BILL ANALYSIS �
AB 1170
Page 1
Date of Hearing: April 23, 2013
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1170 (Donnelly) - As Amended: March 21, 2013
SUBJECT : Voters: registration cancellation.
SUMMARY : Requires a county elections official to cancel the
voter registration of a voter who fails to respond to an
alternative residency confirmation address verification mailing
in response to change of address data received, and who does not
offer to vote or vote in any election between the date of the
mailing and two federal general elections after the date of that
mailing. Specifically, this bill :
1)Modifies the alternate residency confirmation postcard notice
and provides that if a voter does not appear or offer to vote
at any election in the period between the date of the
alternate residency confirmation postcard notice and the
second federal general election after the date of the notice,
the voter's registration will be canceled and the voter will
have to reregister in order to vote.
2)Repeals the elections official's discretionary authority to
place a voter on the inactive file and instead requires a
county elections official to place a voter's name on the
inactive file, if the change-of-address information received
indicates the voter has moved to a new address in another
county, if the mailings have been returned as undeliverable,
or if the voter fails to confirm his or her address as
required by the alternate residency confirmation postcard.
3)Repeals a provision of law that prohibits an elections
official, when contracting with a consumer credit reporting
agency or its licensee to obtain chance-of-address data, from
placing the voter's name on the inactive file or cancelling
the voter's registration, if the voter does not respond to the
forwardable notice mailed, as specified, and does not
otherwise verify in a signed writing that he or she has moved
to a new residence address. Requires, instead, that an
elections official cancel the voter registration of a voter if
the voter does not respond to the forwardable notice sent, as
specified, does not otherwise verify in a signed writing that
he or she has moved to a new residency address, and does not
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offer to vote or vote at any election between the date of the
forwardable notice and two federal general elections after the
date of the forwardable notice.
EXISTING LAW :
1)Requires each county elections official to conduct a
pre-election residency confirmation of registered voters
pursuant to one of the following procedures prior to each
primary election:
a) By mailing a non-forwardable postcard to each registered
voter in the county who has not voted at an election in the
six months preceding the start of the confirmation
procedure;
b) By contracting with the USPS to obtain use of the postal
service change-of-address data such as the National Change
of Address System (NCOA);
c) By contracting with a consumer credit reporting agency
or its licensees to obtain use of change-of-address data;
or,
d) By including the return address of the elections
official's office along with the language "Address
Correction Requested" on the outside portion of the sample
ballot or sample ballot envelope mailed to voters at an
election conducted within the last six months before the
start of the confirmation process. If an elections
official uses this procedure for the pre-election residency
confirmation, it must confirm the addresses of voters who
were not eligible to vote at an election during the six
months preceding the start of the confirmation process, or
who were not mailed a sample ballot with an address
correction requested, by either mailing residency
confirmation postcards to those voters or by contracting
with the USPS to obtain change-of-address data.
2)Provides that the following actions shall be taken with
respect to information that the county elections official
receives as a result of the pre-election residency
confirmation process:
a) If the elections official does not receive any
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information that would indicate that the voter has moved,
the official takes no action with respect to that voter's
registration.
b) If NCOA data indicates that the voter has moved and left
no forwarding address, the voter's registration is placed
on the inactive list.
c) If consumer credit agency data indicates the voter has
moved, the elections official must send a forwardable
notice, which may be in the form of a postcard, to the
registered voter to allow the voter to verify or correct
his or her address information:
i) If the voter responds to the forwardable notice
mailed as specified above, and indicates that he or she
has moved to a new address within the same county, the
elections official shall update that voter's registration
with the new residence address if the voter's signature
on the returned notice matches the signature on file for
that voter.
ii) If the voter responds to the forwardable notice
mailed as specified above, and indicates that he or she
has moved to a new address in another county, the
elections official shall cancel that voter's registration
if the voter's signature on the returned notice matches
the signature on file for that voter.
iii) If the voter does not respond to the forwardable
notice mailed as specified above, and does not otherwise
verify in a signed writing that he or she has moved to a
new residence address, the elections official shall take
no action with respect to that voter's registration.
d) If a postcard or sample ballot is returned as
undeliverable and without a forwarding address, the
registration of that person is placed on the inactive list,
and the elections official must send the voter a
forwardable postcard asking the voter to confirm his or her
residence address.
