BILL ANALYSIS Ó
AB 391
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Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 391
(Gallagher) - As Introduced February 18, 2015
SUBJECT: Voter registration: conditional voter registration.
SUMMARY: Requires a person to provide proof of residence to
conditionally register to vote, as specified. Specifically, this
bill:
1)Requires a person who completes a conditional voter
registration in accordance with existing law to provide proof
of residence in order to register to vote during the 14 days
immediately preceding an election or on election day.
Provides that proof of residence shall include any of the
following:
a) A valid California driver's license, driver's
instruction permit, or identification card;
b) A valid student identification card with an identifying
photograph;
c) A tribal identification card with an identifying
photograph and signature; or,
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d) Photo identification, which may include a driver's
license, state identification card, passport, military
identification card, tribal identification card, or student
identification card, and a current bill identifying the
name and address of the registrant. Provides that a
current bill identifying the name and address of the
registrant may include a utility bill within 30 days of
election day, a rent statement dated within 30 days of
election day, or a current student fee statement.
2)Requires an elections official, if a conditional voter
registration is not deemed effective, to process the affidavit
of registration in accordance with existing law and if the
registrant meets all other eligibility requirements to
register to vote, to deem the registration effective in
forthcoming elections.
EXISTING LAW:
1)Requires a person who desires to register to vote to sign an
affidavit of registration, under penalty of perjury, attesting
that the person lives at the residence listed.
2)Provides that a properly executed affidavit of voter
registration shall be deemed
effective upon receipt by the elections official if postmarked
or received on or before
the 15th day prior to an election.
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3)Authorizes a person who is otherwise qualified to register to
vote to complete a conditional voter registration and cast a
provisional ballot during the 14 days immediately preceding an
election or on election day, as specified.
4)Provides that a conditional voter registration is deemed
effective only if the county elections official is able to
determine before or during the canvass period for the election
that the registrant is eligible to register to vote and that
the information provided by the registrant matches information
contained in a database maintained by the California
Department of Motor Vehicles or the federal Social Security
Administration.
5)Requires county elections officials to offer conditional voter
registration and
provisional voting at its permanent offices, and permits them
to offer this type of
registration and voting at satellite offices on election day.
6)Specifies that conditional voter registration as described
above becomes operative
on January 1 of the year following the year in which the
Secretary of State (SOS)
certifies that the state has a statewide voter registration
database that complies with
the requirements of the federal Help America Vote Act of 2002
(HAVA). It is anticipated that this statewide voter database
will become operative in 2016, therefore conditional
voter registration will commence in 2017.
7)Requires a voter who appears at the polling place to vote to
announce his or her name and address to a precinct officer.
Requires the precinct officer, upon finding the name in the
roster of voters, to repeat the voter's name and address.
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Requires the voter to then write his or her name and residence
address on a roster of voters, whereupon the voter is provided
a ballot.
8)Permits a voter to vote a provisional ballot if his or her
qualification or entitlement to vote cannot be immediately
established upon examination of the roster of voters for the
precinct or upon examination of the records on file with the
county elections official.
9)Authorizes a member of the precinct board to challenge the
ability of a person to vote on various grounds, including that
the voter is not the person whose name appears on the index,
is not a precinct resident, is not a U.S. citizen, has already
voted on that day, or is on parole for the conviction of a
felony.
10)Requires a voter who submits his or her voter registration
form by mail, and who has not previously voted in a federal
election, to present one of a number of specified documents to
establish identity before receiving a ballot. This
requirement only applies the first time an individual votes at
a federal election after registering to vote.
FISCAL EFFECT: Unknown. State-mandated local program; contains
reimbursement direction.
COMMENTS:
1)Purpose of the Bill: According to the author:
In 2012, California followed the example of several other
states by enacting a "same-day registration" process, which
will allow persons to register to vote and vote during the
last 14 days before and during the day of the election.
