BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
2
1
0
AB 2101 (Fong) 1
As Amended May 20, 2010
Hearing date: June 29, 2010
Elections Code
SM:dl
VOTER FRAUD
HISTORY
Source: Author
Prior Legislation: SB 34 (Corbett) (2009) - vetoed
SB 1686 (Denham) (2008) - vetoed
Support: California Association of Clerks and Elected Officials
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUES
WHEN A PERSON IS CONVICTED OF SPECIFIED CRIMES RELATING TO VOTER
REGISTRATION, SHOULD A COURT HAVE THE AUTHORITY TO ORDER AS A
CONDITION OF PROBATION THAT THE OFFENDER BE PROHIBITED FROM
RECEIVING MONEY OR OTHER VALUABLE CONSIDERATION FOR ASSISTING
ANOTHER PERSON TO REGISTER TO VOTE BY RECEIVING THE COMPLETED
AFFIDAVIT OF REGISTRATION?
WHEN A PERSON IS CONVICTED OF SPECIFIED CRIMES RELATING TO
SIGNATURE GATHERING FOR PETITIONS, SHOULD A COURT HAVE THE
AUTHORITY TO ORDER AS A CONDITION OF PROBATION THAT THE OFFENDER
(More)
AB 2101 (Fong)
PageB
BE PROHIBITED FROM RECEIVING MONEY OR OTHER VALUABLE
CONSIDERATION FOR GATHERING SIGNATURES ON AN INITIATIVE,
REFERENDUM, OR RECALL PETITION?
PURPOSE
The purpose of this bill is to provide that (1) upon conviction
of a violation of specified crimes relating to voter
registration, the court may order as a condition of probation
that the convicted person be prohibited from receiving money or
other valuable consideration for assisting another person to
register to vote by receiving the completed affidavit of
registration; and (2 ) upon conviction of a violation of
specified crimes relating to signature gathering for petitions,
the court may order as a condition of probation that the
convicted person be prohibited from receiving money or other
valuable consideration for gathering signatures on an
initiative, referendum, or recall petition.
Voter Registration Violations
Current law makes a number of fraudulent activities relating to
voter registration a criminal offense, including the following:
Registering a person, including oneself, who is not
entitled to register to vote;
Registering a fictitious person to vote;
Registering a person to vote under a false name or
address;
Interfering with the return of a completed affidavit of
voter registration;
Refusing to return a completed affidavit of
registration;
Altering the content of an affidavit of registration
without the consent of the affiant; and,
Misusing the information from an affidavit of
registration.
Penalties vary for these offenses but most are alternate
(More)
AB 2101 (Fong)
PageC
felony/misdemeanors, punishable by up to 16 months, 2 or 3 years
in state prison or up to a year in the county jail. (Elections
Code 18100 - 18111.)
This bill provides that, upon conviction of a violation of any
of the provisions listed above relating to voter registration,
the court may order as a condition of probation that the
convicted person be prohibited from receiving money or other
valuable consideration for assisting another person to register
to vote by receiving the completed affidavit of registration.
Signature Gathering Violations
Current law makes a number of fraudulent activities relating to
signature gathering for petitions, including:
Misrepresentation by the circulator of a petition of the
contents, purport, or effect of the petition;
Refusal by the circulator to allow a petition signer to
read the petition;
Obscuring the summary of a measure prepared by the
Attorney General from the view of a prospective signer;
Offering or giving money or other valuable consideration
in exchange for a person's signature on a petition;
Affixing or soliciting false or forged signatures, or
fictitious names, on a petition;
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,
Making a false affidavit concerning a petition.
Penalties vary for these offenses from misdemeanors punishable
by up to six months in county jail to alternate
felony/misdemeanors, punishable by up to 16 months, 2 or 3 years
in state prison or up to a year in the county jail. (Elections
Code 18600 - 18603; 18610 - 18614; 18620 - 18622; 18640;
18650; 18660; 18661.)
This bill provides that, upon conviction of a violation of any
(More)
AB 2101 (Fong)
PageD
of the provisions listed above relating to signature gathering
for petitions, the court may order as a condition of probation
that the convicted person be prohibited from receiving money or
other valuable consideration for gathering signatures on an
initiative, referendum, or recall petition.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
(More)
AB 2101 (Fong)
PageE
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
--------------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
(More)
AB 2101 (Fong)
PageF
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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 to common.
