pattern that can undermine the
integrity of elections in California and throughout
the nation.
The State of California turned a once partisan
Superintendent of Public Instruction into a
non-partisan office because the job of implementing
policies to improve the education of our students
should not be tainted by political biases and agendas.
There are no compelling reasons why the overseer of
elections should retain their ballot identification
with a political party when taking on the duty of
enforcing a fair election process.
There is evidence throughout the nation in which
partisan secretaries of states on both sides of the
aisle have attempted to unfairly influence the outcome
of elections and ballot measures. In almost every
major election since 2000, partisan secretaries of
states have been key figures in the outcomes of those
election battles-perhaps the most controversial being
the 2000 ballot controversy in Florida that sealed the
outcome of the next President of the United States.
In 2004, Ohio's Secretary of State engaged in
controversial voting rules that favored a particular
political party and influenced the outcomes of very
close races. In 2008, Minnesota's Secretary of State
was in the middle of voter fraud and recount
controversies that influenced the outcome of a
razor-close U.S. Senate race.
There is enough evidence for voters to be concerned
about the integrity of our elections and to support
reforms that address the inherent tension involved
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with partisan officials serving as election referees.
While having a non-partisan chief election referee
does not remove the opportunity for partisan
decision-making, it does remove the obligation.
Additionally, the responsibility of issuing title and
summary for ballot initiatives should also reside in a
non-partisan constitutional election office. A recent
Sacramento Bee editorial agreed that the partisan
manner in which ballot initiatives are summarized is
unacceptable in our democratic system. When ballot
initiative responsibility is in the hands of partisan
constitutional officers, they face considerable
pressures and conflicts of interest as a result of
their explicit affiliation.
2)Would Nonpartisan Elections Change Officials' Behavior ? The
author expresses concern that partisan Secretaries of State
may be unable to enforce election law in a nonpartisan manner,
or, at the very least, can undermine voters' confidence that
elections will be conducted in a fair and impartial manner.
However, it is unclear whether making the SOS a nonpartisan
post would fundamentally change the behavior of candidates for
SOS or the behavior of the SOS once he or she is in office.
Nothing in this bill prohibits the SOS from engaging in partisan
or other political activity of the type described by the
author in his statement in support of the need for this bill.
The author's statement above, for instance, references the
2000 Presidential election, and the controversy surrounding
the counting of ballots in Florida. In that case, the
impartiality of the SOS was questioned in part because she
simultaneously served as the co-chair of George W. Bush's
Florida campaign committee while overseeing the Presidential
election in her role as SOS. But this bill does not prohibit
the SOS from simultaneously overseeing an election while
taking an active role in the campaign for one of the
candidates appearing on the ballot at that election, nor does
it prevent or prohibit the SOS from using the power of his or
her office improperly to affect the outcome of an election.
3)Top Two Primary & Voter Information : In February 2009, the
Legislature approved SCA 4 (Maldonado), Res. Chapter 2,
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Statutes of 2009, which was enacted by the voters as
Proposition 14 on the June 2010, statewide primary election
ballot. Proposition 14 implemented a top two primary election
system in California for most elective state and federal
offices, including the office of SOS. At primary elections,
voters are able to vote for any candidate, regardless of
party, and the two candidates who receive the most votes,
regardless of party, advance to the general election.
Candidates who are running for one of the offices covered by
the top two primary election system are permitted to have
their political party preferences printed on the ballot.
Elections conducted using the top two primary system are fairly
similar to nonpartisan elections, given that all candidates
are listed on the ballot during the primary election, and
voters are free to vote for any candidate at the primary
election. In fact, there are only two noteworthy differences
between elections conducted using the top two system and
nonpartisan elections. First, a candidate for nonpartisan
office can win the election outright in the primary election
by receiving more than 50 percent of the vote, while under
elections conducted using the top two system, the two
candidates who received the most votes advance to the general
election, regardless of whether one candidate received more
than 50 percent of the vote (except in special elections).
Second, the political party preferences of candidates for
office in elections governed by the top two election system
are included on the ballot, and the political party preference
histories for the preceding ten years of the candidates are
included on the SOS's website. Information about candidates'
political party preferences are not included in official
election materials for nonpartisan offices.
While this bill requires elections for SOS to be conducted using
a nonpartisan election process, candidates for SOS would still
be permitted to register as preferring a political party. By
virtue of the fact that elections for SOS would be
nonpartisan, however, information about the candidates'
current and historical political party preferences no longer
would be provided to the voters in official election
materials. By limiting the information that voters receive
about the political party preferences of candidates for SOS,
could this bill actually make the potential partisan biases of
candidates for SOS less apparent?
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4)Other States : According to information from the National
Association of Secretaries of State, 34 states directly elect
the person who serves as the state's chief election official
(in most cases, the SOS is the state's chief election
official). In the 16 other states, the chief election
official is appointed, typically either by the Governor, the
Legislature, or a board or commission that oversees state
elections.
