BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: AB 651 HEARING DATE:
6/7/11
AUTHOR: HUESO ANALYSIS BY:
Darren Chesin
AMENDED: 6/1/11
FISCAL: YES
SUBJECT
Initiatives: paid circulators
DESCRIPTION
Existing law requires every state or local initiative
petition to contain a statement notifying voters of their
right to inquire whether the petition is being circulated
by a paid signature gatherer or volunteer.
Establishes a process for proposing initiative measures
submitted to voters in California and sets forth
qualifications for persons who circulate initiative
petitions.
Provides that a person who is a voter or who is qualified
to register to vote in this state may circulate a state
initiative or referendum petition anywhere within the
state.
This bill requires professional petition firms, as defined,
to register with the Secretary of State (SOS) and would
also prohibit contracts for circulating petitions that make
payment contingent upon the measure qualifying for the
ballot. Specifically, this bill:
Defines the term, "professional petition firm," as an
entity that pays individuals to circulate petitions and
gather signatures for the purpose of qualifying an
initiative for a state or local election ballot.
Requires a professional petition firm to register
annually with the SOS in order to pay individuals to
circulate petitions and collect signatures to qualify an
initiative on a state or local election ballot.
Requires the registration of a professional petition
firm to include the full name, address, and partners,
owners, or officers of the firm, and to be accompanied
by a registration fee established by the SOS.
Requires the SOS to use the fee revenue to maintain on
its Internet Web site a directory of professional
petition firms and to defray any other associated costs
with the requirements of this bill.
Requires a member of a professional petition firm to
review the law relating to obtaining petition signatures
with each paid petition circulator before a paid
petition circulator can obtain any signatures for the
firm.
Requires a copy of the training materials provided to
the prospective petition firm employees to be submitted
by the firm to the SOS.
Requires the firm to submit a statement to the SOS for
each circulator, signed by the circulator and the
individual conducting the review, that the circulator
has received the review.
Provides that the SOS may seek a civil penalty up to
$10,000 from a firm that fails to register and up to
$5,000 from a firm that fails to submit their training
materials.
Provides that a person who has been convicted of
petition-related perjury, fraud, theft, and other
specified crimes shall not be permitted to operate a
professional petition firm or gather signatures for a
petition being circulated to qualify an initiative for a
state or local ballot.
Provides that a contract for circulating a petition or
collecting signatures for a proposed state or local
measure is void if it makes payment contingent upon the
measure being qualified for the ballot.
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BACKGROUND
Until the 1980s, courts upheld bans on paid signature
gatherers. That changed in 1988, when the U.S. Supreme
Court invalidated Colorado's ban in the Meyer v. Grant
decision as a violation of the First Amendment's guarantee
of free speech.
In Buckley v. American Constitutional Law Foundation
(1999), the U.S. Supreme Court examined a Colorado law that
provided a number of other restrictions on the signature
collection process for ballot initiatives. In Buckley , the
court invalidated Colorado's requirement that paid petition
circulators wear a badge identifying themselves and
identifying that they are paid circulators. The court
stated the requirement to wear badges inhibits
participation in the petitioning process, "because the
badge requirement compels personal name identification at
the precise moment when the circulator's interest in
anonymity is greatest, it does not qualify for inclusion
among 'the more limited election process identification
requirements.'" However, the Buckley decision did not rule
on the validity of the requirement that a circulator wear a
badge stating whether a petition circulator was paid or a
volunteer.
Other Efforts to Curb Signature Gathering Fraud : On May
15, 2009, the Governor of Colorado signed House Bill 1326,
which will require signature-gathering firms to be licensed
by the state and would prohibit them from paying petition
circulators by the signature. The bill will also impose
several new accountability measures such as tougher rules
for petition notarization and will create a system by which
a circulator's signatures could be invalidated if certain
requirements are not met.
A 2009 Oregon bill was signed into law that will, among
other things, increase the time allowed for background
checks of prospective signature gatherers from three days
to five, give the state Elections Division access to state
police databases, and authorize the Secretary of State to
invalidate signatures gathered by anyone convicted of
fraud, forgery or identity theft and signatures gathered by
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circulators who are not properly registered with the state
or who have been found liable for certain civil or criminal
election law offenses. The bill will also make chief
petitioners or petition gathering firms liable in cases
where they should have known that a circulator broke the
law.
COMMENTS
1. According to the author , AB 651 requires professional
petition firms to register with the Secretary of State
(SOS) and pay a registration fee established by the
SOS. The bill also allows the SOS to use the fees
collected to maintain an online directory of
professional firms.
The initiative process was designed to allow average
citizens to participate in direct democracy through
grassroots efforts. Ironically, the initiative process
is now heavily influenced by special interest groups.
In fact, the National Conference of State Legislators
notes that the cost of qualifying an initiative for the
ballot in California has risen to more than $1 million.
The consequence is that a system that was once designed
as a grassroots tool for average voters has now become
a tool for special interest groups to avoid the
legislative process.
California lacks a mechanism for providing oversight of
professional petition gathering firms. We are
currently unable to verify whether paid signature
gatherers are provided with information on the laws
that regulate petition gathering. This bill will help
ensure that paid petition gatherers are informed of
California law. This may result in fewer cases of
election fraud by paid petition gatherers. According
to the Secretary of State's Office, there have been 32
convictions on petition fraud since 1994. According to
a report issued by the Center for Governmental Studies,
there are no known cases in the state of volunteer
signature gatherers submitting fraudulent signatures.
AB 651 will help ensure an open and transparent ballot
initiative process by making information about
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professional petition firms available on the Secretary
of State's Website directory. AB 651 will help educate
the public and will not inherently hinder the ability
of organizations to qualify ballot initiatives.
2. Contingency Contracts . A 2008 report by the Center
for Governmental Studies indicates that some for-profit
signature gathering firms are willing to guarantee
ballot qualification of any initiative for a price. To
the extent that initiative proponents enter into a
contract with a signature gathering firm where payment
is contingent upon the measure qualifying for the
ballot, the signature gathering firm will have a
significant financial incentive to ensure that the
measure qualifies for the ballot. In turn, this could
create a financial incentive to commit fraud - to
mislead voters about the contents of an initiative in
order to secure signatures on the petition.
3. Related and Prior Legislation . This bill is similar
to portions of AB 6 and AB 1068 (Saldana) of 2009, both
of which were vetoed. In his veto messages, the
Governor stated, in part:
Requiring organizations that pay individuals to collect
signatures to register with the Secretary of State and
pay a yet-to-be-determine fee will reduce the ability
of many organizations to qualify a measure for the
ballot. Under the provisions of this bill a
"professional firm" would include grassroots
organizations that pay signature gatherers in an effort
to meet the deadline to qualify a measure.
The people of California often exercise their important
role in government oversight through the initiative,
referendum and recall process. I cannot support a
measure that places an undue burden on reform-minded
Californians.
This bill prohibits signature gathering contracts from
being contingent upon a measure qualifying for the
ballot. The purported goal of this measure is to
discourage fraudulent signature gathering practices.
However, this type of contract does not have a direct
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correlation to fraudulent activities by signature
gatherers.
While I appreciate the proponents' concerns with how the
initiative process is sometimes used, this bill targets
companies that use a business strategy based on their
guarantee of success. I cannot support limiting how
proponents of a measure negotiate a contract for
gathering signatures.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 5-2
Assembly Appropriations Committee: 12-3
Assembly Floor: 50-24
POSITIONS
Sponsor: Author
Support: San Diego and Imperial Counties Labor Council
Secretary of State
Oppose: Capitol Resource Family Impact
Howard Jarvis Taxpayers Association
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