BILL ANALYSIS �
AB 938
Page 1
Date of Hearing: May 7, 2013
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 938 (Weber) - As Amended: April 22, 2013
SUBJECT : Voting: felons: parolees.
SUMMARY : Makes significant changes to voter eligibility.
Specifically, this bill :
1)Provides that a person loses his or her eligibility to
register to vote as the result of being in prison for the
conviction of a felony only if the prison where the person is
housed is a state or federal prison.
2)Provides that a person loses his or her eligibility to
register to vote as the result of being on parole for the
conviction of a felony only if the person is on state or
federal parole, or federal supervised release. Provides that
"state parole" does not include a person on postrelease
community supervision or on mandatory supervision pursuant to
existing law.
3)Requires the clerk of the superior court in each county, when
furnishing the elections official with a list of persons who
have been convicted of felonies, to include only persons who
have been convicted of a felony and sentenced to state prison,
instead of including all persons who were convicted of
felonies, whether they were sentenced to prison or not.
Requires the clerk of the superior court of each county to
include the last four digits of the social security number
(SSN) of each person, if available, along with the other
information as specified, on the list furnished to the county
elections officials. Requires a county elections official to
cancel the affidavit of registration of each person who is
currently imprisoned or on state parole for the conviction of
a felony whose name, address, date of birth, and, if
available, the last four digits of his or her SSN, is the same
as reported on the court clerk's statement, instead of
cancelling the affidavits of registrations for all persons who
were convicted of felonies.
4)Makes other conforming changes.
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EXISTING LAW :
1)Permits a person who is 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, to register to vote.
2)Requires the clerk of the superior court in each county to
furnish the chief elections official of the county, not less
frequently than the first day of April and the first day of
September of each year, with a statement showing the names,
addresses, and dates of birth of all persons who have been
convicted of felonies since the clerk's last report.
3)Requires the county elections official to cancel the
affidavits of registration of those persons who are imprisoned
or on parole for the conviction of a felony.
4)Requires the Legislature to provide for the disqualification
of electors while imprisoned or on parole for the conviction
of a felony.
FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
AB 938 clarifies that people sentenced pursuant to the
Criminal Justice Realignment Act retain their
constitutional right to vote. Under California law, a
person sentenced to county jail and/or placed on formal
probation (not pursuant to Realignment) retains the right
to vote. Yet the Secretary of State, in the absence of
guidance from the Legislature, has in the interim deemed
that a person sentenced to a term in county jail and/or
supervised by probation pursuant to Realignment is
ineligible to vote. This has resulted in substantial
confusion for California voters, courts, and county
elections officials.
Even more confusion results from the lack of clear guidance
regarding the information courts must send to elections
officials regarding the eligibility of persons with a
criminal conviction. The lack of accurate and complete
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information undermines elections officials' best efforts to
maintain the integrity of their voter files. As a result,
voter files may be over-purged (wrongfully disenfranchising
eligible voters) or under-purged (allowing those who are
ineligible to mistakenly register to vote.)
The integrity of our voting system depends on the accuracy
of our voter rolls and the protection of every eligible
person's right to vote. No eligible voter should be kept
from fulfilling their responsibility and civic duty due to
ambiguity in the law.
Moreover, voting creates a greater sense of citizenship,
participation, and ultimately a vested interest in
achieving the overall goals of the community.
"The right to vote is one of the defining elements of
citizenship in a democratic polity and participation
in democratic rituals such as elections affirms
membership in the larger community for individuals and
groups. Because of all that voting represents in this
society, voting can be viewed as a proxy for other
kinds of civil engagement associated with the
avoidance of illegal activity." (Uggen & Manza,
Voting and Subsequent Crime and Arrest: Evidence From
A Community Sample (2004) 36 Colum. Hum. Rts. L. Rev.
193, 194 (hereinafter "Uggen & Manza").
If returning offenders see themselves as productive members
of society, and are able to have input on policies
affecting the entire community, this will have a noticeable
impact on recidivism.
Uggen & Manza concluded in their study of voting rights and
recidivism that,
"Voting appears to be part of a package of pro-social
behavior that is linked to desistence from crime. . .
. To the extent that felons begin to vote and
participate as citizens in their communities, it seems
likely that many will bring their behavior into line
with the expectations of the citizen role, avoiding
further contact with the criminal justice system."
(Uggen & Manza, 36 Colum. Hum. Rts. L. Rev. at
214-215.
