Voter fraud trial to begin for former L.A. Councilman Richard Alarcon”

You can read the LA Times article here.

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“Ninth U.S. Circuit Court rules against sponsor IDs on ballot initiatives”

You can find the SF Chronicle story here. You can read the Ninth Circuit’s 2-1 decision here.

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Verification of Independent Expenditures

Campaign committees that make independent expenditures of $1,000 or more must now verify that (1) the independent expenditures they make are not coordinated with the supported candidate or ballot measure committee, and (2) the committee is reporting all contributions and reimbursements.

The FPPC has issued Form 462 to be used to identify the committee making the independent expenditures and the candidate or ballot measure supported or opposed.  FPPC Regulation 18465.1 governs this new requirement.

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California regulation of nonprofits supporting or opposing ballot measures

Nonprofit organizations — with the exception of those formed specifically for the purpose of engaging in political activities — generally do not become involved in state or local ballot measure campaigns.  If  a nonprofit does become interested in financially supporting or opposing a specific ballot measure, the nonprofit must ensure that its activities do not run afoul of the Political Reform Act (PRA), which regulates campaign finance activities in California.  For example, under some circumstances, the PRA may treat charitable donations to a nonprofit as political contributions, subject to reporting and other requirements.

The Fair Political Practices Commission has issued a Fact Sheet that summarizes the rules governing this sometimes complex area of the law.  Nonprofits should carefully review these rules if they choose to support or oppose a ballot measure in California.

These state rules are in addition to the federal restrictions on the political activities of 501(c)(3) tax exempt organizations.

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What types of actions are beyond the California initiative power?

In 1911, California voters amended the state Constitution to reserve to themselves the power of initiative.  As the California Supreme Court has explained, this reserved power is “one of the most precious rights of our democratic process.  It has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right not be improperly annulled.” (Associated Home Builders, Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591.)

The power of initiative, however, is not without limits.  Courts have concluded that certain types of actions are beyond the initiative power.  Challenges on this ground often take the form of pre-election challenges, intended to prevent a measure from appearing on the ballot.

Th following categories are not as well-defined as this list may suggest, and at times they may overlap.  Nor is this list is intended to be exhaustive.

1.  Future Legislative Acts.  An initiative measure is invalid if it directs a legislative body to perform a legislative act in the future.  An illustration of this is Marblehead v. City of San Clemente (1991) 226 Cal. App. 3d 1504, where an initiative required the city council to revise zoning ordinances to reflect the concepts expressed in the measure.

2.  Delegation to Legislative Body.  When State law provides that certain actions are delegated to the local legislative body, and discretion must be exercised by that body, a courts may conclude that such actions are not subject to control by initiative .  For example, in Committee of Seven Thousand v. Superior Court (1988) 45 Cal. 3d 491, the Court held that state law enabling local governments to engage in decisions regarding funding and location of highways precluded an initiative measure on the subject.

3.  Interference with Essential Government Functions.  In City of Atascadero v. Daly (1982) 135 Cal.App.3d 466, the Court held that a local initiative measure that redefined the term “special tax” and that curtailed the power of the city to raise revenue was an unlawful attempt to impair essential governmental functions through interference with the administration of the City’s fiscal powers. (See Rossi v. Brown (1995) 9 Cal.4th 688, 703 [“If essential governmental functions would be seriously impaired by the referendum process, the courts, in construing the applicable constitutional and statutory provisions, will assume that no such result was intended”].)

4.  Matters Beyond the Power of the Legislative Body to Enact.  As a general matter, acts that are beyond the authority of the legislative body are also beyond the power of the people to adopt by initiative or referendum.  For example, the voters may not seek to accomplish by ordinance an act that may only be accomplished by charter amendment.  (City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 105-106.)

5.  Measures That Embrace More Than One Subject.  Article 2, section 8(d) of the California Constitution provides “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”  A ballot measure may not be acted upon by the voters where such measure entails more than one subject.  (Pala Band of Mission Indians v. Board of Supervisors (1997) 54 Cal.App.4th 565, 581-582.)  Many city charters have a similar provision.

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Increased Contribution Limits for State Candidates Become Effective February 6

You can see the amendments to 2 Cal. Code Regs. Section 18545 here.

