BILL ANALYSIS                                                                                                                                                                                                    

                                                                     AB 372

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          Date of Hearing:  April 15, 2015


                           Sebastian Ridley-Thomas, Chair

                    372 (Bigelow) - As Introduced  February 17, 2015

          SUBJECT:  Elections:  write-in candidates.

          SUMMARY:  Requires a write-in candidate for a voter-nominated  
          office who advances to the general election to pay the  
          prescribed filing fee in order to appear on the general election  
          ballot.  Specifically, this bill:  

          1)Requires a write-in candidate for a voter-nominated office who  
            receives the highest or second highest number of votes cast at  
            the primary election to pay a filing fee to the Secretary of  
            State in order for his or her name to appear on the ballot at  
            the ensuing general election.  

          2)Provides that the amount of the fee is as follows:

             a)   In the case of United States Senator or any statewide  
               office, two percent of the first-year salary for the  

             b)   In the case of Representative in Congress, member of the  
               Board of Equalization, state Senator, or member of the  


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               Assembly, one percent of the first-year salary. 

          1)Provides that the salary that is used to calculate the filing  
            fee is the annual salary for the office as of the first day on  
            which a candidate may circulate petitions in lieu of filing  
          EXISTING LAW:  

          1)Provides that write-in candidates for office are not required  
            to pay a fee or charge except as provided for city office.

          2)Requires a write-in candidate to gather the same number of  
            signatures on nomination papers as non-write-in candidates for  
            the same office. 

          3)Requires candidates for specified offices, other than write-in  
            candidates, to pay a filing fee or to submit a petition  
            containing signatures of registered voters in lieu of a filing  
            fee.  Permits candidates to submit signatures to cover all or  
            any portion of the filing fee.  

          4)Provides that in order to be nominated at the primary election  
            for a voter nominated office, a write-in candidate must  
            receive the highest or second highest number of votes cast for  
            the office.

          5)Provides that the following offices are voter nominated  
            offices: Governor, Lieutenant Governor, Secretary of State,  
            State Treasurer, State Controller, State Insurance  
            Commissioner, Attorney General, State Board of Equalization,  
            State Senator or Assemblymember and United States Senator or  


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          FISCAL EFFECT:  None.  This bill is keyed non-fiscal by the  
          Legislative Counsel.


          1)Purpose of the Bill: According to the author: 

          Currently write-in candidates for a voter-nominated office who  
          receive either the highest or the second highest number of votes  
          cast in the primary election do not have to pay a filling fee to  
          appear on the ballot in the general election.  The filing fee is  
          a tool for the state and the counties to help recoup their costs  
          for running an election and is calculated as a percentage of the  
          official salary of the position the candidate is running for. AB  
          372 would require write-in candidates that advance from the  
          primary election to pay a filing fee in order to appear on the  
          ballot at the ensuing general election, just like the other  
          candidates. The purpose of this bill is to not discourage any  
          candidates from running but rather to ensure that our counties  
          do not have to absorb more costs during elections. 

          2)Alternative to a Filing Fee and Suggested Amendments:  
            California law requires candidates for many elective offices  
            to pay a filing fee at the time they obtain nomination papers  
            from the elections official.  Filing fees are intended, in  
            part, to help cover the administrative costs of conducting the  
            election, but also serve as a means of limiting the size of  
            the ballot in order to reduce voter confusion, prevent  
            overwhelming voting systems, and allow the electorate to focus  
            attention on a smaller number of candidates in order that  
            elections may better reflect the will of the majority.  Courts  
            have long recognized that states have a legitimate interest in  


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            regulating the number of candidates on the ballot for these  

          At the same time, courts have also found that a state cannot  
            require candidates to pay a filing fee in order to appear on  
            the ballot unless the state also provides a reasonable  
            alternative means of ballot access.  In Lubin v. Panish (1974)  
            415 U.S. 709, the United States Supreme Court found that a  
            California law that required certain candidates for office to  
            pay a filing fee in order to appear on the ballot was  
            unconstitutional because the law did not provide an alternate  
            means of qualifying for the ballot for indigent candidates who  
            were unable to pay the fee.  In finding California's filing  
            fee law to be invalid, the court noted that there were other  
            "obvious and well known means of testing the 'seriousness' of  
            a candidacy which do not measure the probability of attracting  
            significant voter support solely by the neutral fact of  
            payment of a filing fee," including a requirement for a  
            candidate who cannot pay the filing fee to "demonstrate the  
            'seriousness' of his candidacy by persuading a substantial  
            number of voters to sign a petition in his behalf."