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But unlike every other same-day registration state, we
neglected to include any requirement for persons to show
some evidence that they actually live in the precinct in
which they seek to cast a vote. The National Conference of
State Legislatures has emphasized that proof of residency
for same-day registration is a key requirement to prevent
fraud.
As a result, our system will not be able to prevent persons
using phony names from registering and voting multiple
times during the last two weeks of the election cycle.
This lack of safeguards places California far outside of
the mainstream of other same-day registration states, and
will leave our election system dangerously susceptible to
fraud. And every illegal vote cast disenfranchises an
honest voter.
Unfortunately, as seen in Senator Correa's election, voter
fraud is a very real phenomenon in California today. Just
ask former Senator Lou Correa, who was Chair of the Senate
Elections Committee. After losing a special supervisorial
election in Orange County by only 43 votes, Sen. Correa
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conducted an investigation and found that the results were
apparently marred by numerous cases of illegal vote-by-mail
ballot buying and harvesting, voters who cast multiple
ballots by registering and voting under false names, and at
least 42 cases of votes cast by persons who did not live in
the district.
AB 391 will help prevent these kinds of abuses by requiring
same-day registrants in California to show proof of
residency, just like they do in every other same-day
registration state. It will allow persons to use the same
documents as those allowed in the State of Minnesota, a
progressive state that has had same-day registration since
1974. These common-sense protections will prevent the kind
of fraud and abuse we recently saw in the Orange County
special election, and will ensure that non-residents cannot
cast fraudulent votes and thereby disenfranchise honest
voters.
2)VoteCal: VoteCal is a federally required statewide voter
registration database that complies with the requirements of
the HAVA. It will provide a single, uniform, centralized voter
registration database. According to the SOS's office,
VoteCal's implementation will begin with five pilot counties
in July 2015, and the remaining counties will deploy in groups
with full deployment expected in June 2016. VoteCal's many
functions will provide improved service to the voters of
California by connecting the SOS and all 58 county elections
offices together to improve the voter registration process,
provide a publicly available website which will allow voters
to register online, and provide a single, official statewide
database of voter registration information.
According to the SOS's website, Section 303 of HAVA (Public
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Law 107-22, 107th Congress) sets forth the computerized
statewide voter registration list requirements. According to
HAVA, each state is required to implement a single, uniform,
official, centralized, interactive computerized statewide
voter registration list defined, maintained, and administered
at the state level. The computerized list will have the
capability to do the following:
- Serve as the single system for storing and managing
the official list of registered voters;
- Contain the name and registration information of
every legally registered voter in the state;
- Assign a unique identifier to each legally
registered voter in the state;
- Provide electronic accessibility to the information
contained in the list to any election official in the
state;
- Allow all voter registration information to be
electronically entered into the computerized list by any
local election official in the state; and,
- Serve as the official voter registration list for
the conduct of all elections for federal office in the
state.
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In addition, each state is required to perform list
maintenance to the computerized list on a regular basis. As a
result, California is required to coordinate the computerized
list with the California Department of Corrections and
Rehabilitation regarding felony status and the California
Department of Public Health regarding death records. The list
maintenance is required to be conducted in a manner that
ensures that:
- The name of each registered voter appears in the
computerized list;
- Only voters who are not registered or who are not
eligible to vote are removed from the computerized list;
and,
- Duplicate names are eliminated from the computerized
list.
Moreover, federal law requires the database to provide
technological security to prevent unauthorized access to the
computerized list, ensure that voter registration records in
the state are accurate and updated regularly through a system
of file maintenance and safeguards are in place so eligible
voters are not removed in error, verify the voter registration
information of applicants, as specified, and match information
in the database of the computerized list with the database of
the motor vehicle authority that has an agreement with the
federal Social Security Administration to verify applicable
information.
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1)Conditional Voter Registration: In 2012, the Legislature
approved and Governor signed AB 1436 (Feuer), Chapter 497,
Statutes of 2012, which established conditional voter
registration, also known as "same-day" registration in
California. Specifically, current law authorizes a person who
is otherwise qualified to register to vote to complete a
conditional voter registration and cast a provisional ballot
at the elections officials' permanent office during the 14
days immediately preceding an election or on election day.
