BILL ANALYSIS �
AB 938
Page 1
ASSEMBLY THIRD READING
AB 938 (Weber)
As Amended April 22, 2013
Majority vote
ELECTIONS 5-1
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|Ayes:|Fong, Bocanegra, Bonta, | | |
| |Hall, Weber | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Donnelly | | |
| | | | |
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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
AB 938
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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.
EXISTING LAW requires the Legislature to provide for the
disqualification of electors while imprisoned or on parole for the
conviction of a felony.
FISCAL EFFECT : None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : 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 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."
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
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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
the Criminal Justice Realignment Act (CJRA) are ineligible to vote.
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 California
Constitution and could be susceptible to a court challenge if it
were to become law.
In addition, 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.
AB 938
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Please see the policy committee analysis for a full discussion of
this bill.
Analysis Prepared by : Nichole Becker / E. & R. / (916) 319-2094
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