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November 9, 2020

Post-Election Analysis 2020: California


Potential Candidates to Replace Kamala Harris' Senate Seat

Vice President-elect Kamala Harris now leaves a vacancy for her Senate seat. In California, when a vacancy occurs, the governor must appoint a new senator, who will serve until the end of that Senate seat's term or the next statewide general election, whichever comes first. In this case, the appointed senator will serve until the 2022 midterm elections. During that election cycle, it is likely that the appointee would face a Democratic challenger given California's top two primary system and how rare it is for a Senate seat in California to open up. Therefore, Governor Newsom is likely to appoint someone with statewide name recognition and strong fundraising capabilities.

Since 1993, both of California's Senate seats have been occupied by women. Accordingly, Governor Newsom may be inclined to appoint another woman. Senator Dianne Feinstein occupies the other Senate seat in California, who at nearly 90 years old is unlikely to seek reelection in 2022. That puts California in a unique position of potentially having two very junior senators come 2023, which puts even more pressure on Governor Newsom to appoint someone who can quickly ascend to a leadership position in the Senate. Many names have been floated as possibilities, including, but not limited to the following:

Congresswoman Karen Bass (D-CA)

Before serving in Congress, Karen Bass served as Speaker of the Assembly in the California State Legislature and developed a reputation within both political parties as being a consensus builder. Her name was on the short list to be President-elect Biden's running mate, and she enjoyed the support of Speaker of the House Nancy Pelosi (D-CA) in her bid for vice president.

Alex Padilla, California Secretary of State

Alex Padilla, a former member of the California Legislature and currently California's Secretary of State, has a emerged as a front runner both because he is supported by California's powerful Hispanic political circles and is a close ally of Governor Newsom. Additionally, because he currently holds statewide office, he has the benefit of statewide name recognition. Several news organizations, including CNN, also recently interviewed Padilla in connection with the California Republican Party's recent efforts to collect ballots in unofficial 'drop boxes' throughout the state. If Alex Padilla is appointed as senator, it will leave his position as Secretary of State vacant, allowing Governor Newsom to appoint someone to fill that vacancy as well.

Congressman Adam Schiff (D-CA)

Adam Schiff is the Chairman of the House Permanent Select Committee on Intelligence and gained notoriety during the impeachment inquiry into President Trump.

Xavier Becerra, California Attorney General

Xavier Becerra has led the legal charge against the Trump Administration, bringing numerous lawsuits as attorney general to challenge a variety of actions by the administration, ranging from healthcare to the environment. Prior to serving as attorney general, he served for many years in the US House of Representatives, where he was the House Democratic Caucus Chairman for four years.

Eleni Kounalakis, California Lieutenant Governor

Eleni Kounalakis is the first female lieutenant governor in the state of California. She has proven to be a strong fundraiser and has statewide name recognition that will leave her well-positioned for a 2022 re-election.

Eric Garcetti, Mayor of Los Angeles

Eric Garcetti has gained notoriety as the mayor of Los Angeles and for the city's handling of the COVID-19 pandemic. He is also a very strong fundraiser, which will be important for a 2022 re-election.

Toni Atkins, State Senate President

Toni Atkins is the first female president of the Senate and the first openly gay state legislator to hold that position. She is also one of the few legislators to serve as both Senate president and assembly speaker. During her time in the Legislature, she has become known as a consensus builder and a strong champion of LGBTQ rights.

Statewide Ballot Initiative Outcomes

Some of the most significant policy decisions in California are made by the voters through the ballot initiative process. This year, there were twelve statewide ballot propositions up for consideration. Here are the outcomes:

Proposition 14 [PASSED*]: Authorizes $5.5 billion in state general obligation bonds to fund grants from the California Institute of Regenerative Medicine to educational, non-profit, and private entities for: (1) stem cell and other medical research, including training; (2) stem cell therapy development and delivery; (3) research facility construction; and (4) associated administrative expenses.

Proposition 15 [FAILED*]: Would have increased funding for K-12 public schools, community colleges, and local governments by requiring that commercial and industrial real property be taxed based on current market value. In California, the proposal to assess taxes on commercial and industrial properties at market value, while continuing to assess taxes on residential properties based on the purchase price, is known as split roll. This proposal was very divisive among Californians and hotly contested by industry and businesses in California.

Proposition 16 [FAILED]: Would have repealed Proposition 209, a measure passed by the voters in 1996, which prohibited government decision-making policies to consider race, sex, color, ethnicity, or national origin to address diversity. This measure was added by a two-thirds vote of the Legislature to refer this constitutional amendment to the ballot.

Proposition 17 [PASSED]: Known as the 'Restores Right to Vote After Completion of Prison Term' initiative, passage of this proposition will allow people on parole for felony convictions to vote in California. This measure was added by a two-thirds vote of the Legislature to refer this constitutional amendment to the ballot.

Proposition 18 [FAILED*]: Would have allowed 17-year-olds who will be 18 at the time of the next general election to vote in primary elections and special elections.

Proposition 19 [PASSED*]: Permits homeowners who are 55, severely disabled, or whose homes were destroyed by wildfire or disaster, to transfer their primary residence's property tax base value to a replacement residence of any value, anywhere in the state.

Proposition 20 [FAILED]: Would have made specific types of theft and fraud crimes, including firearm theft, vehicle theft, and unlawful use of a credit card, chargeable as misdemeanors or felonies, rather than misdemeanors. Also would have established two additional types of crimes in state code—serial crime and organized retail crime—and would have charged them as wobblers (crimes chargeable as misdemeanors or felonies). Additionally, would have required persons convicted of certain misdemeanors that were classified as wobblers or felonies before 2014, such as shoplifting, grand theft, and drug possession, along with several other crimes, including domestic violence and prostitution with a minor, to submit to the collection of DNA samples for state and federal databases.

Proposition 21 [FAILED]: Would have allowed local governments to enact rent control on housing that was first occupied more than 15 years ago, with an exception for landlords who own no more than two homes with distinct titles or subdivided interests.

Proposition 22 [PASSED]: Funded primarily by Uber, Lyft, and Postmates, establishes that app-based drivers are independent contractors and not employees or agents. Therefore, the ballot measure overrides Assembly Bill 5 (AB 5), signed in September 2019, which established that app-based drivers were subject to a recent test established by the California Supreme Court that classifies them employees.

Proposition 23 [FAILED]: Would have required chronic dialysis clinics to: (1) have an on-site physician while patients are being treated; (2) report data on dialysis-related infections; (3) obtain consent from the state health department before closing a clinic; and (4) not discriminate against patients based on the source of payment for care.

Proposition 24 [PASSED]: Expands the state's consumer data privacy laws, including provisions to: (1) allow consumers to direct businesses to not share their personal information; (2) remove the time period in which businesses can fix violations before being penalized; and (3) create the Privacy Protection Agency to enforce the state's consumer data privacy laws.

Proposition 25 [FAILED]: Overturns and repeals Senate Bill 10 (SB 10), legislation signed into law by then-Governor Jerry Brown that, had Prop. 25 not failed, would have replaced the cash bail system with a risk assessment-based bail system.

*The outcome for this ballot proposition has not yet been called as of November 5, 2020, and the projection is based on unofficial election results. Official results will be certified by December 11, 2020.

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© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.