In the last two election cycles, individuals
registering voters in Southern California have been
arrested and charged in schemes to change voters'
partisan affiliations without the voters' consent.
Additionally, the Orange County Register reported on
complaints of a similar scheme in Southern California
earlier this year.
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 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
(More)
AB 2101 (Fong)
PageG
"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.
2. Abuses Have Led to Similar Laws in Other States
To qualify an initiative to be placed on the statewide ballot,
proponents must gather hundreds of thousands of signatures. The
need to collect this large number of signatures within a limited
timeframe has given rise to an industry of petition management
firms that pay signature gatherers a bounty based on the number
of signatures they collect. Not surprisingly, this has resulted
in numerous reports of fraud and abuse in the
signature-gathering process. Voters have complained that they
were misled into signing initiative petitions that they do not
support or had their party affiliations changed without their
consent.
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
(More)
AB 2101 (Fong)
PageH
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.
(More)
3. Previous Legislation and What This Bill Would Do
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. The veto message stated:
The California Constitution provides an important
system of checks and balance by giving the people
direct control over their government through
initiative, referendum and recall. This bill would
limit the initiative process by prohibiting a person
from paying or receiving money or anything of value
based on the number of signatures obtained on such
petitions.
As I have stated when vetoing similar legislation,
prohibitions on per-signature payments will make it
more difficult for grassroots organizations to gather
the necessary signatures and qualify measures for the
ballot. Therefore, I am unable to sign this bill.
SB 1686 (Denham) of 2008 would have made it a misdemeanor,
punishable by up to one year in a county jail, a fine of up to
$5,000, or both, 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. That veto message read:
The historic delay in passing the 2008-2009 State
Budget has forced me to prioritize the bills sent to
my desk at the end of the year's legislative session.
Given the delay, I am only signing bills that are the
highest priority for California.
This bill does not meet that standard and I cannot
(More)
AB 2101 (Fong)
PageJ
sign it at this time.
This bill, as amended, takes a slightly different approach to
the problem of signature-gathering fraud. Unlike these previous
bills, it does not create any new crime but would authorize the
court to impose a condition of probation on a person who had
been convicted of existing crimes involving fraud related to
signature gathering or voter registration. If the person were
convicted of a crime involving fraud in relation to voter
registration, the court could order as a condition of probation
that the convicted person be prohibited from receiving money or
other valuable consideration for assisting another person to
register to vote by receiving the completed affidavit of
registration.
If the person were convicted of a crime involving fraud in
relation to signature gathering for petitions, the court could
order as a condition of probation that the convicted person be
prohibited from receiving money or other valuable consideration
for gathering signatures on an initiative, referendum, or recall
petition.
4. Validity of Probation Conditions
In People v. Lent, the California Supreme Court enunciated the
rule regarding what probation conditions a court may impose:
The Legislature has placed in trial judges a broad
discretion in the sentencing process, including the
determination as to whether probation is appropriate
and, if so, the conditions thereof. (Pen. Code,
1203 et seq.) A condition of probation will not be
held invalid unless it "(1) has no relationship to the
crime of which the offender was convicted, (2) relates
to conduct which is not in itself criminal, and (3)
requires or forbids conduct which is not reasonably
related to future criminality . . . ." Conversely, a
condition of probation which requires or forbids
conduct which is not itself criminal is valid if that
conduct is reasonably related to the crime of which
AB 2101 (Fong)
PageK
the defendant was convicted or to future
criminality.(People v. Lent, 15 Cal. 3d 481, 486 (Cal.
1975), citations omitted.)
Under the test adopted in Lent, this condition of probation
would appear to be one which a court could validly impose in
connection with a conviction for these offenses. Although the
activity in would prohibit is not itself illegal, it is closely
related to the crime for which the person is on probation and is
reasonably related to future criminality in that it was this
very type of activity that the person conducted in an illegal
fashion which resulted in their being placed on probation.
WOULD THIS BE A VALID CONDITION OF PROBATION?
WOULD IT HELP PREVENT FUTURE VOTER FRAUD VIOLATIONS BY THIS
OFFENDER OR POTENTIALLY DETER OTHERS FROM COMMITTING THESE
OFFENSES?
***************