BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2101
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          Date of Hearing:  April 13, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                  AB 2101 (Fong) - As Introduced:  February 18, 2010
           
                     PROPOSED CONSENT (As Proposed to Be Amended)
           
          SUBJECT  :  ELECTIONS: INITIATIVE OR VOTER REGISTRATION FRAUD

           KEY ISSUE  :  SHOULD A COURT BE ALLOWED TO ISSUE AN ORDER  
          PROHIBITING A PERSON WHO HAS BEEN CONVICTED OF INITIATIVE OR  
          VOTER REGISTRATION FRAUD FROM RECEIVING ANY MONEY IN THE FUTURE  
          FOR CIRCULATING PETITIONS OR REGISTERING VOTERS, WITH SPECIFIED  
          PROTECTIONS?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS

          This bill seeks to prevent someone who is convicted of  
          initiative or voter registration fraud from being paid to  
          circulate petitions or register voters.  The author notes that  
          there have been numerous complaints in recent years about  
          dishonest signature gatherers.  Often people who register voters  
          or gather signatures on petitions are often paid a "bounty" for  
          each person that they register.  As a result, the author  
          contends, signature gatherers and people registering voters have  
          a financial incentive to mislead voters to get them to sign a  
          petition or to re-register to vote.  This bill takes a narrow  
          approach by allowing courts to issue an order banning only those  
          individuals actually convicted of voter registration fraud from  
          being paid in the future to collect signatures on initiative  
          petitions or for registering voters.  The bill recently passed  
          the Assembly Elections & Redistricting Committee by a 6-0 vote.   
          The American Civil Liberties Union expressed earlier concerns  
          about the bill's lack of an express mechanism to permit an  
          individual  to petition the court in the future for  
          reconsideration based on extenuating circumstances, and the  
          author has agreed to amend the bill as proposed to be amended to  
          address that concern.  The author has also agreed to two  
          additional amendments, one dealing with the remedy available for  
          violation of the court order, the other adding a reasonable  
          limit on the duration of the court order modeled after a similar  
          law in the State of Arizona.  There is no known opposition to  







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          the measure.  

           SUMMARY  :  Permits a court to prevent someone who is convicted of  
          initiative fraud or voter registration fraud from being paid to  
          circulate petitions or register voters.  Specifically,  this  
          bill  :  

          1)Permits a court, upon finding a person guilty of engaging in  
            prohibited voter registration activities, to issue an order  
            prohibiting that person from receiving money or other valuable  
            consideration for assisting another person to register to vote  
            by receiving the completed affidavit of registration.   
            Provides that such an order is in addition to any other  
            penalty imposed by state law.

          2)Permits a court, upon finding a person guilty of engaging in  
            prohibited conduct regarding the circulation of an initiative,  
            referendum, or recall petition, to issue an order prohibiting  
            that person from receiving money or other valuable  
            consideration for gathering signatures on an initiative,  
            referendum, or recall petition.  Provides that such an order  
            is in addition to any other penalty imposed by state law.

           EXISTING LAW  : 

          1)Prohibits various conduct with respect to the registration of  
            voters, including the following:

              a)    Registering a person, including oneself, who is not  
                entitled to register to vote;
              b)    Registering a fictitious person to vote;
              c)    Registering a person to vote under a false name or  
                address;
              d)    Interfering with the return of a completed affidavit  
                of voter registration;
              e)    Refusing to return a completed affidavit of  
                registration;
              f)    Altering the content of an affidavit of registration  
                without the consent of the affiant; and,
              g)    Misusing the information from an affidavit of  
                registration.

          2)Prohibits various conduct with respect to the circulation of  
            an initiative, referendum, or recall petition, including the  
            following:







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              a)    Misrepresentation by the circulator of a petition of  
                the contents, purport, or effect of the petition;
              b)    Refusal by the circulator to allow a petition signer  
                to read the petition;
              c)    Obscuring the summary of a measure prepared by the  
                Attorney General from the view of a prospective signer;
              d)    Offering or giving money or other valuable  
                consideration in exchange for a person's signature on a  
                petition;
              e)    Affixing or soliciting false or forged signatures, or  
                fictitious names, on a petition;
              f)    Using the information on a petition that has been  
                signed by voters, including the voters' signatures, for  
                any purpose other than the qualification of the measure  
                for the ballot; and,
              g)    Making a false affidavit concerning a petition.

