BILL ANALYSIS Ó
SB 168
Page 1
SENATE THIRD READING
SB 168 (Corbett)
As Introduced February 3, 2011
Majority vote
SENATE VOTE :23-15
ELECTIONS 5-2 APPROPRIATIONS 10-5
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|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 |
| | | | |
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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
SB 168
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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