BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 1 4 3 AB 1436 (Feuer) 6 As Amended June 18, 2012 Hearing date: July 3, 2012 Elections Code MK:dl VOTER REGISTRATION HISTORY Source: Author Prior Legislation: None Support: California Labor Federation; Santa Clara County Board of Supervisors; City of Los Angeles; American Association of University Women Opposition:None Known Assembly Floor Vote: Ayes 47 - Noes 26 KEY ISSUE SHOULD THE LAW ALLOW AN ELIGIBLE PERSON TO REGISTER TO VOTE AT THE OFFICE OF THE COUNTY ELECTIONS OFFICIAL AT ANY TIME INCLUDING ON ELECTION DAY? PURPOSE (More) AB 1436 (Feuer) PageB The purpose of this bill is to allow an eligible person to register to vote and vote at the office of the county elections official at any time, including on election day, if certain requirements are met. Existing law provides that a person entitled to register to vote shall be a United States citizen, a resident of California, not in prison or on parole for the conviction of a felony, and at least 18 years of age at the time of the next election. (Elections Code § 2101) Existing law sets forth the requirements for an affidavit of registration. (Elections Code § 2102) Existing law provides that county officials shall accept an affidavit of registration executed as part of a voter registration card in the forthcoming election if the affidavit is executed on or before the 15th day prior to the election. (Elections Code§ 2107) This bill defines "conditional voter registration" as a properly executed affidavit of registration which is delivered by the registrant to the county elections official during the 14 days immediately preceding an election or on election day and which may be deemed effective after the elections official processes the affidavit, determines the registrant's eligibility to register, and validates the registrant's information. This bill permits an elector who is otherwise qualified to register to vote, in addition to existing methods of voter registration, to complete a conditional voter registration and cast a provisional ballot during the 14 days immediately preceding an election or on election day. This bill provides that a conditional voter registration shall be deemed effective if the county elections official is able to determine before or during the canvass period for the election that the registrant is eligible to register to vote and that the information provided by the registrant on the registration affidavit matches information contained in a database maintained (More) AB 1436 (Feuer) PageC by the California Department of Motor Vehicles (DMV), or the federal Social Security Administration. This bill provides that if the information provided by the registrant on the registration affidavit cannot be verified by the databases described above, but the registrant is otherwise eligible to vote, the registrant shall be issued a unique identification number in accordance with existing law, and the conditional voter registration shall be deemed effective. This bill provides that conditional voter registration and provisional voting shall be available at all permanent offices of the county elections official. This bill requires an elections official to notify registrants that a conditional voter registration will be effective only if the registrant is determined to be eligible to register to vote for the election and the information is verified as specified by this bill. This bill requires an elections official to conduct the receipt and handling of each conditional voter registration and offer and receive a corresponding provisional ballot in a manner that protects the secrecy of the ballot and allows the elections official to process the registration, determine the registrant's eligibility to register, and validate the registrant's information before counting or rejecting the corresponding provisional ballot. This bill requires an elections official, after receiving a conditional voter registration, to process the registration, determine the registrant's eligibility to register and attempt to validate the information. This bill requires an elections official, if a conditional registration is deemed effective, to include the corresponding provisional ballot in the official canvass. (More) AB 1436 (Feuer) PageD This bill provides that the county elections official may offer conditional voter registration and provisional voting on election day at satellite offices of the county elections office in accordance with procedures set forth in existing law. This bill requires an elections official, if it appears that a registrant may have committed fraud, to notify in writing both the district attorney and the SOS. Existing law provides for voting by provisional ballot but provides that provisional ballots shall not be included in the semiofficial or official canvass unless the election official establishes prior to the completion of the canvass that the claimant has a right to vote or by order of a superior court in the county. (Elections Code § 14310) This bill provides further that the provisional ballot shall be included if it was cast and included in the canvass pursuant to the provision created by this bill. Existing law provides that every person is guilty of a wobbler punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail not exceeding one year, who: Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election. Being entitled to vote at an election, votes more than once, attempts to vote more than once, or knowingly hands in two or more ballots folded together at that election. Impersonates or attempts to impersonate a voter at an election. Existing law provides upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed. (More) AB 1436 (Feuer) PageE This bill would increase the felony fine to $25,000. