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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