BILL ANALYSIS �
AB 1038
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Date of Hearing: April 9, 2013
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1038 (Pan) - As Introduced: February 22, 2013
SUBJECT : Voter registration: paid registration activities.
SUMMARY : Prohibits a person from offering or providing
financial compensation or other valuable consideration to
another person, either directly or indirectly, to assist another
person to register to vote under a certain political party by
receiving the completed affidavit of registration. Provides any
person who violates the provisions of this bill is guilty of a
misdemeanor.
EXISTING LAW :
1)Requires any person who accepts money or other valuable
consideration in return for assisting with voter registration
to sign and affix on the voter registration form his or her
full name, telephone number, address, and the name and phone
number of the person, company, or organization, if any, that
agrees to pay money or valuable consideration for the
completed affidavit of registration.
2)Requires any person, company, or other organization that
agrees to pay money or other valuable consideration to a
person for assisting with voter registration to maintain
specific records.
3)Establishes penalties for fraudulent activity related to
signature gathering and voter registration.
FISCAL EFFECT : Unknown. State-mandated local program;
contains a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
Recently reports of organized voter registration fraud
taking place in Sacramento County have come to light. Since
then we have found that the problem lies with "Bounty
Hunters" companies and organizations that pay per-affidavit
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for switched voter registrations cards. By changing the law
so companies can no longer pay based on voter party
preference we eliminate an incentive to forge affidavits
while protecting the integrity of voters. This will reduce
the volume of voter cards that are invalid due to fraud
thereby reducing the amount of staff time the county
registrars need to spend validating them. Decreasing the
backlog and strain on the county registrars can save
significant resources for county governments that are
struggling in our difficult budget climate.
Jill LaVine, Sacramento County's Registrar of Voters,
reported that her office found "numerous" examples of
voters having their political party affiliation switched to
"Republican" against their wishes. This and many similar
reports have taken place all over California. The
Sacramento County Registrar was also inundated by phone
calls the day of the June election, with more victims of
voter registration fraud that weren't caught until they
actually reached the ballot box. People who went to the
polls and received ballots for parties they never signed up
for felt that their rights as a voter had been violated.
Voter Registration Fraud is a real crime and the victims of
these crimes need to have their voices heard.
2)Voter Registration Fraud : While some voter registration
drives pay employees on an hourly or salaried basis, other
voter registration drives pay workers a specified amount of
money for each completed voter registration card. In some
cases, voter registration drives that pay workers on a
per-registration basis only pay workers for voters who
register with a specific political party, or pay the workers a
larger amount of money for voters who register with a specific
political party. While these per-registration payments may
create incentives to register voters with a particular
political party, they also may create financial incentives for
the individuals who are registering voters to commit fraud.
In each of the last four election cycles, complaints have been
filed by voters who said they were misled into changing their
party affiliations. According to media reports of these
complaints, the voter registration workers who were accused of
misleading these voters were paid as much as $15 for each new
voter that the worker registered with a particular political
party.
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In 2006, complaints were reported in Orange, Riverside, and San
Bernardino Counties. According to the Orange County Register,
11 individuals were eventually convicted of falsifying voter
registrations and other charges in connection with the
complaints in Orange County, and eight of those 11 served jail
time. In 2008, press reports focused on similar complaints in
Los Angeles, Riverside, San Bernardino, and Ventura Counties.
In 2010, complaints were filed in Orange and Sacramento
Counties. In 2012, complaints were reported once again in
Sacramento County. In every instance, media reports of the
complaints indicated that the firms that were conducting the
voter registration drives or the individuals who were
registering voters as part of those drives were being paid on
a per-registration basis.
In all, according to the Secretary of State's Election Fraud
Investigation Unit (EFIU), between 1994 and 2010, the EFIU
opened 960 cases for fraudulent voter registration or
fraudulently altering party affiliation on voter registration
cards. Out of these, 99 were referred to district attorneys
for prosecution, resulting in 64 convictions. Since the EFIU
was created in 1994, it has opened more cases, and a larger
number of convictions have been obtained, for voter
registration fraud than for any other election crime.
3)Practical Application of This Bill : The provisions of this
bill prohibit a person from paying another person, either
directly or indirectly, to register to vote under a certain
political party by receiving the completed affidavit of
registration. The intention of this bill is to prohibit
companies or individuals from being offered or receiving
financial compensation for registering voters with particular
political parties. For example, this bill would prohibit a
person from being paid five dollars to register a voter as a
Democrat and ten dollars to register a voter as a Republican.