After receiving a conditional voter registration, current law
requires an elections official to determine the registrant's
eligibility to register to vote and validate the information,
as specified. If the conditional voter registration is deemed
effective, the registrant's provisional ballot is included in
the official canvass.
The author argues that because our conditional voter
registration process does not require a person to show proof
of residency, our system as a result, will not be able to
prevent persons using phony names from registering and voting
multiple times during the last two weeks of an election.
However, conditional voter registration will not be operative
until January 1 of the year following the year in which
VoteCal is implemented. It is anticipated that VoteCal will
become operative in 2016, therefore conditional voter
registration will commence in 2017. One of the main reasons
for delaying implementation of AB 1436 was to ensure the tools
were in place to verify a person's eligibility to register and
vote. The delayed implementation of conditional voter
registration until VoteCal is deployed will allow county
elections officials and the SOS to verify in real time a
citizen's voter registration and prevent a person from
registering and voting multiple times because every county
elections official will access one statewide database that
will be updated in real time.
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Additionally, VoteCal will not only make voter registration more
efficient, it will also help resolve attempts of voter fraud.
Under VoteCal a voter will have a single voter file that will
follow them when they move, between and within counties. For
example, when a voter moves from one county to another, the
voter record will be maintained at the original address (in
the originating county) until the record is updated. If there
is a match between a change of address transaction and an
existing voter record, VoteCal will automatically update the
existing voter registration record with the new data. Similar
action would take place should there be duplicate voter
registration. For instance, an elections official is required
to cancel any duplicate voter registration that exists as a
result of a conditional registration that is deemed effective.
2)Higher Penalties for Conditional Voter Registration Fraud:
Under state law, when a person registers to vote, that person
attests under penalty of perjury that he or she is a United
States (U.S.) citizen, a resident of California, not in prison
or on parole for the conviction of a felony, not deemed
mentally incompetent, and at least 18 years of age at the time
of the next election. Additionally, a person who registers to
vote while knowing that he or she is not entitled to
registration is guilty of a wobbler - a crime that can be
charged as a misdemeanor or a felony. Any person who votes or
attempts to vote at an election when he or she is not entitled
to vote is guilty of a felony. In addition, current law
provides that any person who willfully causes, procures, or
allows himself or herself or any other person to be registered
as a voter, knowing that he or she is or the other person is
not entitled to registration, is punishable by imprisonment
for 16 months or two or three years, or in a county jail for
not more than one year. Moreover, current law provides that
any person who knowingly and willfully signs, or causes or
procures the signing of, an affidavit of registration of a
nonexistent person, and who mails or delivers, or causes or
procures the mailing or delivery of, that affidavit to a
county elections official is guilty of a crime punishable by
imprisonment for 16 months or two or three years, or in a
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county jail for not more than one year.
As mentioned above, under conditional voter registration, an
individual is authorized to conditionally register to vote
after the 15th day prior to an election, and to cast a
provisional ballot. All of the same procedures and
protections that are in place for a provisional ballot will
apply to a conditional voter registration that is deemed
effective. However, the penalties for committing fraud in the
execution of a conditional voter registration are higher. The
penalties for a person who commits fraud in the execution of a
conditional voter registration is punishable by imprisonment
in the county jail for up to one year, or a fine up to
twenty-five thousand dollars ($25,000), or both that fine and
imprisonment. Moreover, in addition to the criminal penalties
prescribed above, a person who commits fraud in the execution
of a conditional voter registration will also be subject to a
civil fine of an amount up to $25,000.
3)Other States: According to a 2015 report by the National
Conference of State Legislatures (NCSL), 10 states and the
District of Columbia offer same-day registration, which allows
any qualified resident of the state to go to the polls or an
election official's office on election day, to register to
vote that day, and cast a ballot. In addition, California and
Hawaii have enacted same-day registration, but have not yet
implemented it. Moreover, according to the report, Illinois
piloted same-day registration at limited locations during the
2014 general election and made it permanent earlier this year,
with a statewide implementation date in June of this year.