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA") In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold legislative proposals which could further aggravate prison overcrowding through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/Overcrowding Crisis Aggravation"), the Committee has held measures which create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the application of a felony in a manner which could exacerbate the prison overcrowding crisis by expanding the availability or length of prison terms (such as extending the statute of limitations for felonies or constricting statutory parole standards). In addition, proposed expansions to the classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment) which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to ROCA because an offender's criminal record could make the offender ineligible for jail and therefore subject to state prison. Under these principles, ROCA has been applied as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress towards reducing prison overcrowding by passing legislation which could increase the prison population. ROCA will continue until prison overcrowding is resolved. For the last several years, severe overcrowding in California's (More) AB 1436 (Feuer) PageF prisons has been the focus of evolving and expensive litigation. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances. Design capacity is the number of inmates a prison can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places not designed for housing. Current design capacity in CDCR's 33 institutions is 79,650. On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than 11,000 inmates over the last six months, a reduction largely accomplished by the passage of Assembly Bill 109. Under the prisoner-reduction order, the inmate population in California's 33 prisons must be no more than the following: 167 percent of design capacity by December 27, 2011 (133,016 inmates); 155 percent by June 27, 2012; 147 percent by December 27, 2012; and (More) AB 1436 (Feuer) PageG 137.5 percent by June 27, 2013. This bill does aggravate the prison overcrowding crisis described above under ROCA. COMMENTS 1. Need for This Bill According to the author: (More) Citizen participation in elections is the bedrock of our representative democracy. Yet, in California, voter participation has fallen to troubling levels. In the November 2010 general election just 44.1% of eligible voters cast a vote. Fortunately there is more that we can do to promote increased participation, thus ensuring that election results reflect the will of the people to the greatest extent possible. Currently, individuals who are eligible to vote must submit a voter affidavit at least 15 days prior to an election. Unfortunately, the registration deadline hinders voter participation. This is illustrated by the ten states that allow some form of same-day registration and voting. All but one have higher voter participation rates than California-where only 44.1% of eligible voters participated in the 2010 general election. In comparison, Iowa, Wisconsin and Minnesota had respective rates of 50.0%, 52.1%, and 55.4% in the 2010 general election. Research also shows that same-day registration and voting lead to increased participation. North Carolina implemented same-day voter registration in 2007 and saw an 8% increase in voter turnout during the 2008 presidential election compared to the 2004 presidential election. AB 1436 addresses California's low voter participation rate through the creation of a conditional voter registration process, which would provide same-day registration and voting. Beginning 14 days prior to an election and including Election Day, a county elections office headquarters would offer conditional voter registration. This should lead to greater voter participation rates, which will provide election results that more fully reflect the will of the people. Aside from benefitting first-time voters, this bill will also benefit those who have outdated registration. California counties vary greatly in geographic expanse (More) AB 1436 (Feuer) PageI and population. This can have the effect of limiting access to a county elections office headquarters. To increase the accessibility of same-day registration and voting, AB 1436 authorizes counties to offer same-day registration and voting at other sites in addition to the central headquarters. 2. Registration up Until the Day of Voting Under existing law a person may only register to vote up to and including 15 days before the election. This bill creates a provision that will allow a person to register to vote up until and including election day. The bill sets up procedures for accepting registration and provisional ballots under these circumstances. 3. Expansion of a Felony Existing law provides that a person who commits voter fraud is guilty of a wobbler. This bill increases the felony fine from $10,000 (approximately $38,000 with penalty assessments) to $25,000 (approximately $95,000 with penalty assessments).<1> By expanding when a person can register to vote before an election and creating a new type of "conditional voter registration" that may take place within 14 days of the election, this bill expands the existing wobbler and therefore is subject to the ROCA policy of this Committee. The author may wish to make the violation of this provision a misdemeanor, and then there would be no ROCA issue. 4. Elections and Constitutional Amendments --------------------------- <1> Until the budget year 2002-2003, there was 170% in penalty assessments applied to every fine, the current penalty assessments are approximately 280%. (See Penal Code § 1464; Penal Code § 1465.7; Penal Code § 1465.8 Government Code § 70372; Government Code § 7600.5 Government Code § 76000 et seq; Government Code § 76104.6) AB 1436 (Feuer) PageJ This bill passed Senate Elections and Constitutional Amendments on June 19, 2012 with a vote of 3-2. ***************