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Furthermore, the Brennan Center for Justice and Democracy
states,
Restoring the right to vote helps reintegrate people
with criminal records into society and, by increasing
voter participation, strengthen democracy. Civic
participation instills in the offender a feeling of
belonging in the community and a sense of
responsibility toward others. This connection to
others encourages former felons to be contributing
members of society. (Brennan Center for Justice,
Voting Rights Restoration: February 2006, available at
www.brennancenter.org/page/-/d/download_file_9846.pdf.)
In contrast, refusing the right to vote instills a sense of
exclusion and disconnectedness from the community. Denying
Realignment offenders the right to vote creates yet another
psychological impediment to reentry, and increases the
likelihood of recidivism.
2)California Disenfranchisement Laws : Under California law, any
person who is imprisoned or on parole for the conviction of a
felony is prohibited from voting and elections officials are
required to cancel the voter registrations of such
individuals. However, a person who is on probation for
conviction of a felony is permitted to vote. While it would
seem that the determination of whether an individual is
eligible to vote is fairly straightforward, there has been a
great deal of confusion about what constitutes being
"imprisoned" for the conviction of a felony.
For instance, it is not uncommon for a person who has been
convicted of a felony to be ordered to serve time in county
jail as a condition of probation. To the extent that a person
is serving time in county jail as a condition of probation ,
that person is not considered to be "imprisoned" for the
conviction of a felony under California law, and thus, that
person remains eligible to vote, even while he or she is in
the county jail.
On the other hand, due to a variety of reasons, a person who has
been convicted of a felony and sentenced to serve time in
state prison may nonetheless serve part or all of his or her
AB 938
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sentence in a county or city jail due to a contractual
agreement with the state. In such a circumstance, that person
is not eligible to vote, and the elections official should
cancel that person's registration, since he or she is not on
probation - but rather has been convicted of a felony and was
sentenced to state prison. The fact that the individual is
serving that prison time in a local jail under a contractual
arrangement is not relevant in determining whether that person
has the ability to register to vote or to vote.
These interpretations of California's disenfranchisement laws
were affirmed by the Court of Appeal for the State of
California, First Appellate District, Division One, in League
of Women Voters of California, v. McPherson (2006), 145
Cal.App.4th 1469. In that case, the court noted that "where a
probationer is ordered to serve time in a local facility
because either imposition or execution of sentence has been
suspended, he or she has not been imprisoned for the
conviction of a felony, but has been confined as a condition
of probation."
3)Criminal Justice Realignment & Inmate Voting Eligibility : In
2011, California passed a series of bills known as the
Criminal Justice Realignment Act (CJRA). Although prior to
realignment, some felony sentences were served in county or
city jails, most felony sentences were served in state prison.
Under realignment, certain lower-level felony offenders, who
would have been sentenced to state prison, are now sentenced
to serve their time in custody in county jail. Additionally,
after release from custody and depending on the offense and
sentence, realignment changed the state's parole system and
created the option for an inmate to be released to a term of
"post-release community supervision" (under the control of the
local probation department) or mandatory supervision. Thus,
the enactment of the CJRA has caused an even greater deal of
confusion and raised questions about the eligibility to vote
for convicted felons sentenced to these new programs.
According to court documents, the Secretary of State's (SOS)
office, at the request of county elections officials, issued a
memorandum on December 5, 2011 which analyzed CJRA and its
effect on voter eligibility. Consequently, the SOS's office
concluded that realignment "does not change the voting status
of offenders convicted of CJRA-defined low-level felonies,
either because they serve their felony sentences in county
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jail instead of state prison or because the mandatory
supervision that is a condition of their release from prison
is labeled something other than 'parole.' Offenders convicted
of CJRA-defined low-level felonies continue to be disqualified
from voting while serving a felony sentence in county jail,
while at the discretion of the court serving a concluding
portion of that term on county-supervised probation, or while
they remain under mandatory 'post release community
supervision' after release from state prison."
Voting rights groups filed a lawsuit against the SOS arguing
that realigned individuals have a right to vote. In March of
2012, a lawsuit was filed in the First District Court of
Appeal to clarify that people who have been sentenced for
low-level, non-violent offenses under the CJRA are entitled to
vote in the 2012 elections and beyond ( All of Us or None et
al. v. Bowen et al. (2012) No. A134775). On May 17, 2012, the
First District Court of Appeal summarily denied the petition,
meaning that it refused to hear the case or issue an opinion.
