BILL ANALYSIS Ó SENATE COMMITTEE ON ELECTIONS AND CONSTITUTIONAL AMENDMENTS Senator Ben Allen, Chair 2015 - 2016 Regular Bill No: AB 1461 Hearing Date: 6/30/15 ----------------------------------------------------------------- |Author: |Gonzalez | |-----------+-----------------------------------------------------| |Version: |6/23/15 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Darren Chesin | | | | ----------------------------------------------------------------- Subject: Voter registration: Department of Motor Vehicles DIGEST Provides that every person who has a driver's license or state identification card and who can be identified as eligible to register to vote to be automatically registered to vote, unless that person opts out, as specified. ANALYSIS Existing law: 1) Requires, pursuant to the National Voter Registration Act (NVRA) of 1993, each state to offer voter registration services at motor vehicle agency offices, offices that provide public assistance, offices that provide state-funded programs primarily engaged in providing services to persons with disabilities, Armed Forces recruitment offices, and other state and local offices within the state designated as NVRA voter registration agencies. 2) Requires the Department of Motor Vehicles (DMV) to provide the opportunity to register to vote to individuals who apply for, renew or change an address for a driver's license or personal identification card issued by the DMV. 3) Requires a driver's license or identification application to be used as an application for voter registration, unless the applicant fails to sign the application. AB 1461 (Gonzalez) Page 2 of ? 4) Requires change of address information received by the DMV to be used for the purpose of updating voter registration records, unless the registrant chooses otherwise. 5) Provides that a person entitled to register to vote shall be 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. 6) Requires a county elections official to cancel the registration of any person if the mental incompetency of that person is legally established, as provided. 7) Provides a person may not be registered to vote except by affidavit of registration. 8) Permits a registered voter to cancel his or her voter registration at any time by submitting a signed, written request to the county elections official. 9) Requires an applicant for an original driver's license or identification card to submit satisfactory proof that the applicant's presence in the United States is authorized under federal law. 10)Provides that the DMV shall issue an original driver's license to a person who is unable to submit satisfactory proof that the applicant's presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency, as specified. This bill: 1)Requires the DMV to electronically provide to the Secretary of State (SOS) the records of a person who is issued an original or renewal driver's license or state identification card, as specified: a) Requires the DMV to electronically provide the records to the SOS of a person if the proof that the applicant is required to submit to prove that his or her presence in the AB 1461 (Gonzalez) Page 3 of ? United States is authorized under federal law, also establishes that the applicant is a citizen of the United States. b) Requires the records to include the person's name, age, residence address, electronic signature, and other voter registration information collected electronically by the DMV. c) Prohibits the DMV from electronically providing the records of a person who is issued a driver's license pursuant to specified provisions of law because that person is unable to establish satisfactory proof that his or her presence in the United States is authorized under federal law. d) Prohibits records from being transferred from the DMV to the SOS pursuant to this bill until after the SOS certifies that the state has a statewide voter registration database that complies with the requirements of the federal Help America Vote Act. 1)Requires the SOS, upon receipt of the records from the DMV, to provide the records to the county elections official of the county in which the person may be registered to vote, unless the SOS determines that the person is not eligible to register to vote or is already registered to vote. 2)Requires the SOS to notify each person whose records are sent to a county elections official of the following: a) That the person will be registered to vote unless he or she declines to be registered within 21 days after the date the SOS issues the notification; b) The method by which the person may decline to be registered to vote; c) The method by which the person may include his or her political party preference on his or her voter registration. d) The method by which he or she may apply for permanent vote by mail status. AB 1461 (Gonzalez) Page 4 of ? e) The method by which he or she may provide a telephone number, email address, or other contact information. 1)Provides that if a person notified as detailed above does not decline to be registered to vote within 21 days after the date that the SOS issues the notification, that person's records shall constitute a completed affidavit of registration and the person shall be registered to vote. 2)Provides that this bill shall not affect the confidentiality of a person's voter registration information. 