           COMMENTS  :  This bill seeks to permit a court to prevent someone  
          who is convicted of initiative fraud or voter registration fraud  
          from being paid to circulate petitions or register voters.  In  
          support, the author states:

               Stories about voters being misled into signing initiative  
               petitions that they do not support or having their party  
               affiliations changed without their consent are all too  
               common.

               In the last two election cycles, individuals registering  
               voters in Southern California have been arrested and  
               charged in schemes to change voters' registrations from  
               Democratic to Republican without the voters' consent.

               Additionally, numerous complaints in recent years have  
               uncovered a common tactic of dishonest signature gatherers,  
               who tell voters that they need to sign multiple times to  
               have their signature counted on an initiative petition.   
               These signature gatherers then get voters to sign other  
               initiative petitions without disclosing to the voter what  
               those petitions would do.

               Unfortunately, such problems are all too common because  
               people who register voters or gather signatures on  
               petitions are often paid a "bounty" for each person that  
               they register or for each signature that they gather.  As a  







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               result, signature gatherers and people registering voters  
               have a financial incentive to mislead voters to get them to  
               sign a petition or to re-register to vote.

               Previous efforts to limit the ability to pay "bounties" for  
               collecting signatures on petitions or registering voters  
               have failed due to concerns that such laws may make it more  
               difficult for grassroots organizations to gather signatures  
               on petitions and register voters.

               In reflection of those concerns, AB 2101 takes a narrower  
               approach.  AB 2101 cracks down on initiative fraud and  
               voter registration fraud by allowing courts to ban  
               individuals who are convicted of fraud from being paid to  
               collect signatures on initiative petitions or for  
               registering voters.  Law abiding citizens who are paid to  
               register voters and collect signatures on petitions would  
               not be affected by this bill.  Instead, this bill takes aim  
               at those who have been convicted of fraudulent behavior,  
               and gives judges the tools to prevent those individuals  
               from continuing to threaten the integrity of California's  
               elections.

           Similar Laws in Other States  :  The provisions of this bill are  
          similar to laws enacted in Arizona and Oregon in 2009 which  
          prohibit petition circulators who are convicted of fraud from  
          being compensated for collecting signatures on initiative,  
          referendum, or recall petitions.  In 2009, Oregon's Legislature  
          approved and the Governor signed HB 2005, which among other  
          provisions prohibits a person from being eligible to register as  
          a petition circulator if that person has had criminal or civil  
          penalties imposed against him or her for a violation of the  
          state's laws governing the circulation of petitions.  In  
          Arizona, the Legislature approved and the Governor approved SB  
          1091, which among other provisions prohibits a person convicted  
          of engaging in a pattern of petition fraud from participating in  
          any initiative, referendum, or recall campaign for five years.

           Author's Amendments  :  Following passage in the Elections  
          Committee, the author's office worked with committee counsel to  
          address several areas of potential concern, either raised  
          earlier by the American Civil Liberties Union or committee  
          counsel.  As a result of this cooperative effort, the author has  
          agreed to the following amendments to the measure, as proposed  
          to be amended:







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          New Mechanism for Potential Review of the Ban Order Based on  
          Purported Extenuating Circumstances  :  As noted, this bill  
          permits a court to issue an order preventing someone who is  
          convicted of voter registration fraud from being paid to  
          circulate petitions or register voters.  The bill previously did  
          not provide any express mechanism for review of the court's  
          order.  Thus an individual banned under the measure from  
          participating in paid voter registration or petition circulation  
          activities arguably did not have any means to petition the court  
          in the future to review or reverse the order for any reason due  
          to alleged changed or extenuating circumstances.  The author  
          therefore has agreed to amend the bill as follows to address  
          this issue:

          On page 2, delete lines 9 and 10 and insert:

          (b)  A person against whom an order is issued may, upon a  
          showing of good cause, petition the court for reconsideration of  
          the court's order.