In response, petitioners filed another lawsuit in the
California Supreme Court to review the case and decide the
case on an expedited basis ( All of Us or None v. Bowen (2012)
No. S202885). The Supreme Court, which has the discretion to
either hear the case, order the Court of Appeal to decide it,
or deny review, denied review on July 25, 2012.
4)Constitutional Issues : While the author's goal is to reduce
the confusion caused by the impact of realignment and provide
clarity with respect to the voting rights of felons,
provisions of this bill may be in conflict with the California
Constitution. Article II, Section 4 of the California
Constitution disqualifies from voting those who are
"imprisoned or on parole for the conviction of a felony." The
California Constitution which is self-executing does not need
the aid of legislation to give it effect.
This bill provides that a person is prohibited from registering
to vote if he or she is in state or federal prison or on state
or federal parole or federal supervised release , instead of
imprisoned or on parole, for the conviction of a felony. The
author contends that this bill, will clarify that people
sentenced under realignment retain their constitutional right
to vote. Moreover, the author states that due to the absence
of guidance from the Legislature, a person sentenced to county
jail and/or supervised by probation under CJRA are ineligible
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to vote.
As mentioned above, a person can be convicted and sentenced to
state prison, but serve their sentence in county jail due to a
contractual agreement between the county and the state. Thus,
the location where the person is serving their sentence is
irrelevant when determining whether that person has the
ability to register to vote or not.
Furthermore, because the California Constitution uses the term
"imprisoned," which is a broad term that could incorporate
state prison, federal prison, or county jail, it could be
argued that this bill, which narrows the scope of where a
felon could be imprisoned and disqualified from voting, may be
in conflict with the Constitution and could be susceptible to
a court challenge if it were to become law.
In addition, as mentioned above, the California Constitution
disqualifies those from voting who are "on parole for the
conviction of a felony." This bill excludes postrelease
community supervision and mandatory supervision under
realignment from the definition of what is considered to be
state parole. The term "parole" is a general rather than
specific term and is defined by Black's Law Dictionary as "the
conditional release of a prisoner from imprisonment before the
full sentence has been served." Consequently, it can be
argued that these new alternative post release supervised
scenarios under the CJRA - post-release community supervision
and mandatory supervision - are functionally equivalent to
parole. While there may be slight differences in how the
programs function for postrelease community supervision and
mandatory supervision, they essentially require post release
supervision by a governmental entity that if violated, can be
revoked. Consequently, it can be argued that regardless of
the name of the post release program in which a convicted
felon is sentenced, their eligibility status remains the same.
Thus, this bill, which excludes those that are on postrelease
community supervision or on mandatory supervision under
realignment under the definition of state parole, may not
withstand constitutional scrutiny.
5)Voter File Maintenance : The California Constitution prohibits
a person from voting if the person is imprisoned or on parole
for the conviction of a felony. In accordance with that
provision, Section 2212 of the Elections Code requires county
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elections officials to cancel the affidavits of registration
of those persons who are imprisoned or on parole for the
conviction of a felony. In order to enable the county
elections official to comply with this requirement, Section
2212 of the Elections Code also requires the clerk of the
superior court to furnish to the elections official a
statement with the names, addresses, and dates of birth of all
persons who were convicted of felonies since the court's last
report. However, if a court adheres to a literal
interpretation of this requirement, the county elections
official does not have the information necessary to determine
whether or not a voter's registration should be canceled,
because the list would include any person who was convicted of
a felony but not sentenced to prison.
Background information provided by the author's office argues
that California's disenfranchisement laws are unclear,
resulting in over-purging (wrongfully disfranchising eligible
voters) and under-purging (allowing those who are ineligible
to mistakenly register to vote) of the voter rolls. Moreover,
the integrity of elections depends on the accuracy of the
voter rolls and the protection of every eligible person's
right to vote. In order to provide more clarity, this bill
requires the court to send the elections official a list of
persons who have been convicted of felonies and sentenced to
state prison, so that the county elections officials have the
information necessary to comply with the requirement that they
cancel the registrations of those persons who are imprisoned
or on parole for the conviction of a felony.
Despite these clarifications, it can be argued that other
requirements in this bill actually make it more difficult to
cancel the registrations of those persons who are imprisoned
or on parole for the conviction of a felony. Provisions of
this bill require the elections official to cancel the
registration of each person who is currently imprisoned or on
state parole for the conviction of a felony whose name,
address, date of birth, and, if available, the last four
digits of his or her social security number (SSN) is the same
as reported on the court clerk's statement. A strict
interpretation of this requirement may make it more difficult
for an elections official to cancel a voter's registration as
the bill requires that the name, address, birth date, and , if
available, the last four digits of the voter's SSN, must match
the information provided on the clerk's report. If the name
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and birth date match the report provided by the clerk, but the
address does not match, then a strict read of the requirements
in this bill would not allow the elections official to cancel
the voter registration. Consequently, this bill may result in
under inclusive purge of the voter rolls.
