BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 168
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          SENATE THIRD READING
          SB 168 (Corbett)
          As Introduced  February 3, 2011
          Majority vote 

           SENATE VOTE  :23-15  
           
           ELECTIONS           5-2         APPROPRIATIONS      10-5        
           
           ----------------------------------------------------------------- 
          |Ayes:|Fong, Bonilla, Hall,      |Ayes:|Fuentes, Bradford,        |
          |     |Mendoza, Swanson          |     |Charles Calderon, Campos, |
          |     |                          |     |Gatto, Hall, Hill, Lara,  |
          |     |                          |     |Mitchell, Solorio         |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Logue, Valadao            |Nays:|Harkey, Donnelly,         |
          |     |                          |     |Nielsen, Norby, Wagner    |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           SUMMARY  :  Prohibits a person from paying another person or being 
          paid based on the number of signatures obtained on an 
          initiative, referendum, or recall petition.  Specifically,  this 
          bill  :   

          1)Makes it unlawful for a person to pay or to receive money or 
            any other thing of value based on the number of signatures 
            obtained on a state or local initiative, referendum, or recall 
            petition.

          2)Provides that a violation of this bill is a misdemeanor 
            subject to the following penalties:

             a)   For a person or organization that pays someone based on 
               the number of signatures collected, a fine of up to $25,000 
               and/or imprisonment in a county jail for up to one year; 
               and, 

             b)   For a person paid based on the number of signatures 
               collected, a fine of up to $1,000 and/or imprisonment in a 
               county jail for up to six months.

          3)Provides that nothing in this bill prohibits the payment for 
            signature gathering that is not based, either directly or 








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            indirectly, on the number of signatures collected on a 
            petition.

           FISCAL EFFECT  :  According to the Assembly Appropriations 
          Committee, unknown, likely minor non-reimbursable costs to 
          cities and counties for prosecution and incarceration, offset to 
          some extent by fine revenues.

           COMMENTS  :  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.  
          Others have forged signatures onto their petitions by copying 
          names they chose from a phonebook.  Lastly, some have inserted 
          carbon paper and a second petition behind the original one in 
          order to collect signatures."

          In 1999, the United States Supreme Court examined a Colorado law 
          that imposed a number of 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.

          Although the United States Supreme Court has not ruled on the 
          constitutionality of prohibiting payment for signature 
          collection on a per-signature basis, a number of federal courts 
          have considered challenges to such laws, with the courts 
          reaching different conclusions.  Federal appellate courts in the 
          Second, Eighth, and Ninth Circuits upheld laws that prohibited 
          payments for signature collection on election petitions on a 
          per-signature basis, while the Sixth Circuit Court of Appeals 
          struck down a similar law in Ohio.  Additionally, a number of 
          federal district courts have struck down bans on per-signature 
          payments in other states.  In light of the differing opinions 
          reached by various federal courts on the constitutionality of 
          laws that prohibit payments on a per-signature basis for 
          signature gathering on petitions, it is unclear whether a court 
          challenge to this bill, if enacted, would be successful.

          According to the Secretary of State's Election Fraud 
          Investigation Unit (EFIU), between 1994 and 2010, the EFIU 
          opened 240 cases for falsifying petitions, of which 46 were sent 








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          to district attorneys for prosecution, resulting in 33 
          convictions.  Since the EFIU was created in 1994, a larger 
          number of convictions have been obtained for falsified petitions 
          than for any other election crime except fraudulent voter 
          registration.

          This bill prohibits the payment of individuals on a 
          per-signature basis for collecting signatures on petitions.  
          Typically, in California, individuals who are paid to circulate 
          petitions or register voters on a per-signature or per-piece 
          basis are independent contractors.  However, to the extent that 
          this bill forces individuals who are paid to circulate petitions 
          or register voters to be paid an hourly wage, this bill could 
          also result in these individuals being considered employees 
          under California law.  As such, the individual, corporation, or 
          group paying individuals to circulate petitions may be required 
          to pay minimum wage, provide workers' compensation insurance and 
          unemployment insurance for its employees, and maintain a payroll 
          system.  This may result in higher costs to groups that pay 
          individuals to circulate petitions.  In addition, prohibiting 
          payment of individuals on a per-signature basis could increase 
          costs because it may become more difficult to measure the work 
          product of petition circulators.  Potential increased costs may 
          be partially offset if, by reducing the incentive to submit 
          fraudulently-obtained signatures, this legislation results in 
          paid circulators submitting fewer such signatures.

          Supporters of this bill contend that paying signature gatherers 
          on a per-signature basis encourages fraud, because a circulator 
          who collects more signatures will earn more, and is more likely 
          to forge signatures or misrepresent the content of a petition in 
          order to encourage people to sign.  Opponents of this bill 
          contend that outlawing payment for signature collection on a per 
          signature basis will "make it prohibitively expensive to do an 
          initiative or a recall and next to impossible to do a 
          referendum," and argue that there is little evidence that 
          per-signature payment methods are more prone to fraud than other 
          methods.

          This bill is identical to SB 34 (Corbett) of 2009, which was 
          vetoed.  In his veto message, Governor Schwarzenegger expressed 
          concern that prohibiting per-signature payments could "make it 
          more difficult for grassroots organizations to gather the 
          necessary signatures and qualify measures for the ballot."








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          Please see the policy committee analysis for a full discussion 
          of this bill.

           Analysis Prepared by  :    Ethan Jones / E. & R. / (916) 319-2094 
          FN: 0001512