i) If the voter does not reply to this forwardable
postcard, and the voter does not vote between the time of
that mailing and the second federal general election
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conducted after that mailing, the voter's registration
may be canceled.
ii) If the voter replies to the forwardable postcard,
and indicates that he or she is still residing at the
same address, the voter's registration is moved back to
the active voter list.
iii) If the voter replies to the forwardable postcard,
and indicates that he or she has moved, and is now
residing at an address elsewhere in the same county, the
voter's registration is updated to that new address and
the registration is moved back to the active voter list.
iv) If the voter replies to the forwardable postcard,
and indicates that he or she has moved, and is now
residing at an address in a different county, the voter's
registration is canceled.
e) If the postcard or sample ballot is returned with a
forwarding address for the voter, or if the NCOA
information provides a forwarding address for the voter,
the elections official takes the following actions:
i) If the forwarding address is in the same county as
the address at which the voter is currently registered to
vote, the voter's registration address is updated by the
elections official to reflect the new address provided by
the post office, and the voter is mailed a postcard
indicating that the voter's registration will be changed
unless he or she notifies the elections official within
15 days that the change-of-address was not a change of
the voter's permanent residence.
ii) If the forwarding address is not in the same county
as the address at which the voter is currently registered
to vote, the registration of that person is placed into
the inactive list, and the elections official must send
the voter a notice asking the voter to advise the
elections official whether the change-of-address is a
permanent change of residence or not, or to advise the
elections official if the change is incorrect.
(1) If the voter does not reply to this notice,
and the voter does not vote between the time of that
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notice and the second federal general election
conducted after that notice, the voter's registration
may be canceled.
(2) If the voter replies to the notice, and
indicates that he or she is still residing at the same
address, the voter's registration is moved back to the
active voter list.
(3) If the voter replies to the notice, and
confirms that he or she has moved, but to an address
that is elsewhere in the same county, the voter's
registration is updated to that new address and the
registration is moved back to the active voter list.
(4) If the voter replies to the notice, and
confirms that he or she has moved to a different
county, the voter's registration is canceled.
3)Provides that voters who are on the inactive list of voters
shall not receive election materials and are not included in
calculations to determine the number of signatures required
for qualification of candidates and measures, precinct size,
or other election administration related processes.
4)Provides that any voter who has been placed on the inactive
list of voters and who offers to vote or who notifies the
elections official of a continued residency shall be removed
from the inactive list and placed on the active voter list.
5)Permits an elections official to send an alternate residency
confirmation postcard, if a voter has not voted in an election
within the preceding four years, and his or her residence
address, name, or party affiliation has not been updated
during that time. Permits the use of this postcard to be sent
subsequent to the NCOA or sample ballot returns, but prohibits
it from being used in the residency confirmation process.
Requires the postcard be forwardable, including a postage paid
and preaddressed return form to allow the voter to verify or
correct the address information. Requires an elections
official using the alternate residency confirmation procedure
to notify all voters of the procedure in the sample ballot
pamphlet or in a separate mailing. Requires the notice to be
substantially in this form below:
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"If the person named on the postcard is not at this
address, PLEASE help keep the voter rolls current and save
taxpayer dollars by returning this postcard to your mail
carrier."
"IMPORTANT NOTICE"
"According to our records you have not voted in any
election during the past four years, which may indicate
that you no longer reside in ______ County. If you
continue to reside this county you must confirm your
residency address in order to remain on the active voter
list and receive election materials in the mail."
"If the confirmation has not been received within 15 days,
you may be required to provide proof of your residency
address in order to vote at future elections. If you no
longer live in _____ County, you must reregister at your
new residency address in order to vote in the next
election. California residents may obtain a mail
registration form by calling the county elections official
or the Secretary of State's Office."
FISCAL EFFECT : Unknown. State-mandated local program; contains
reimbursement direction.
COMMENTS :
1)Purpose of the Bill : According to the author:
In 2005 the bipartisan Commission on Federal Election
Reform, co-chaired by former President Jimmy Carter and
Secretary of State James Baker, issued a number of
suggestions to strengthen the country's electoral system,
including universal accurate voter registration lists. The
Commission specifically noted that a complete, accurate,
and current voter roll is essential to ensure that every
eligible citizen who wants to vote can do so, that
individuals who are ineligible cannot vote, and that
citizens cannot vote more than once in the same election.
The Commission further noted that incomplete or inaccurate
registration lists lie at the root of most problems
encountered in U.S. elections, and that lists containing
ineligible, duplicate, fictional, or deceased voters, are
"an invitation to fraud."