            In response to the Supreme Court's decision in Lubin, the  
            Legislature enacted and the Governor signed AB 914 (Ray  
            Gonzales), Chapter 454, Statutes of 1974, an urgency measure  
            that permitted candidates to file petitions containing the  
            signatures of a specified number of registered voters in lieu  
            of paying a filing fee.  The number of signatures required to  
            be collected in lieu of paying a filing fee has remained  
            largely unchanged since the signatures-in-lieu procedure was  
            originally adopted in 1974.

            In light of the Supreme Court's decision in Lubin, the  
            committee may wish to consider an amendment to this bill to  
            provide for an alternative to the filing fee for indigent  
            candidates.  Because of the limited amount of time between the  
            primary and the general election, it is unclear whether it is  
            feasible to have candidates collect signatures in lieu of  
            paying a filing fee.  Instead, the committee may wish to  
            consider using a procedure that applies under existing law for  
            indigent candidates who wish to place a candidate statement  
            that appears in the voter information portion of the sample  


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            ballot.  Under that procedure, a candidate who alleges to be  
            indigent and unable to pay for a statement must submit a  
            statement of financial worth to be used by the elections  
            official in determining whether the candidate is eligible to  
            have the fee waived.  

            Additionally, this bill does not currently include a deadline  
            for candidates to pay the filing fee required by this bill.   
            The committee and the author may wish to amend this bill to  
            establish a deadline for that filing fee to be paid.

          3)Voter-Nominated Office:  This bill applies to write-in  
            candidates who have received the highest or second highest  
            number of votes cast for a voter-nominated office.   
            Proposition 14 of 2010, which is also known as the Top Two  
            Candidates Open Primary Act, changed the way that elections  
            are conducted for all statewide elections in California. Under  
            California's Constitution, political parties are not entitled  
            to formally nominate candidates for voter-nominated offices at  
            the primary election. All voters may vote for any candidate  
            for a voter-nominated office, provided they meet the other  
            qualifications required to vote for that office. The top two  
            vote-getters at the primary election advance to the general  
            election for the voter-nominated office, even if both  
            candidates have specified the same party preference  

          4)Court Decisions on Fees for Write-In Candidates: Federal  
            courts have found certain laws that require write-in  
            candidates to pay filing fees to be unconstitutional. Dixon v.  
            Maryland State Administrative Board of Election Laws, 878 F.2d  
            776 (4th Cir. 1989) and Phillips v. Hechler 120 F. Supp.2d  
            587, 592 (S.D.  W. Va. 2000).  In light of those cases there  
            may be some questions about the constitutionality of this  
            bill.  However, this bill is distinguishable from the laws  
            that were invalidated by the federal courts because it applies  
            only to candidates who ran as write-in candidates in the  
            primary and received sufficient votes to qualify to appear on  


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            the general election ballot.  As a result, the candidates that  
            this bill applies to are no longer write-in candidates at the  
            time they are required to pay the filing fee.     

          5)Argument in Opposition: In opposition to this bill, the Peace  
            and Freedom Party writes:

               The usual justification for filing fees is to avoid a  
               "crowded ballot." But under the present California Top Two  
               system, which we consider far too restricting as it is, no  
               more than two candidates may appear on the November ballot  
               for any "voter nominated" office.  Cutting this to one for  
               certain offices, because the second or even the first June  
               vote-getter cannot pay the filing fee, would certainly not  
               deal with ballot crowding.  But single-candidate elections  
               do contribute to voter apathy and low turnout.

               AB 372 is poorly drafted.  It does not address procedural  
               issues necessary to make the filing fee requirement work.   
               These include the deadline by which the fee must be paid  
               and provisions for submitting signatures in lieu of filing  
               fees.  Even if it were amended to address these issues,  
               however, it would substantially burden candidates for no  
               public purpose.




          None on file.


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          Peace and Freedom Party

          Analysis Prepared  
          by:              Lori Barber / E. & R. / (916) 319-2094