BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 909 HEARING DATE: 7/7/09
AUTHOR: FEUER ANALYSIS BY: Frances Tibon
Estoista
AMENDED: 4/21/09
FISCAL: YES
SUBJECT
Elections: voting
DESCRIPTION
Existing law requires the affidavit of voter registration
to inform the person completing the affidavit that any
elector may decline to state a political affiliation.
Existing law requires all voters who are decline-to-state
(DTS) voters and who appear to vote 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.
This bill requires polling place workers to notify each DTS
voter that he or she may request a partisan ballot at a
primary election. Specifically, this bill:
This bill 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.
This bill provides that for the purposes of this bill,
written notification includes signs, placards, posters, and
other forms of written notice.
This bill 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.
This bill 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.
This bill allows a DTS voter to request a partisan ballot
at a primary election either verbally or in writing.
This bill makes various technical changes.
BACKGROUND
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 Select Committee on Integrity of Elections,
and the Assembly Committee on Elections and Redistricting
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 were denied the opportunity to vote in the partisan
primary election of their choice because a variety of
reasons including the following: 1) they didn't know that
they had the option of requesting a partisan ballot, 2)
they didn't know that they had to specifically request a
partisan ballot, and 3) they were told by poll workers that
they were not permitted to vote a partisan ballot.
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 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
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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 their respective 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.
For VBM voters who are DTS voters, the VBM ballot
application contains a space in which the DTS voter can
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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.
COMMENTS
1.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.
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2.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.
3.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 read
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."
PRIOR ACTION
Assembly Elections and Redistricting Committee: 7-0
Assembly Appropriations Committee: 11-5
Assembly Floor: 56-22
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POSITIONS
Sponsor: Secretary of State
Support: Asian Americans for Civil Rights and Equality
(AACRE)
California Association of Clerks and Election
Officials (CACEO)
California Teachers Association (CTA)
Oppose: None received
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