The report states that a key requirement in most states that
offer same-day registration is to require a prospective voter
to show proof of residency at the time of registration, such
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as a driver's license or identification card. Some states
permit documents such as a paycheck or utility bill with an
address as acceptable to proving residence. In addition, some
states permit an already-registered voter to vouch for the
residency of an election day registrant. The author argues
that the lack of this safeguard places California far outside
of the mainstream of other same-day registration states, and
as a result will leave California dangerously susceptible to
fraud.
However, according to a 2013 NCSL report, another key component
that will also help prevent voter fraud is to segregate
same-day registrant ballots. For instance, in Montana, any
same-day voter who is unable to meet the identification
requirements is required to cast a provisional ballot, which
is not counted until eligibility is verified.
Many of the states that authorize same-day registration provide
the registrant with a live ballot. That, however, is not how
the process will work here in California. As mentioned above,
California law permits a same-day registrant, after they are
deemed qualified to register to vote, to cast a provisional
ballot. Requiring a voter to cast a provisional ballot will
ensure the voter's registration is thoroughly reviewed and
verified before his or her ballot is counted. Moreover, most
of the states that permit same day registration also authorize
a person to register and vote at a polling place. That will
not be the case here in California. Current law only permits
a person to conditionally register and to vote at an
election's official's office, as specified.
4)Voters Who Lack ID: A November 2006 survey by the Brennan
Center for Justice found that 11% of U.S. citizens do not have
government-issued photo identification. To the extent that
this figure is reflective of the California electorate, it is
possible that a significant number of Californians who are
eligible to vote do not have a form of identification that
would meet the requirements of this bill. This same survey
also demonstrated that certain groups - primarily poor,
elderly, and minority citizens - are less likely to possess
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these forms of identification.
5)Arguments in Support: In support, the Howard Jarvis Taxpayers
Association, writes:
[Howard Jarvis Taxpayers Association] has taken a
longstanding interest in protecting the integrity of the
ballot [box]. We opposed AB 1436 because of the likelihood
of increased fraud from thousands of people registering to
vote in the last two weeks of an election. The safeguards
in AB 391 should apply to [same day registration] voters
because the address of the resident will not be able to be
verified before the election. All ten other states that
have [same day registration] also mandate this requirement.
In previous "Voter ID" bills rejected by the Legislature,
the argument has been made that such a policy
disenfranchises voters who may not have or cannot afford to
pay for the appropriate identification. However, it is now
common for bank credit and debit cards to include a photo
ID. Upholding our democracy depends on showing that voters
live at valid addresses. Even though under the [same day
registration] system voters must be asked for the last four
digits of their Social Security card, there is no
requirement under current law to prevent someone from
voting if the numbers don't match. Therefore, the only way
to ensure total compliance is by passing AB 391.
6)Arguments in Opposition: In opposition, California State
Council of the Service Employees International Union, writes:
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Existing law already establishes proper and adequate
procedures and requirements for determining whether a
conditional voter registration is deemed effective,
including review by the elections official to determine the
right to vote, prior to the ballot being included in the
official count.
AB 391 would threaten to suppress and disenfranchise
minority voters, particularly Latino voters under the guise
of maintaining election integrity?
As California continues to be a model to other states in
conducting elections, this proposal is merely a proposed
solution in search of a perceived problem.
7)Related Legislation: SB 439 (Allen), which is pending in the
Senate Appropriations Committee, permits county elections
officials to offer conditional voter registration and
provisional voting at satellite offices after the 15th day
prior to an election through and including election day.
8)Previous Legislation: AB 843 (Logue) of 2013, was similar to
this bill. AB 843 was never heard in this committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Election Integrity Project, Inc.
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Howard Jarvis Taxpayers Association
Opposition
Secretary of State Alex Padilla
California State Council of the Service Employees International
Union
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094