March 15, 2005

AB 5 Committee Analysis

Here is the committee analysis for AB 5, a bill to make the office of Secretary of State nonpartisan. As the analysis points out, a constitutional amendment may be necessary to accomplish this purpose.

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Tom Umberg, Chair
AB 5 (Canciamilla) - As Introduced: December 6, 2004

SUBJECT : Secretary of State: Candidates.

SUMMARY : Makes Secretary of State (SOS) a nonpartisan post.
Specifically, this bill :

1)Designates the office of SOS a nonpartisan office.

2)Requires a candidate for SOS to file a Declaration of Intent
to Make Endorsements (DIME), indicating whether or not the
candidate intends to endorse candidates for public office or
ballot measures.

3)Makes various findings and declarations about partisan
activities by elections officials.

4)Makes conforming and technical changes.

EXISTING LAW provides that judicial, school, county, and
municipal offices are nonpartisan offices.

FISCAL EFFECT : Unknown. State-mandated local program;
contains reimbursement direction.

COMMENTS :

1)Purpose of the Bill : According to the author, "The duties of
the Secretary of State, like those of local elections
officials, are ministerial and not partisan in nature. Local
election [officials] adhere to a code of ethics which
prohibits them from endorsing candidates or ballots measures
to ensure the public that there is no favoritism or the
appearance of partiality in conducing elections. That system
works well and there is no real reason why it should not be
applied to state elections. There should be no Democratic or
Republican way to conduct elections, just the fair way."

The author indicates that he "became interested in this issue
due to the controversy surrounding Kevin Shelley and to what
happened in other states. Both the Secretaries of State in
Florida (2000) and in Ohio (2004) were co-chairs of the Bush
campaign, which left them and the manner in which elections
were conducted in those battleground states open to criticism
of partiality."

2)Is A Constitutional Amendment Required ? According to
Legislative Counsel, an amendment to the state's constitution
may be required in order to make the SOS a nonpartisan office.
The state Constitution establishes the office of SOS, and
provides that all judicial, school, county, and city offices
shall be nonpartisan. Because the constitution requires the
Legislature to provide for partisan primary elections and
because the constitution specifies a list of offices that are
nonpartisan, Legislative Counsel argues that a
constitutionally established office must be a partisan office
unless that office is specified as nonpartisan in the
Constitution.

3)Could This Bill Hide Partisan Bias by Secretaries of State ?
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.

In a state the size of California, it is difficult for an
individual to be elected statewide without having previously
held another state office. Other than Superintendent of
Public Instruction, all elective state offices are partisan
offices. As such, it is likely that a large portion of viable
candidates for SOS will have held partisan office prior to
running for, or while running for, SOS. The last two elected
Secretaries of State, Bill Jones and Kevin Shelley, were
members of the state Assembly prior to being elected Secretary
of State. Both held leadership positions with their
respective party caucuses - Jones served as Republican Leader,
while Shelley served as Majority Leader.

Unless making the SOS a nonpartisan office fundamentally changes
the types of people who run for the office, it is likely that
the post will continue to be held by individuals who have held
partisan office and who have been involved in other partisan

activities. If this is the case, making the SOS a nonpartisan
office may actually serve to make partisan bias by a SOS less
apparent. To the extent that the public is unaware of a SOS's
partisan affiliation, the public may be less watchful for
questionable partisan activities by that official.

4)Declaration of Intent to Make Endorsements : This bill requires
every candidate for SOS to file a declaration indicating
whether or not he or she intends to endorse candidates and
ballot measures. The benefit of requiring such a declaration
is unclear. The bill does not provide for any indication, on
the ballot, in the sample ballot pamphlet, or in the voter
information guide, of whether a candidate for SOS intends to
endorse candidates or not. Nor does the bill specify whether
the filed declaration would be a public document and, if it is
a public document, where it is made available to the public.
This bill specifies that the DIME will be filed along with the
declaration of candidacy, which means that the DIME will be
filed with the county elections official. However, because
different candidates are likely to file their declarations of
candidacy in different counties, there will not be a central
repository for DIMEs. While existing law requires the county
elections official to forward all nomination documents for
candidates for SOS to the office of the SOS, DIMEs would not
be considered nomination documents. In order to make DIMEs
more accessible to the public, it may be appropriate to amend
this bill to require DIMEs to be forwarded to the SOS.

Additionally, it is unclear what recourse would be available if
a candidate for SOS files a DIME indicating that he or she
does not intend to endorse candidates or ballot measures, but
subsequently does endorse candidates or ballot measures.
Because this bill does not provide for any corrective or
punitive action to be taken when a candidate for SOS acts in a
manner that is inconsistent with his or her DIME, it is not
clear whether requiring candidates for SOS to file DIMEs will
have any practical effect.

5)Related Legislation : SCA 4 (Denham), pending in the Senate
Elections Committee, makes SOS a non-partisan post. SB 787
(McClintock), also pending in the Senate Elections Committee,
prohibits elections officials from taking part in certain
specified political activities.

REGISTERED SUPPORT / OPPOSITION :

Support

None on file.

Opposition

None on file.

Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094

Posted by Randy Riddle at March 15, 2005 09:44 AM