BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   August 29, 2012

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                  Paul Fong, Chair
                   AB 216 (Swanson) - As Amended:  August 15, 2012

                          CONCURRENCE IN SENATE AMENDMENTS

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          |ASSEMBLY:  |     |(May 31, 2011)  |SENATE: |25-12|(August 21,    |
          |           |     |                |        |     |2012)          |
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                    (vote not relevant)
           
          SUBJECT  :   Voters: residency confirmation.

           SUMMARY  :  Permits county elections officials to use 
          change-of-address information from consumer credit reporting 
          agencies, instead of using change-of-address information from 
          the United States Postal Service (USPS), for the purpose of 
          updating and maintaining the accuracy of voter registration 
          lists.

           The Senate amendments  delete the Assembly version of the bill, 
          and instead:

          1)Permit a county elections official, when conducting a 
            pre-election residency confirmation procedure as required 
            pursuant to existing law, to contract with a consumer credit 
            reporting agency to obtain change-of-address data, in lieu of 
            mailing residency confirmation postcards or contracting with 
            the USPS to obtain postal service change-of-address data.  
            Require any such contract with a consumer credit reporting 
            agency to comply with the following conditions:

             a)   Require the elections official to provide the consumer 
               credit reporting agency with the name and residence address 
               of each registered voter in the county, except for the 
               names and addresses of registered voters whose 
               registrations are deemed confidential pursuant to specified 
               provisions of existing law;

             b)   Require the consumer credit reporting agency to search 
               its databases for each name and address provided by the 
               elections official and to report to the elections official 







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               any information indicating that the registered voter 
               changed his or her address; and,

             c)   Provide that the consumer credit reporting agency may 
               use the information provided by a county elections official 
               only for the purpose of searching its database and 
               reporting to the elections official as described above, and 
               prohibit the credit reporting agency from retaining any 
               information received from the county elections official.

          2)Require a county elections official who contracts with a 
            consumer credit reporting agency pursuant to the provisions 
            outlined above to send a forwardable notice, as specified, to 
            each voter for which the official receives change-of-address 
            information from the credit reporting agency.  Require the 
            notice to include a postage-paid and preaddressed return form 
            to allow the voter to verify or correct his or her address 
            information.  Require the elections official to take the 
            following action with respect to a voter for which the 
            official receives change-of-address information from the 
            credit reporting agency:

             a)   If the voter responds to the notice mailed as specified 
               above, and indicates that he or she has moved to a new 
               address within the same county, update that voter's 
               registration with the new residence address if the voter's 
               signature on the returned notice matches the signature on 
               file for that voter;

             b)   If the voter responds to the notice mailed as specified 
               above, and indicates that he or she has moved to a new 
               address in another county, cancel that voter's registration 
               if the voter's signature on the returned notice matches the 
               signature on file for that voter; or,

             c)   If the voter does not respond to the notice mailed as 
               specified above, and does not otherwise verify in a signed 
               writing that he or she has moved to a new residence 
               address, take no action with respect to that voter's 
               registration.

          3)Specify that a voter's registration may only be moved to the 
            inactive list of voters, and may not be canceled, if the voter 
            fails to vote in a specified number of elections and does not 
            respond to a specified residency confirmation mailing.







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          4)Make technical and corresponding changes.

           EXISTING LAW  : 

          1)Requires each county elections official to conduct a 
            pre-election residency confirmation of registered voters 
            pursuant to one of the following procedures prior to each 
            primary election:

             a)   By mailing a non-forwardable postcard to each registered 
               voter in the county who has not voted at an election in the 
               six months preceding the start of the confirmation 
               procedure;

             b)   By contracting with the USPS to obtain use of the postal 
               service change-of-address data such as the National Change 
               of Address System (NCOA); or,

             c)   By including the return address of the elections 
               official's office along with the language "Address 
               Correction Requested" on the outside portion of the sample 
               ballot or sample ballot envelope mailed to voters at an 
               election conducted within the last six months before the 
               start of the confirmation process.  If an elections 
               official uses this procedure for the pre-election residency 
               confirmation, it must confirm the addresses of voters who 
               were not eligible to vote at an election during the six 
               months preceding the start of the confirmation process, or 
               who were not mailed a sample ballot with an address 
               correction requested, by either mailing residency 
               confirmation postcards to those voters or by contracting 
               with the USPS to obtain change-of-address data.