3)Requires the SOS to adopt regulations to implement this bill including regulations addressing both of the following: a) The form, content, and language options for the notice to potential registrants described above. b) A process for canceling the registration of a person who is ineligible to vote, but became registered pursuant to this bill provided that ineligible person did not willfully register to vote in violation of existing law. BACKGROUND National Voter Registration Act . In 1993, the federal government enacted the NVRA, commonly referred to as the "motor voter" law, to make it easier for Americans to register to vote and to remain registered to vote. Among other provisions, the NVRA requires states to provide individuals with the opportunity to register to vote at the same time that they apply for or renew a driver's license, requires states to offer voter registration opportunities at all offices that provide public assistance, guarantees that citizens can register to vote by mail using uniform federal registration forms, and establishes procedures for how states maintain voter registration lists for federal elections. One of the provisions of the NVRA prohibits the voter registration portion of a driver's license application from requiring any information that duplicates information required in the driver's license portion of the form, other than a second signature or a statement attesting to the person's eligibility to register to vote. AB 1461 (Gonzalez) Page 5 of ? The California DMV, however, does not currently comply with NVRA's prohibition on requiring duplicate information. Rather, a separate voter registration form is attached to the driver's license form which requires the affiant to fill in duplicate information. This dual form policy was the result of a settlement in a lawsuit to force the State of California to comply with NVRA when former Governor Pete Wilson refused to implement it unless federal funding was provided (NVRA did not provide the states with any direct funding or any mechanism for reimbursement of costs associated with implementation). Motor Voter Enhancements in the 2014-15 Budget . Earlier this year, a letter was sent to the SOS from the ACLU Foundation of San Diego and Imperial Counties, Dmos, Morrison & Forester LLP, and Project Vote stating that California is engaging in continuous and ongoing violations of the NVRA due to the states aforementioned dual form policy. The letter also stated that it constituted a formal notice of the senders' intent to initiate litigation at the end of the statutory 90-day waiting period should California fail to remedy the violations of the NVRA, as specified. In response to that letter, and in an effort to now comply with the NVRA's requirements, the Governor's May Budget Revision and the subsequently enacted 2015-16 State Budget included $2.35 million in the SOS's budget to improve the voter registration process at the DMV with $1.25 million of it directed to DMV for this purpose. According to the State Transportation Agency, which oversees the DMV, this budget item will provide for all of the following: 1)Enhance DMV's on-line driver license renewal process by utilizing an application provided by the SOS that would pre-populate DMV-related information to an online voter registration form. By enhancing the driver license renewal by Internet process, applicants can complete their DMV driver license renewal online and subsequently register to vote. The information required for both DMV and voter registration will be pre-populated into an application allowing the applicant to complete the voter registration process. Once the voter registration process is complete, the information would be submitted electronically to the SOS. 2)Enhance the in-person DMV field office visit by utilizing the signature capture tablet that is connected to the camera AB 1461 (Gonzalez) Page 6 of ? station that would prompt the applicant through voter specific information. The current Driver License/Identification Card contract is in need of a refresh to both software/hardware. As part of the refresh, the signature capture tablets would be replaced with a larger tablet that would enable the applicant to provide voter specific responses (e.g. party affiliation, permanent vote by mail status, etc.) allowing the applicant to register to vote. Upon completion of the signature and photo (that is used for the driver license), the information would later be merged with both the DMV and voter specific information and sent electronically to the SOS. 3)Estimated implementation date would be no later than April 1, 2016. This bill, by establishing automatic registration, with a subsequent opt-out process, would seem to replace current opt-in process going forward, including the enhancements included in the budget. California Registration Statistics . According to the most recent report of registration produced by the SOS, there are 17,717,936 registered voters in California out of an estimated 24,362,774 Californians who are eligible to register to vote, meaning that approximately 72.7 percent of eligible Californians are registered to vote. Over the last 50 years, the percentage of eligible Californians who were registered to vote has been as high as 80.2 percent (in 1996) and as low as 66.3 percent (in 1979). Oregon's Automatic Voter Registration . While numerous other nations provide some form of automatic voter registration, no U.S. states currently take the responsibility for proactively