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Citizens United II?

In Citizens United, the Supreme Court invalidated on First Amendment grounds a federal prohibition on corporations and labor unions using their general treasury funds to make independent expenditures for or against federal candidates. The provision of federal law prohibiting corporations and unions from making direct contributions to federal candidates was not before the Citizens United Court. In FEC v. Beaumont, 539 U.S. 146 (2003), the Supreme Court, by a 7-2 vote, rejected a First Amendment challenge to that provision. Some California cities, including San Francisco, impose a similar contribution ban for city elections.

Now pending before the Supreme Court is a petition for certiorari that asks the Court to reconsider Beaumont in light of Citizens United, and in doing so, to heighten the level of scrutiny courts apply when reviewing the validity of laws limiting campaign contributions. The United States has filed this response.

A Supreme Court decision overruling Beaumont would be another significant blow to campaign finance reform, particularly were the Court, in doing so, to increase the level of scrutiny applied to laws imposing limits on campaign contributions.

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New Election Law Bills Introduced in the Legislature

Yes, I am back.  In addition to my twitter feed (@calelectionlaw), I will now be updating the California Election Law Blog on a regular basis.

With the Legislature back in session, a number of new election law bills have been introduced in the Senate and Assembly.  Here is a rundown of the bills introduced so far:

AB 45 would increase the monetary threshold of contributions or independent expenditures to qualify as a committee to $2,000. The bill would also revise the definition of a “controlled committee” to specify that a committee controlled by a candidate who is elected to office is a controlled committee for the duration of the candidate’s entire term of office.

AB 131 provides that the failure of a person registering to vote to provide his or her place of birth would not preclude his or her affidavit of registration from being deemed complete.

AB 141 relates the state’s top-two primary system.   It provides that that in order for a write-in candidate to have his or her name appear on the general election ballot, the candidate must receive votes at the primary election equal in number to at least 1% of all votes cast for the office at the last preceding general election at which the office was filled.

SB 26 would require that disclosures on slate mailers be displayed more prominently.

SB 27 is aimed at providing more transparency to the campaign finance activities of nonprofit organizations, in light of the anonymous $11 million contribution made on the eve of the November 2102 California election.  The bill would expand the definition of “contribution” to include payments made by a donor who, at the time of making the payment, knows or has reason to know that the payment, or funds with which the payment will be commingled, will be used to make contributions or expenditures.  In addition, the bill  would require ballot measure committees and candidate committees that raise $1,000,000 or more for an election to maintain an accurate list of the committee’s top 10 contributors, which would be posted on the Commission’s website and the committee’s website.

SB 29, in what would be a significant change to California election law, provides that a vote by mail ballot is timely cast if it is received by the elections official no later than 3 days after election day, and either the ballot is postmarked on or before election day or, if the ballot has no postmark, a postmark with no date, or an illegible postmark, the vote by mail ballot identification envelope is signed and dated on or before election day.  Under current law, a ballot is valid only if it is received by the election official by the time the polls close on election day.

SB 44 would require each website maintained by the state to include a link on the site’s homepage to the Secretary of State’s online voter registration page.

SB 113 would lower the minimum age for purposes of submitting an affidavit of registration from 18 to 15 years of age, although the person would still be unable to vote until he or she turned 18.

SB 121, presumably in response to the Citizens United decision, would require a corporation that has shareholders located in this state and that makes a political contribution or expenditure to issue a report on the political expenditures of the corporation in the previous fiscal year, and to notify shareholders not less than 24 hours prior to each political contribution during the fiscal year.

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“Beall accuses Senate rival Coto of campaign law breach”

From the Santa Cruz Sentinel:

“Assemblyman and state Senate candidate Jim Beall filed a complaint late Monday accusing opponent Joe Coto of unlawful campaign coordination with an independent political committee.

According to the complaint sent to the California Fair Political Practices Commission, as many as seven paid Coto campaign workers, including two senior staffers, also were paid by independent committee Vote Matters. State law forbids independent political groups from spending significant amounts in support of a candidate while working with that candidate’s campaign.”

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“Feds, CA reach agreement over voter violations”

The San Jose Mercury News has the story.

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