          2)Provides that the following actions shall be taken with 
            respect to information that the county elections official 
            receives as a result of the pre-election residency 
            confirmation process:

             a)   If the elections official does not receive any 
               information that would indicate that the voter has moved, 
               the official takes no action with respect to that voter's 
               registration.

             b)   If NCOA data indicates that the voter has moved and left 







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               no forwarding address, the voter's registration is placed 
               on the inactive list.

             c)   If a postcard or sample ballot is returned as 
               undeliverable and without a forwarding address, the 
               registration of that person is placed on the inactive list, 
               and the elections official must send the voter a 
               forwardable postcard asking the voter to confirm his or her 
               residence address.

               i)     If the voter does not reply to this forwardable 
                 postcard, and the voter does not vote between the time of 
                 that mailing and the second federal general election 
                 conducted after that mailing, the voter's registration 
                 may be canceled.

               ii)    If the voter replies to the forwardable postcard, 
                 and indicates that he or she is still residing at the 
                 same address, the voter's registration is moved back to 
                 the active voter list.

               iii)   If the voter replies to the forwardable postcard, 
                 and indicates that he or she has moved, and is now 
                 residing at an address elsewhere in the same county, the 
                 voter's registration is updated to that new address and 
                 the registration is moved back to the active voter list.

               iv)    If the voter replies to the forwardable postcard, 
                 and indicates that he or she has moved, and is now 
                 residing at an address in a different county, the voter's 
                 registration is canceled.

             d)   If the postcard or sample ballot is returned with a 
               forwarding address for the voter, or if the NCOA 
               information provides a forwarding address for the voter, 
               the elections official takes the following actions:

               i)     If the forwarding address is in the same county as 
                 the address at which the voter is currently registered to 
                 vote, the voter's registration address is updated by the 
                 elections official to reflect the new address provided by 
                 the post office, and the voter is mailed a postcard 
                 indicating that the voter's registration will be changed 
                 unless he or she notifies the elections official within 
                 15 days that the change-of-address was not a change of 







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                 the voter's permanent residence.

               ii)    If the forwarding address is not in the same county 
                 as the address at which the voter is currently registered 
                 to vote, the registration of that person is placed into 
                 the inactive list, and the elections official must send 
                 the voter a notice asking the voter to advise the 
                 elections official whether the change-of-address is a 
                 permanent change of residence or not, or to advise the 
                 elections official if the change is incorrect. 

                  (1)       If the voter does not reply to this notice, 
                    and the voter does not vote between the time of that 
                    notice and the second federal general election 
                    conducted after that notice, the voter's registration 
                    may be canceled.

                  (2)       If the voter replies to the notice, and 
                    indicates that he or she is still residing at the same 
                    address, the voter's registration is moved back to the 
                    active voter list.

                  (3)       If the voter replies to the notice, and 
                    confirms that he or she has moved, but to an address 
                    that is elsewhere in the same county, the voter's 
                    registration is updated to that new address and the 
                    registration is moved back to the active voter list.

                  (4)       If the voter replies to the notice, and 
                    confirms that he or she has moved to a different 
                    county, the voter's registration is canceled.

          3)Provides that voters who are on the inactive list of voters 
            shall not receive election materials and are not included in 
            calculations to determine the number of signatures required 
            for qualification of candidates and measures, precinct size, 
            or other election administration related processes.

          4)Provides that any voter who has been placed on the inactive 
            list of voters and who offers to vote or who notifies the 
            elections official of a continued residency shall be removed 
            from the inactive list and placed on the active voter list.

           AS PASSED BY THE ASSEMBLY  , this bill allowed the California 
          Community Colleges to receive full funding for courses offered 







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          in correctional institutions.
           
          FISCAL EFFECT  :  Unknown.  This bill is keyed non-fiscal by the 
          Legislative Counsel.

           COMMENTS  :  

           1)Purpose of the Bill  :  According to the author:

               Allowing counties to use credit bureau data in lieu of 
               USPS change-of-address data will reduce waste and save 
               California counties millions of dollars in the future, 
               because credit bureau change-of-address data is simply 
               more up-to-the-minute and comprehensive than USPS 
               data.  