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Significantly, the Commission cited California as one state
with extensive "deadwood" on its voter registration lists,
noting that one in every three California voters was on the
inactive list in 2004, and that this state had clearly
failed to update its lists by removing the names of voters
who had died or moved away.
Unfortunately, this situation has not improved since 2004,
and in many cases current law actually prevents the removal
of the names of voters who disappeared many years ago. As
a result, the names of tens of thousands of persons who
died or moved away remain on the rolls and can easily be
used by third persons to cast fraudulent votes, thereby
disenfranchising Californians by cancelling-out their
votes. A NBC News investigation found that the names of
more than 25,000 deceased voters are still on the rolls and
that some of these deceased voters continued to vote, even
years after their death. It cited one example of a former
Hayward police officer who died in 2001, but who has still
managed to vote eight times since 2005.
AB 1170 will prevent these abuses and safeguard the
integrity of our voting system by requiring elections
officials to remove the names of voters who go missing, who
fail to respond to a forwardable residency confirmation
postcard sent by elections officials, and who then also
fail to vote in both of the next two federal general
elections. AB 1170 will thus implement the recommendations
of the Carter-Baker Commission, as well as the mandate of
the federal Motor Voter Act that California make reasonable
efforts to remove the names of ineligible voters who have
died or moved away.
Accordingly, AB 1170 will help ensure that California's
voter registration lists are complete, accurate, and
current in order to safeguard full and fair citizen
participation in our democracy, so that every eligible
citizen can vote, that ineligible persons cannot vote, and
that no one can vote more than once in the same election.
2)Existing Voter File Maintenance Procedures : Under existing
law, each county elections official is required to conduct a
pre-election residency confirmation procedure, as specified,
prior to each statewide primary election. Generally, county
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elections officials comply with this requirement by mailing
nonforwardable residency confirmation postcards to registered
voters, or by contracting with the USPS to obtain
change-of-address information. State law also allows the
residency confirmation through the mailing of sample ballots,
under specified circumstances. If information received by the
elections official through the pre-election residency
confirmation procedure suggests that a voter has moved, the
registration of that voter may be canceled or updated, or the
voter's registration may be placed on the inactive list of
voters, depending on the type of information received by the
official. If an elections official does not receive any
information to suggest that a voter has moved as a result of
the pre-election residency confirmation procedure, the
registration of the voter is not affected.
In addition, to these pre-election residency confirmation
procedures, voter registration lists are regularly updated
with information from death records from the Department of
Health Services and from county registrars of births and
deaths, lists of individuals convicted of felonies and
sentenced to prison from the Department of Corrections and
Rehabilitation and from federal courts, change-of-address
information and other voter information from the Department of
Motor Vehicles and other state and federal agencies,
notifications from other jurisdictions that a voter has
reregistered in a new location, receipt of official mailings
returned by the USPS as undeliverable, and direct notification
from individual voters that they have moved to another
jurisdiction or otherwise changed their registration
information.
3)Information from Government Entities vs. Information from
Private Third Parties : Generally, existing state law allows a
voter's registration to be canceled, or to be placed on the
inactive list for possible eventual cancelation, only when the
elections official receives information from a governmental
entity or from the voter himself or herself that indicates
that the voter has moved or otherwise should no longer appear
on the active list of voters. Information from private third
parties can be used by the elections official to identify
voters who may have moved for additional follow-up research,
but the elections official cannot cancel a voter's
registration based solely on information from non-governmental
sources other than the voter.
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Last year the Governor signed AB 216 (Swanson), Chapter 495,
Statutes of 2012, which permits a county elections official,
when conducting a pre-residency confirmation procedure as
required by existing law, to contract with a consumer credit
reporting agency to obtain change-of-address data, in lieu of
mailing residency confirmation postcards or contracting with
the USPS to obtain postal service change-of-address data.
However, AB 216 explicitly prohibits a county elections
official from taking any action with respect to a voter's
registration even if the county elections official receives
information from the credit agency indicating that the voter
has moved unless the voter affirmatively responds to the
mailing that is sent out by the county elections official. In
doing so, AB 216 maintained the long-standing policy allowing
a county elections official to use information from a private
consumer credit reporting bureau to do additional follow-up
with voters who may have moved, but prohibiting a voter's
registration from being canceled solely based on information
from the credit bureau.