registering eligible individuals to vote -- instead, almost every state puts the impetus on individuals to register themselves to vote (North Dakota, which is the only state without voter registration, is the exception). The idea of making the government responsible for proactively registering voters when the government has information to verify individuals' eligibility to vote -- sometimes referred to as "automatic voter registration" -- received renewed attention earlier this year when the Oregon Legislature passed and the Governor signed House Bill 2177, which will require Oregon elections officials to automatically register people to vote if AB 1461 (Gonzalez) Page 7 of ? the state Department of Transportation has information indicating that those people are eligible to register to vote. Individuals will have the option to opt-out of being registered. However, Oregon's automatic voter registration bill was signed into law only this last March, and the bill lacks many details on how automatic voter registration will work, instead allowing those details to be determined by regulation or rule. The bill did require, however, that the Oregon Secretary of State and the Department of Transportation must implement various aspects of the bill by January 1, 2016. VoteCal . On October 29, 2002, President George W. Bush signed the Help America Vote Act (HAVA) of 2002 (116 STAT. 1666, Public Law 107-252). Enacted partially in response to the 2000 Presidential election, HAVA was designed to improve the administration of federal elections. Among other provisions, HAVA requires every state to implement a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the state level. This statewide voter registration list will serve as the official list of eligible voters for any federal election held within the state. At the time HAVA was approved, California was already using a statewide voter registration system, known as Calvoter, which achieved some of the goals of the voter registration list required by HAVA. However, Calvoter did not satisfy many of the requirements in that law, including requirements that the database be fully interactive and have the capability of storing a complete voter registration history for every voter. Discussions between the United States Department of Justice (Justice Department) and the SOS led to the adoption of a memorandum of agreement (MOA) between the two parties. In that MOA, the SOS committed to further upgrades to the Calvoter system to achieve short term interim compliance with the requirements of HAVA, and to complete development and implementation of a longer term solution for replacing the Calvoter system with a new permanent statewide voter registration system. That new permanent system is commonly known as VoteCal. After a number of delays, the VoteCal system is being developed and is currently in testing. The system is AB 1461 (Gonzalez) Page 8 of ? scheduled to be rolled out to five counties this July as a pilot, and if VoteCal is operating as anticipated, it will then be deployed to the remaining 53 counties in six waves between October 2015 and March 2016. After the final wave is completed, the SOS will certify VoteCal as the system of record for voter registration information in California. The current project schedule provides for that certification to occur by June 2016. The implementation of VoteCal will help streamline the voter registration process, including allowing voters to update their voter registration records seamlessly when they update their address with the DMV or with the state's Employment Development Department. VoteCal will also make it easier and more efficient for elections officials to do "list maintenance," including identifying and eliminating duplicate registrations, transferring a voter's record from one county to another when the voter moves, and canceling the registrations of individuals who are no longer eligible to vote. Determination of Eligibility to Register . Under California law, a person is eligible to register to vote if he or she is a United States citizen, a resident of California, not in prison or on parole for conviction of a felony, and will be at least 18 years old at the time of the next election. Additionally, as detailed above, existing law requires a county elections official to cancel the registration of any person if the mental incompetency of that person has been legally established, as specified. Under this bill, the DMV would be required to provide the SOS with specified personal information about individuals who have a driver's license or identification card and who submitted documentation to the DMV that establishes that they are citizens. Since 1994, every applicant in California for a state identification card or driver's license has been required to provide verification of birth date and proof of legal presence in the United States. (As detailed below, beginning this year, individuals who are unable to submit satisfactory proof of legal presence in the United States are now eligible to apply for and receive driver's licenses. Those driver's licenses -- commonly referred to as "AB 60 licenses" after the bill that authorized their issuance, are distinguishable from non-AB 60 licenses. Individuals who wish to receive a non-AB 60 license are still AB 1461 (Gonzalez) Page 9 of ? required to provide proof of legal presence in the United States.) In order for a person to