               Before each election, elections officials must confirm 
               they have the most up-to-date address for each 
               registered voter in the county by using one of two 
               procedures to get the job done:

               1.        Mailing to All Registered Voters. Under this 
               method in California Elections Code (EC) section 2220, 
               elections officials send a postcard to each registered 
               voter to collect any address changes since the last 
               election.  Because of the cost involved in mailing a 
               postcard to every voter, most elections officials do 
               not choose this option.

               2.        Using U.S. Postal Service Change-of-Address 
               Data. Under this method permitted in EC section 2222, 
               elections officials utilize change-of-address data 
               from the United States Postal Service (USPS) and send 
               a postcard only to those voters who appear to have 
               moved according to USPS National Change-of-Address 
               (NCOA) data?. 

               Major credit bureaus are widely considered the most 
               credible and reliable sources for up-to-date address 
               data for people living in the United States. This is 
               because people are far more likely to update their 
               address with their financial institutions than they 
               are with the USPS. This bill would give county 
               elections officials the option of using credit bureau 
               data in lieu of USPS data to get updated address 







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               information on voters before each election. Under this 
               bill, county elections officials who choose this 
               option would be required to:

                        Release only the names and addresses of each 
                    registered voter to a consumer credit reporting 
                    agency, as defined in Civil Code section 
                    1785.2(d).

                        Send a forwardable postcard, similar to the 
                    current postcard generated based on NCOA data, to 
                    all voters who appear to have moved based on 
                    matching data received from the credit reporting 
                    agency. 

                        Update voter addresses and remove voters who 
                    have moved out of county, only after the voter 
                    responds to the postcard by sending a signed, 
                    written confirmation that the voter has moved and 
                    wish to change their address or be removed from 
                    the voter rolls.  

               The bill prohibits credit bureaus from retaining name 
               and address data received and permits elections 
               officials to receive only change-of-address data back 
               from the credit bureau. No sensitive data, such as 
               social security number or credit history, is shared in 
               either direction.  

               Orange County has tested and proved the dramatic cost 
               savings of this approach. In addition to complying 
               with current law, the county contracted with Experian 
               to check the addresses of 250,000 registered voters 
               and received 122,000 possible new addresses. The 
               county sent postcards to each and success was 
               overwhelming: 18,800 voters responded in writing 
               confirming their move and asking the county to update 
               their address information. This saved Orange County 
               over $44,000 in the first election alone - savings 
               that will grow with each passing election as the 
               county avoids repeatedly mailing materials to 18,800 
               out-of-date addresses. Orange County's full report on 
               this pilot can be viewed at www.OCvote.com.

           1)Existing Voter File Maintenance Procedures  :  Under existing 







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            law, each county elections official is required to conduct a 
            pre-election residency confirmation procedure, as specified, 
            prior to each statewide primary election.  Generally, county 
            elections officials comply with this requirement by mailing 
            nonforwardable residency confirmation postcards to registered 
            voters, or by contracting with the USPS to obtain 
            change-of-address information.  State law also allows the 
            residency confirmation through the mailing of sample ballots, 
            under specified circumstances.  If information received by the 
            elections official through the pre-election residency 
            confirmation procedure suggests that a voter has moved, the 
            registration of that voter may be canceled or updated, or the 
            voter's registration may be placed on the inactive list of 
            voters, depending on the type of information received by the 
            official.  If an elections official does not receive any 
            information to suggest that a voter has moved as a result of 
            the pre-election residency confirmation procedure, the 
            registration of the voter is not affected.

          In addition to these pre-election residency confirmation 
            procedures, voter registration lists are regularly updated 
            with information from death records from the Department of 
            Health Services and from county registrars of births and 
            deaths, lists of individuals convicted of felonies and 
            sentenced to prison from the Department of Corrections and 
            Rehabilitation and from federal courts, change-of-address 
            information and other voter information from the Department of 
            Motor Vehicles and other state and federal agencies, 
            notifications from other jurisdictions that a voter has 
            reregistered in a new location, receipt of official mailings 
            returned by the USPS as undeliverable, and direct notification 
            from individual voters that they have moved to another 
            jurisdiction or otherwise changed their registration 
            information.  
           