This bill, however, does not maintain that long-standing policy.
Instead it repeals the prohibition mentioned above and allows
information from consumer credit reporting agencies to be used
to cancel a voter's registration. The committee may wish to
consider whether this long-standing policy should be changed.
Furthermore, the committee should consider whether this change
will set a new precedent that allows information from other
non-governmental sources to be used to cancel a voter's
registration.
4)No Updates Unless Voter Responds : Under the pre-election
residency confirmation procedures that are used under existing
law, there are two ways in which the voter registration files
can be "cleaned-up." First, county elections officials can
update the voter rolls based on any affirmative response they
receive from a registered voter. The second way that these
procedures allow the voter rolls to be "cleaned-up," however,
is that for any voter for whom the county receives information
from US Postal Service indicating that the voter has moved,
but from whom the county does not receive an affirmative
response, the county can put that person on the inactive list
of voters, and that voter's registration is canceled
eventually if the voter does not vote in the next two federal
general elections.
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However, as noted above, if a county were to use
change-of-address information from a consumer credit reporting
agency for its pre-election residency confirmation, the only
way the voter file gets "cleaned-up" is when a voter
affirmatively responds to a mailing that is sent out in
response to change-of-address information from the credit
agency. As mentioned above, existing law does not permit any
action to be taken with respect to a voter's registration if
the county elections official receives information from the
credit agency indicating that the voter has moved unless the
voter affirmatively responds to the mailing that is sent out
by the county elections official. For voters that don't
respond to such a mailing, the county elections official does
not have the option of canceling those registrations, nor does
the elections official have the option of placing those
registrations on the inactive list of voters.
As a result, it is possible that a county that chooses to use
change-of-address information from a credit agency for its
pre-election residency confirmation could have a larger number
of voters who have moved, but for whom the county is unable
take any action with respect to those voters' registrations as
a result of the pre-election residency confirmation process.
Furthermore, some voters may remain on the active list, even
though the same voters would have had their registration moved
to the inactive list of voters if the county had used NCOA
data or mailed pre-election residency confirmation postcards
pursuant to existing law.
However, for some of the voters who don't respond, the
registration records will still be updated when the elections
official receives undeliverable election materials that are
returned by the postal service (including sample ballots and
vote by mail ballots), when the voter registers to vote in
another county, or when the voter updates his or her address
with the DMV.
5)Alternative Residency Confirmation Process : SB 1313
(Mountjoy), Chapter 5, Statutes of 1996, permits, but does not
require, a county to conduct an alternative residency
confirmation procedure for registered voters who have not
voted in recent elections. Under this procedure, a county
sends a forwardable postcard to every voter who has not voted
in the preceding four years with a request that the voter
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confirm his or her residence address. If a voter returns the
postcard and confirms that he or she continues to live at the
same address, the voter's registration remains on the active
voter list. If a voter returns the postcard and indicates
that he or she has moved, that voter's registration is updated
to the voter's new address if the voter moved within the same
county, or is canceled if the voter moved to another county.
If the voter does not respond to the alternative residency
confirmation postcard, and the postcard is not returned to the
county, the voter's registration is moved to the inactive
list.
When a voter's registration is moved to the inactive list of
voters as the result of the alternative residency confirmation
process, a provision of state law previously provided that the
voter's registration may be canceled if the voter does not
vote or offer to vote between the time of the alternative
residency confirmation mailing and two federal general
elections after the mailing. Despite the fact that state law
appeared to allow the cancelation of registrations in this
circumstance, however, in practice, registrations could not be
canceled when a voter's registration has been placed on the
inactive list of voters as the result of the alternative
residency confirmation process due to a possible conflict with
federal law and due to a stipulation between the state and the
federal government.
In 1993, the federal government enacted the National Voter
Registration Act (NVRA) of 1993, commonly referred to as
"motor voter," to make it easier for Americans to register to
vote and to remain registered to vote. Among other
provisions, NVRA prohibited a state from removing the name of
any person from the official list of voters registered to vote
in an election for federal office by reason of the person's
failure to vote. At the time the Legislature was considering
SB 1313, committee analyses in both houses indicated that the
bill could be inconsistent with this provision of the NVRA,
and one analysis noted that a federal court case that was
pending at the time was considering the issue of using a
"non-voting trigger" to send residency confirmation cards to
voters.