Additionally, this bill prohibits indirect payments,
consequently, this bill would prohibit a person from receiving
a bonus, whether financial or not, for registering only
Democrats.
4)Does This Solve the Problem ? Last session two bills, SB 205
(Correa) and AB 145 (Pan), would have prohibited a person from
paying or receiving payment for registering voters on a
per-affidavit basis. Both bills were vetoed by Governor
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Brown. While the provisions of this bill seem substantially
similar to AB 145 and SB 205, they are in fact slightly
different. This bill takes a more narrow approach to
eliminate voter registration fraud and only prohibits one
aspect - prohibiting a person from being paid on a
per-affidavit basis to assist voters to register with a
specific political party. The author argues that eliminating
the incentive to forge affidavits for specific political
parties will consequently decrease the likelihood to commit
these acts of fraud. The author's goal to decrease fraud is
laudable, however because this bill narrowly chips away at the
incentive that critics argue encourage fraud, it may not have
as much of an impact as an outright ban. Conversely, while
this bill may not resolve the matter, any effort to help
discourage and potentially decrease these fraudulent
activities could help protect election integrity and increase
voters' confidence in the democratic process.
5)Other States : At least 11 states (Colorado, Florida, Georgia,
Iowa, Kentucky, Missouri, Nevada, Pennsylvania, South Dakota,
Washington, and Wisconsin) have laws prohibiting payments for
registering voters if those payments are based on the number
of registrations obtained. Ohio similarly had a law that
prohibited payments for registering voters if those payments
were based on anything other than time worked. Ohio's law
also prohibited payments for collecting signatures on election
petitions if the payments were based on anything other than
time worked. The Ohio law was struck down by the Sixth
Circuit Court of Appeals in Citizens for Tax Reform et al. v.
Deters et al. (2008), 518 F.3d 375. However, while the Court
struck down the entire Ohio law, including the provisions
regarding payments for registering voters, the Court's
decision focused on the portion of the law governing payments
for collecting signatures on petitions, and did not include
substantive discussion about the restrictions on payments for
voter registration.
6)Arguments in Opposition : In opposition, the American Civil
Liberties Union of California writes:
The ACLU believes this legislation raises constitutional
concerns. By making it a crime to pay someone to register
voters for a particular political party, the bill may
violate the First Amendment and parallel state
constitutional protections for speech and association.
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Individuals have a constitutional right to support the
political party of their choice, and to do so by paying
others to encourage voters to register with a particular
party. Cf. Meyer v. Grant, 486 U.S. 414 (1988)
(circulation of initiative petition involved political
speech and prohibition against paying circulators to
collect signatures supporting petition violated First
Amendment). This bill would make it a crime to pay someone
to register voters with a particular party, but it would
continue to be lawful to pay someone to register voters in
general. In so doing, the bill may be unconstitutionally
single out speech in favor of a particular political party.
7)Previous Legislation : AB 145 (Pan) of 2012, would have
prohibited a person from paying another person or receiving
payment for registering voters if that payment is on a
per-affidavit basis. Governor Brown vetoed the bill stating,
that "[c]urrent California law provides criminal penalties for
voter registration fraud. Without more convincing evidence
that per-card incentives hurt the democratic process, I am not
prepared to ban them."
SB 205 (Correa) of 2011, which is substantially similar to AB
145, would have prohibited a person from paying another person
or receiving payment for registering voters if that payment is
on a per-affidavit basis. Governor Brown vetoed this bill and
in his veto message wrote, "I understand the author's desire
to stop fraudulent voter registration. But I don't believe
this bill - which makes it a crime to pay people for
registering voters based on the number of registrations they
secure - will help. Voting is at the heart of our democracy.
Efforts to register voters should be encouraged, not
criminalized."
AB 2946 (Leno) of 2006, would have prohibited the payment of
an individual to register voters if that payment was on a
per-registration basis, among other provisions. AB 2946 was
vetoed by Governor Schwarzenegger, though his veto message
focused on other parts of that bill, and did not address the
provisions of the bill that would have prohibited
per-registration payments for registering voters.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 1038
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None on file.
Opposition
American Civil Liberties Union of California
Peace & Freedom Party of California
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094