6)Arguments in Support with Concerns : The California
Association of Nonprofits (CAN), which is in support of AB
938, however, has concerns regarding those individuals placed
on federal supervised release. In its letter to the
committee, CAN writes:
There is no current California statute that disqualifies
individuals under federal supervised release (FSR) from
voting. However, the Secretary of State has held for many
years that FSR is analogous to state parole and thus
supervisees are disqualified.
The most recent amendments to AB 938 would codify that
individuals placed under FSR are ineligible to vote. It
should be noted to the committee and stakeholders that this
amendment disenfranchises a class of individuals whom,
until now, have not been statutorily disenfranchised.
The similarity between state parole and FSR has been
debated. The clear distinction between that two is that:
State parolees continue to be under the
authority of the California Department of Corrections
and Rehabilitation while under supervision and any
revocation and return to custody occurs under that
authority. Parole is, in essence, a community
extension of the prison sentence.
Conversely, individuals are released from the
custody and authority of the Federal Bureau of Prisons
prior to being placed on federal supervised release.
Individuals on FSR are placed under the authority of
United States Probation. Any revocation proceedings
(or alternatively, proceedings to terminate
supervision early), do not involve the Bureau of
Prisons, but rather are handled by U.S. Probation and
the Courts. The term of supervised release is a
separate, consecutive portion of an individual's
sentence. In this regard, it is similar to California
felony probation.
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As another related point of clarification, FSR is distinct
from federal parole. While federal parole is no longer
granted, it does still exist for individuals sentenced
prior to 1984. The construct of federal parole is
analogous to state parole, as described above, and would
logically follow that individuals (while few) placed under
federal parole are ineligible to vote pursuant to current
statute.
1)Arguments in Opposition : The California District Attorneys
Association writes in opposition:
One of the key features of realignment is that felons,
regardless of where they are incarcerated or who supervises
them, are still felons. AB 938 would allow felons who are
housed in county jail, on [postrelease community
supervision], or on [mandatory supervision] to vote despite
that fact that if there were no realignment, these very
same offenders would be in state prison or on parole, and
therefore ineligible to vote. Merely changing the location
or nature of a felon's custody or supervision does not
justify allowing him or her to avoid the sanctions
attendant to a felony conviction.
2)Previous Legislation : AB 742 (Salda�a) of 2009, which was
similar to certain provisions of this bill, would have
required the clerk of the superior court in each county, when
furnishing the elections official with a list of persons who
have been convicted of felonies, to include only persons who
have been sentenced to state prison, instead of including all
persons who were convicted of felonies, whether they were
sentenced to prison or not. Governor Schwarzenegger voted
this measure, stating that "[s]uperior [c]ourt clerks
throughout the state have worked with local elections
officials to provide this information in a format that is most
appropriate for their jurisdiction. Therefore this bill is
unnecessary."
AB 1308 (Hagman) of 2009, would have prohibited a person who is
on probation for conviction of a felony from voting. AB 1308
failed passage in this committee on April 21, 2009 on a 2-5
vote, but was granted reconsideration.
REGISTERED SUPPORT / OPPOSITION :
AB 938
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Support
American Civil Liberties Union of California (co-sponsor)
City and County of San Francisco Office of the Sheriff
(co-sponsor)
Greenlining Institute (co-sponsor)
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area (co-sponsor)
League of Women Voters of California (co-sponsor)
All of Us or None
A New Way of Life Re-Entry Project
Asian Americans for Civil Rights & Equality
Asian Law Caucus
Asian Pacific American Legal Center
California Association of Clerks and Election Officials
California Association of Nonprofits
California Attorneys for Criminal Justice
California Catholic Conference of Bishops
California Common Cause
California Correctional Peace Officers Association
California Federation of Teachers
East Bay Community Law Center
Justice Not Jails
Legal Services for Prisoners with Children
Los Angeles Regional Reentry Partnership
NAACP Legal Defense & Educational Fund, Inc.
Rock the Vote
San Francisco District Attorney's Office
Project Vote
Opposition
California District Attorneys Association
California State Sheriffs' Association
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094