           2)Information from Government Entities vs. Information from 
            Private Third Parties  :  Generally, existing state law allows a 
            voter's registration to be canceled, or to be placed on the 
            inactive list for possible eventual cancelation, only when the 
            elections official receives information from a governmental 
            entity or from the voter himself or herself that indicates 
            that the voter has moved or otherwise should no longer appear 
            on the active list of voters.  Information from private third 
            parties can be used by the elections official to identify 
            voters who may have moved for additional follow-up research, 







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            but the elections official cannot cancel a voter's 
            registration based solely on information from non-governmental 
            sources other than the voter.  This bill maintains that 
            policy, allowing a county elections official to use 
            information from a private consumer credit reporting bureau to 
            do additional follow-up with voters who may have moved, but 
            prohibiting a voter's registration from being canceled solely 
            based on information from the credit bureau.

           3)No Updates Unless Voter Responds  :  Under the pre-election 
            residency confirmation procedures that are used under existing 
            law, there are two ways in which the voter registration files 
            can be "cleaned-up."  First, county elections officials can 
            update the voter rolls based on any affirmative response they 
            receive from a registered voter.  The second way that these 
            procedures allow the voter rolls to be "cleaned-up," however, 
            is that for any voter for whom the county receives information 
            from USPS indicating that the voter has moved, but from whom 
            the county does not receive an affirmative response, the 
            county can put that person on the inactive list of voters, and 
            that voter's registration is canceled eventually if the voter 
            does not vote in the next two federal general elections.

          On the other hand, as noted above, if a county were to use 
            change-of-address information from a consumer credit reporting 
            agency pursuant to the provisions of this bill for its 
            pre-election residency confirmation, the only way the voter 
            file gets "cleaned-up" is when a voter affirmatively responds 
            to a mailing that is sent out in response to change-of-address 
            information from the credit agency.  This bill does not permit 
            any action to be taken with respect to a voter's registration 
            if the county elections official receives information from the 
            credit agency indicating that the voter has moved unless the 
            voter affirmatively responds to the mailing that is sent out 
            by the county elections official.  For voters that don't 
            respond to such a mailing, the county elections official does 
            not have the option of canceling those registrations, nor does 
            the elections official have the option of placing those 
            registrations on the inactive list of voters.  As a result, 
            even if the use of information from credit reporting agencies 
            allows county elections officials to receive a larger number 
            of valid addresses for voters than the use of NCOA data, it is 
            possible that a county using the procedure outlined by this 
            bill will have a larger number of voters who have moved, but 
            for whom the county is unable take any action with respect to 







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            those voter's registrations as a result of the pre-election 
            residency confirmation process.  For some of the voters who 
            don't respond, the registration records will still be updated 
            when the elections official receives undeliverable election 
            materials that are returned by the postal service (including 
            sample ballots and vote by mail ballots), when the voter 
            registers to vote in another county, or when the voter updates 
            his or her address with the DMV.  For other voters, however, 
            the pre-election residency confirmation process outlined in 
            this bill will result in those voters remaining on the active 
            list, even though the same voters would have had their 
            registrations moved to the inactive list of voters if the 
            county had used NCOA data or mailed preeelction residency 
            confirmation postcards pursuant to existing law.  
           
           4)Alternative Residency Confirmation Process  :  SB 1313 
            (Mountjoy), Chapter 5, Statutes of 1996, permits, but does not 
            require, a county to conduct an alternative residency 
            confirmation procedure for registered voters who have not 
            voted in recent elections.  Under this procedure, a county 
            sends a forwardable postcard to every voter who has not voted 
            in the preceding four years with a request that the voter 
                                                                       confirm his or her residence address.  If a voter returns the 
            postcard and confirms that he or she continues to live at the 
            same address, the voter's registration remains on the active 
            voter list.  If a voter returns the postcard and indicates 
            that he or she has moved, that voter's registration is updated 
            to the voter's new address if the voter moved within the same 
            county, or is canceled if the voter moved to another county.  
            If the voter does not respond to the alternative residency 
            confirmation postcard, and the postcard is not returned to the 
            county, the voter's registration is moved to the inactive 
            list.

