BILL ANALYSIS                                                                                                                                                                                                    Ó






                         SENATE COMMITTEE ON ELECTIONS 
                         AND CONSTITUTIONAL AMENDMENTS
                           Senator Lou Correa, Chair


          BILL NO:   SB 168                             HEARING DATE: 
          3/15/11
          AUTHOR:    CORBETT                            ANALYSIS BY:  
             Darren Chesin
          AMENDED:   AS INTRODUCED 
          FISCAL:    YES
          
                                     SUBJECT
           
          Petitions: compensation for signatures

                                   DESCRIPTION  
          
           Existing law  provides that a voter or a person who is 
          qualified to register to vote in this state may circulate 
          an initiative, referendum petition or recall petition as 
          specified.

           Existing law  does not prohibit a person from paying or 
          receiving money for the circulation of petitions for 
          signatures nor does it prohibit paying or receiving payment 
          based on the number of signatures gathered.

           Existing law  requires that state or local initiative 
          petitions must contain the following notice in 12-point 
          type:

                             "NOTICE TO THE PUBLIC

              THIS PETITION MAY BE CIRCULATED BY A PAID SIGNATURE
             GATHERER OR A VOLUNTEER.   YOU HAVE THE RIGHT TO ASK."


           This bill  makes 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.  Specifically, 
          this bill:   

                 Provides that a person or organization who pays a 
               person based on the number of signatures obtained on a 









               state or local initiative, referendum, or recall 
               petition shall be punished by a fine not to exceed 
               $25,000, or by imprisonment in a county jail not to 
               exceed one year, or by both that fine and 
               imprisonment.

                 Provides that a person who is paid based on the 
               number of signatures obtained on a state or local 
               initiative, referendum, or recall petition shall be 
               punished by a fine not to exceed $1,000, or by 
               imprisonment in a county jail not to exceed six 
               months, or by both that fine and imprisonment.

                 States that this bill does not prohibit the payment 
               for signature gathering not based, either directly or 
               indirectly, on the number of signatures obtained on a 
               state or local initiative, referendum, or recall 
               petition.

                                    BACKGROUND  
          
           Bounty Hunters  .  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.
                               
           The individuals who are paid to collect signatures on 
          initiative, referendum, or recall petitions are commonly 
          referred to as "bounty hunters."  According to the 
          Secretary of State's Election Fraud Investigation Unit 
          (EFIU) between 1994 and 2010 the EFIU opened 240 cases for 
          falsifying petitions resulting in 33 convictions.

           Other States  .  According to the National Conference of 
          State Legislatures (NCSL), it is common for initiative 
          sponsors to pay circulators on a per-signature basis to 
          gather petition signatures.  Payments typically range from 
          $1 to $3 per signature, and occasionally are as high as $10 
          per signature.  Critics argue that this encourages fraud -- 
          since a circulator who collects more signatures will earn 
          more money, circulators who are paid per signature are more 
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          likely to commit acts of fraud such as forging signatures 
          or misrepresenting the content of the petition in order to 
          encourage people to sign.  

          In three states (North Dakota, Oregon and Wyoming), 
          initiative sponsors are banned from paying petition 
          circulators per signature.  Instead, they may pay a flat 
          fee or an hourly wage.  These laws have been challenged in 
          the courts with mixed results.  North Dakota and Oregon's 
          provisions have been upheld by the U.S. 9th and 8th Circuit 
          Courts, respectively.  However, similar provisions in 
          Idaho, Maine, Mississippi and Washington were held 
          unconstitutional by federal district courts.  
                     
          More on Relevant Jurisprudence  .  In 1988, the United States 
          Supreme Court ruled that a Colorado prohibition against the 
          use of paid circulators for initiative petitions violated 
          the First Amendment's guarantee of free speech.  Writing 
          for a unanimous court, Justice Stevens noted that "Ýt]he 
          State's interest in protecting the integrity of the 
          initiative process does not justify the prohibition because 
          the State has failed to demonstrate that it is necessary to 
          burden appellees' ability to communicate their message in 
          order to meet its concerns."   Meyer  v.  Grant  (1988), 486 
          U.S. 414.  The  Meyer  court, however, did not address the 
          issue of whether a state may regulate the  manner  in which 
          circulators are paid.

          In 1999, the United States Supreme Court examined another 
          Colorado law that provided a number of other restrictions 
          on the signature collection process for ballot initiatives. 
           In that case the court ruled that there must be a 
          compelling state interest to justify any restrictions on 
          initiative petition circulation.   Buckley  v.  American 
          Constitutional Law Foundation  (1999), 525 U.S. 182.

          In February 2001, the U.S. Eighth Circuit Court of Appeals 
          ruled that a North Dakota law prohibiting payment for 
          signature collection on a per-signature basis was 
          consistent with the United States Constitution and with the 
          Supreme Court's rulings in  Buckley  and  Meyer  .  In reaching 
          this decision, the court noted that the state "produced 
          sufficient evidence that the regulation is necessary to 
          insure the integrity of the initiative process," and also 
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          noted that no evidence was presented "that payment by the 
          hour, rather than on commission, would in any way burden 
          Ýthe] ability to collect signatures."   Initiative & 
          Referendum Institute  v.  Jaeger  (2001), 241 F.3d 614.

          In February 2006, the U.S. Ninth Circuit Court of Appeals 
          ruled that an Oregon law that prohibited payment to 
          electoral petition signature gatherers on a per-signature 
          basis did not impose a severe burden under the First 
          Amendment, and therefore did not unconstitutionally burden 
          core political speech.  The court found that Oregon had an 
          "important regulatory interest in preventing fraud and its 
          appearances in its electoral processes," and that 
          prohibiting the payment of signature gatherers on a 
          per-signature basis was reasonably related to that 
          interest.   Prete  v.  Bradbury  (2006), No. 04-35285.
                     

                                     COMMENTS  
          
           1.According to the author  , some signature gathering firms 
            compensate circulators based on the number of signatures 
            they collect.  Some circulators reach the deadline to 
            qualify initiatives by illegally misinforming voters and 
            forging names. Circulators forged signatures onto their 
            petitions of names they chose from a phonebook in several 
            states.  Others have inserted carbon paper and a second 
            petition beneath the original one, without the persons' 
            knowledge, to get their signature on another petition.  

           2.Prior Legislation  .  SB 34 (Corbett) of 2009, which was 
            identical to this bill, was vetoed by Governor 
            Schwarzenegger.  In his veto message, the Governor 
            stated, in part:

          "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, 
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            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 1047 (Bowen) and AB 2946 (Leno), both from the 2005-06 
            session, contained provisions similar to this bill that 
            prohibit payment on per-signature basis for individuals 
            circulating petitions.  SB 1047 was eventually dropped by 
            the author while AB 2946 was vetoed.  
                                         

                                   POSITIONS  

          Sponsor: Author

           Support: City of Murrieta
                    Secretary of State

           Oppose:  None received






















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