None of the 34 states that directly elect the chief election
official have nonpartisan elections for that office.
5)Is the SOS the Appropriate Entity to Prepare Titles &
Summaries ? The purpose of a title and summary of a proposed
initiative or referendum measure, and of a qualified state
ballot measure, is to provide a short overview to voters of
the primary changes to existing law that would be made by a
measure. In that respect, one could argue that it is
appropriate that the AG be the entity to prepare the title and
summary, since the AG is the chief lawyer of the state and has
legal expertise. The SOS, on the other hand, oversees state
elections, but does not have the level of expertise that the
AG does in the context of summarizing the changes that a
measure would make.
6)Companion Measure and Suggested Amendment : This bill contains
language specifying that it will not become operative unless
voters approve an unspecified ACA. ACA 12 (Gorell), which is
also being heard in this committee today, is a companion
measure to this bill that would make the necessary changes to
the California Constitution in order for this bill to become
operative. In light of that fact, committee staff recommends
that this bill be amended to specify ACA 12 as the measure
that voters must approve in order for this bill's provisions
to become operative.
7)Arguments in Opposition : In opposition to this bill, the
California School Employees Association, AFL-CIO, writes:
The role of the Attorney General is to offer legal
advice and guidance to state officers and the
government at large. The Attorney General represents
the People of California in civil and criminal matters
before trial courts, appellate courts and the supreme
courts of California and the United States. The
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Attorney General also serves as legal counsel to state
officers and, with few exceptions, to state agencies,
boards and commissions. The office is intimately
intertwined with the rule of law and the multitude of
codes that make up the body of California law.
It is with this unique charge that the Attorney
General is the most qualified officer to prepare the
legal title and summary of ballot measures, which
alter the laws and Constitution of California. The
opinion of the Attorney General is essential to
preparing the proper analysis of ballot measures and a
[measure's] impact on the law. The Secretary of State
on the other hand, is better equipped to handle the
mechanics of California's elections and business
registration. Asking the civil office of the
Secretary of State to prepare legal analyses of ballot
measures would be similar to asking a lay person for
legal representation.
8)Related Legislation : SB 1294 (Huff), which is scheduled to be
heard in the Senate Elections & Constitutional Amendments
Committee today, would make the Legislative Analyst, instead
of the AG, responsible for preparing the ballot label and
ballot title and summary for statewide ballot measures.
9)Previous Legislation : AB 5 (Canciamilla), ACA 33
(Canciamilla), and SCA 4 (Denham) of the 2005-06 Legislative
Session all proposed having nonpartisan elections for the
office of SOS, among other provisions. AB 5 failed passage in
this committee, and SCA 4 failed passage in the Senate
Elections, Reapportionment, and Constitutional Amendments
Committee. ACA 33 was never heard in committee.
AB 319 (Niello) of 2009 and AB 1968 (Niello) of 2010 would have
required the Legislative Analyst, instead of the AG, to
prepare the circulating titles and summaries for state
initiatives and referenda, and the ballot titles and summaries
and ballot labels for state measures that will appear on the
ballot, among other provisions. AB 319 failed passage in this
committee, while AB 1968 failed passage in the Assembly
Appropriations Committee. ACA 20 (Niello) of 2009 was a
companion measure to both AB 319 and AB 1968. ACA 20 failed
passage in this committee. AB 2209 (Niello) and ACA 18
(Adams) of 2008 were similar to AB 319, AB 1968, and ACA 20.
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AB 2209 failed passage in this committee, while ACA 18 was
never heard in committee.
10)Political Reform Act of 1974 : California voters passed an
initiative, Proposition 9, in 1974 that created the Fair
Political Practices Commission and codified significant
restrictions and prohibitions on candidates, officeholders and
lobbyists. That initiative is commonly known as the Political
Reform Act (PRA). Most amendments to the PRA that are not
submitted to the voters must further the purposes of the
initiative, require a two-thirds vote of both houses of the
Legislature, and must comply with certain other procedural
requirements.
Certain provisions of the PRA specify the information that is to
be included in the state ballot pamphlet, including a
requirement that the pamphlet include the "official summary
[of each state ballot measure] prepared by the Attorney
General." Because this bill seeks to make the SOS, instead of
the AG, responsible for preparing the official summary of
state measures, this bill proposes to amend that provision of
the PRA accordingly.
The Office of the Legislative Counsel indicates that they
believe that the changes proposed to the PRA by this bill are
conforming changes, rather than substantive amendments to the
PRA, since this bill is contingent upon a constitutional
amendment that would make the SOS responsible for preparing
the official summary of state measures. In accordance with
that determination, this bill has been keyed as a majority
vote bill by the Legislative Counsel, and the Legislative
Counsel has not identified this bill as one that is subject to
the other procedural requirements for amending the PRA.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
California School Employees Association, AFL-CIO
Secretary of State Debra Bowen (unless amended)
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Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094