          When a voter's registration is moved to the inactive list of 
            voters as the result of the alternative residency confirmation 
            process, a provision of state law provides that the voter's 
            registration may be canceled if the voter does not vote or 
            offer to vote between the time of the alternative residency 
            confirmation mailing and two federal general elections after 
            the mailing.  Despite the fact that state law appears to allow 
            the cancelation of registrations in this circumstance, 
            however, in practice, registrations cannot be canceled when a 
            voter's registration has been placed on the inactive list of 
            voters as the result of the alternative residency confirmation 







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            process due to a possible conflict with federal law and due to 
            a stipulation between the state and the federal government.

          In 1993, the federal government enacted the National Voter 
            Registration Act (NVRA) of 1993, commonly referred to as 
            "motor voter," to make it easier for Americans to register to 
            vote and to remain registered to vote.  Among other 
            provisions, NVRA prohibited a state from removing the name of 
            any person from the official list of voters registered to vote 
            in an election for federal office by reason of the person's 
            failure to vote.  At the time the Legislature was considering 
            SB 1313, committee analyses in both houses indicated that the 
            bill could be inconsistent with this provision of the NVRA, 
            and one analysis noted that a federal court case that was 
            pending at the time was considering the issue of using a 
            "non-voting trigger" to send residency confirmation cards to 
            voters.

          In October 1997, the United States filed a motion for further 
            relief in that court case.  In its motion, the United States 
            contended that the alternative residency confirmation 
            procedure in California law was inconsistent with the NVRA, as 
            described above.  In February 1998, the state of California, 
            without conceding that the alternative residency confirmation 
            procedure was contrary to the NVRA, entered into a stipulation 
            with the United States that prohibited the cancellation of the 
            registration of any voter who was moved to the inactive list 
            as a result of the alternative residency confirmation process. 
             To the committee staff's knowledge, this stipulation has not 
            been modified, and remains in effect.

          Subsequent to the adoption of that stipulation, the federal Help 
            America Vote Act (HAVA) of 2002 amended the provisions of the 
            NVRA that prohibit states from canceling voters' registrations 
            for failure to vote.  Specifically, the NVRA now provides that 
            the prohibition against removing a name of a person from the 
            list of registered voters for failure to vote shall not be 
            construed to prohibit a state from using procedures outlined 
            in the NVRA to remove an individual from the official list of 
            voters if the individual has not responded to a specified 
            notice from the county elections official and does not vote 
            nor appear to vote in two or more consecutive federal general 
            elections.  However, the specified procedures included in the 
            NVRA deal with change-of-address information supplied by the 
            USPS, and other voter registration file maintenance based on 







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            the grounds that registrants have changed residence.  Because 
            the alternative residency confirmation procedure is not 
            triggered by any information that suggests that the voter has 
            moved, but rather is triggered entirely by a person's failure 
            to vote during a specified time period, it appears that the 
            alternative residency confirmation procedure may still be in 
            conflict with federal law, notwithstanding the amendments made 
            to the NVRA by HAVA.  Furthermore, because the stipulation 
            described above remains in effect, the state continues to be 
            prohibited from canceling the registrations of voters based on 
            the alternative residency confirmation process, regardless of 
            whether such an action is permitted by the NVRA.  In light of 
            this fact, notwithstanding the plain language of state 
            statute, under existing law, when a voter's registration is 
            placed on the inactive list of voters as a result of the 
            alternative residency confirmation procedure, that 
            registration cannot be canceled due to the voter's failure to 
            vote.

          This bill amends the Elections Code to delete language that 
            allows a voter's registration to be canceled for failure to 
            vote when that registration has been placed on the inactive 
            list of registered voters as the result of the alternative 
            residency confirmation procedure, thereby conforming to 
            existing practice, as described above. 

           5)Prior Version  :  The prior version of this bill, which was 
            approved by the Assembly, dealt with funding for the 
            California Community Colleges.  Those provisions were removed 
            from this bill in the Senate, and the current contents were 
            added.  As a result, this bill has been re-referred to this 
            committee pursuant to Assembly Rule 77.2

           REGISTERED SUPPORT / OPPOSITION  :   

           Support                                   Opposition
           
          Secretary of State Debra Bowen (sponsor)     None on file.
          California Association of Clerks and Election Officials
          California State Association of Counties

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










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