In October 1997, the United States filed a motion for further
relief in that court case. In its motion, the United States
contended that the alternative residency confirmation
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procedure in California law was inconsistent with the NVRA, as
described above. In February 1998, the state of California,
without conceding that the alternative residency confirmation
procedure was contrary to the NVRA, entered into a stipulation
with the United States that prohibited the cancellation of the
registration of any voter who was moved to the inactive list
as a result of the alternative residency confirmation process.
To the committee staff's knowledge, this stipulation has not
been modified, and remains in effect.
Subsequent to the adoption of that stipulation, the federal Help
America Vote Act (HAVA) of 2002 amended the provisions of the
NVRA that prohibit states from canceling voters' registrations
for failure to vote. Specifically, the NVRA now provides that
the prohibition against removing a name of a person from the
list of registered voters for failure to vote shall not be
construed to prohibit a state from using procedures outlined
in the NVRA to remove an individual from the official list of
voters if the individual has not responded to a specified
notice from the county elections official and does not vote
nor appear to vote in two or more consecutive federal general
elections. However, the specified procedures included in the
NVRA deal with change-of-address information supplied by the
USPS, and other voter registration file maintenance based on
the grounds that registrants have changed residence. Because
the alternative residency confirmation procedure is not
triggered by any information that suggests that the voter has
moved, but rather is triggered entirely by a person's failure
to vote during a specified time period, it appears that the
alternative residency confirmation procedure may still be in
conflict with federal law, notwithstanding the amendments made
to the NVRA by HAVA. Furthermore, because the stipulation
described above remains in effect, the state continues to be
prohibited from canceling the registrations of voters based on
the alternative residency confirmation process, regardless of
whether such an action is permitted by the NVRA.
As mentioned above, last year, the Governor signed into law AB
216 (Swanson), Chapter 495, Statutes of 2012. Aside from
permitting county elections officials, when conducting the
pre-election residency confirmation, to contract with a
consumer credit reporting agency to obtain change-of-address
information, the provisions of AB 216 also resolved the issue
described above. The measure deleted language in the
Elections Code that allowed a voter's registration to be
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canceled for failure to vote when that registration had been
placed on the inactive list of registered voters as the result
of the alternative residency confirmation procedure, thereby
conforming to existing practice and ensuring California was no
longer in conflict with federal law. This bill reverses the
actions that took place last year and amends the Election Code
to add the specific language that was affirmatively deleted
last year. This bill would therefore allow a voter's
registration to be canceled for failure to vote when that
registration has been placed on the inactive list as a result
of the alternative residency confirmation procedure. This
change in law could result in California again being in
conflict with federal law. The committee members may wish to
consider whether it's prudent to support a bill that arguably
could result in California being in conflict with federal law.
6)Arguments in Support : The California Association of Clerks
and Election Officials (CACEO), who have a support if amended
position on this bill, writes:
While [CACEO] favors the incorporation of consumer credit
data into the administration of the central database of
voters, [CACEO] has voted a Support If Amended due to the
requirement that the county election official cancel the
record of a voter who fails to respond and who subsequently
fails to vote. We request cancellation of the voter's
record continue to be discretionary, rather than mandatory.
Therefore, we suggest amending the word "shall" to "may"
in subsection (b) of Section 2226 and subsection (f)(3) of
Section 2227.
7)Arguments in Opposition : The California Federation of
Teachers writes in opposition:
[AB] 1170 (Donnelly) would require a county elections
official to cancel the voter registration of a voter who
fails to respond to an address verification mailing sent in
response to a change-of-address data received from the
United States Postal Service, a consumer credit report
agency, or its licensees and who does not offer to vote or
vote at any election between the date of the mailing and
two federal general elections after the date of the
mailing. The bill would additionally modify the form of a
specified residency confirmation postcard to include
information regarding the circumstances in which a voter's
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registration will be canceled. We believe this measure
aims to construct yet another barrier to block eligible
Californians from exercising their Constitutional right to
vote.
8)Previous Legislation : AB 216 (Swanson), Chapter 495, Statutes
of 2012, permits county elections officials to use
change-of-address information from consumer credit reporting
agencies, instead of using change-of-address information from
the United States Postal Service, for the purpose of updating
and maintaining the accuracy of voter registration lists.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Clerks and Election Officials (If
Amended)
Opposition
American Civil Liberties Union of California
Asian Americans for Civil Rights & Equality
California Federation of Teachers
Secretary of State Debra Bowen
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094