          On page 2, delete lines 21 and 22 and insert:

          (b)  A person against whom an order is issued may, upon a  
          showing of good cause, petition the court for reconsideration of  
          the court's order.

           Criminalizing the Violation of a Civil Court Order  :  This bill  
          states that any person found in violation of the civil order  
          issued by the court, prohibiting their participation in voter  
          registration or petition circulation for pay, is guilty of a  
          criminal misdemeanor.  While potential punishment for a  
          violation of the court's civil order would appear warranted,  
          using criminal sanctions for the violation of the civil order  
          seems inappropriate.  Reasonable civil penalties would appear  
          more appropriate to satisfy the aim of deterrence, and more  
          appropriate in punishing a violation of a civil court order.   
          The author therefore has agreed to amend the bill as follows to  
          address this issue:

          On page 2, following new subdivision (b) in Section 1 of the  
          bill as detailed above, insert:

          (c)  A person who violates an order issued by the court pursuant  
          to subdivision (a) may be subject to a civil penalty not to  







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          exceed $25,000 (twenty five thousand dollars).

          On page 2, following new subdivision (b) in Section 2 of the  
          bill as detailed above, insert:

          (c)  A person who violates an order issued by the court pursuant  
          to subdivision (a) may be subject to a civil penalty not to  
          exceed $25,000 (twenty five thousand dollars).

           Indefinite Ban on Participating in Voter Registration and  
          Petition Circulation  :  This bill arguably could permit a court  
          to issue a lifetime order preventing someone who is convicted of  
          initiative or voter registration fraud from ever again being  
          paid to circulate petitions or register voters in perpetuity.   
          Similar legislation in Arizona limits the prohibition to five  
          years.  The author therefore has agreed to amend the bill to  
          track the Arizona approach to this issue as follows:

          On page 2, following new subdivision (c) in Section 1 of the  
          bill as detailed above insert:

          (d)  A person against whom an order is issued may be prohibited  
          from participating for a period of up to five years in the voter  
          registration activities described in subdivision (a).

          On page 2, following new subdivision (c) in Section 2 of the  
          bill as detailed above insert:

          (d)  A person against whom an order is issued may be prohibited  
          from participating for a period of up to five years in the  
          signature gathering activities described in subdivision (a).
           
          ARGUMENTS IN SUPPORT  :  In support, the California Association of  
          Clerks and Election Officials state:

              This proposal will prohibit those found in violation of  
              voter registration or petition circulation activities from  
              being paid or receiving other consideration for  
              participating in these activities.  Paid voter registration  
              and petition circulation drives provide motive for those  
              inclined to falsify these documents.  Removing the payment  
              if a person is found guilty of these prohibited activities  
              will hopefully eliminate that motive and strengthen the  
              existing penalties for such illegal activities.
           







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          Previous Legislation  :  SB 34 (Corbett) of 2009 would have made  
          it a misdemeanor for a person to pay or to receive money or any  
          other thing of value based on the number of signatures collected  
          on a state or local initiative, referendum, or recall petition.   
          SB 34 was vetoed by the Governor, who expressed concern that it  
          could "make it more difficult for grassroots organizations to  
          gather the necessary signatures and qualify measures for the  
          ballot."

          SB 1686 (Denham) of 2008 would have made it a misdemeanor,  
          punishable by a fine not exceeding $5,000, by imprisonment in a  
          county jail not exceeding one year, or by both the fine and  
          imprisonment, for a person, company, organization, company  
          official, or other organizational officer in charge of a person  
          who circulates an initiative, referendum, or recall petition to  
          knowingly direct or permit the person to make a false affidavit  
          concerning the initiative, referendum, or recall petition.  SB  
          1686 was vetoed by the Governor, though he did not express any  
          policy objections to the bill.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Association of Clerks and Election Officials

           Opposition 
           
          None on file
           
          Analysis Prepared by  :   Drew Liebert / JUD. / (916) 319-2334