prove legal presence, an applicant is required to provide the original or a certified copy of one of 28 different documents to the DMV. Of those 28 documents, some (such as a United States passport) are documents that are available only to citizens, while others (such as a permanent resident card) would be issued only to individuals who were not citizens. Other acceptable documents (such as a United States military identification card) could be issued to citizens or non-citizens. According to the DMV and the State Transportation Agency, DMV records contain information about the document that individuals used to establish legal presence in the country. (For individuals who were originally issued a driver's license or identification card prior to 1994, the DMV does not have such information, since a person was not required to prove his or her legal presence in the country.) Under this bill, the DMV would forward the personal information to the SOS of individuals who have a driver's license or identification card and who used a document to establish legal presence in the country that also establishes that the person is a citizen. Once that information was received from the DMV, the SOS would need to make a determination about which of those individuals are (1) eligible to register to vote, and (2) not already registered to vote. In order to determine which individuals were already registered to vote, the SOS would need to check the list received from the DMV against the statewide voter registration database. In order to establish a person's eligibility to vote, the SOS would need to limit the information received from the DMV to those individuals who were at least 18 years old, and then would need to check that list of names against records that the SOS receives (including court records and death records) to exclude those individuals who are not eligible to register to vote. Because the procedure established by this bill is limited to people for whom the DMV has evidence that they are citizens, many individuals who are eligible to vote will not be registered to vote under this bill, even if those individuals have driver's licenses or state identification cards. For example, the DMV does not know whether a licensee is a citizen or not if that licensee used a United States military identification card to AB 1461 (Gonzalez) Page 10 of ? prove his or her legal presence in the country. Similarly the DMV will not necessarily have information to confirm the citizenship of individuals who were originally issued licenses or identification cards prior to 1994, or for individuals who became citizens after being issued a driver's license or identification card. COMMENTS 1)According to the author : Congress enacted the federal National Voter Registration Act of 1993, commonly known as the "Motor Voter Law," to increase the number of eligible citizens who register to vote. However, more than 20 years after the passage of the Act, voter registration still stands as one of the biggest barriers to participation in our nation's democracy. In fact, California ranked 38th among the 50 states in voter registration in 2014 with nearly 7 million Californians eligible to vote but not yet registered. Moreover, voter turnout nationwide was the lowest since World War II in 2014, with California ranking 43rd in voter participation. Additionally, the federal Motor Voter Law is based largely on a paper process and does not fully utilize modern electronic data technologies to make voter registration easier, more convenient, and more efficient. AB 1461 will enact the California New Motor Voter Act to make voter registration easier when citizens get or renew a driver's license, thereby increasing opportunities for eligible citizens to participate in democracy by voting. This bill seeks to address voter registration as a barrier to voting. New research using Google searches concluded that about 3 million to 4 million more people would have voted in 2012 if voter registration were easier and more convenient. This bill is a way to ensure that eligible California voters will not be denied the right to vote due to difficulties registering. 2)Conditional Voter Registration (a.k.a., "Election Day" Registration) . AB 1436 (Feuer, Chapter 497, Statutes of 2012), permits "conditional voter registration," under which a AB 1461 (Gonzalez) Page 11 of ? person is allowed to register to vote and vote at the office of the county elections official at any time, including on election day, if certain requirements are met. Conditional voter registration will not go into effect until January 1 of the year following the date that the SOS certifies the operation of VoteCal. Under conditional voter registration, voters will cast provisional ballots which will be counted only if the elections official is able to determine the person's eligibility to vote, as specified. Once conditional voter registration is in effect, registering to vote in advance of an election will no longer be necessary, and voter registration requirements will be less of a barrier to voter participation than under existing law. Notwithstanding that fact, there will still be advantages to having voters registered to vote prior to Election Day. First, voters who are registered in advance of Election Day will receive official election materials that contain information about the candidates, races, and measures that will appear on the ballot. Second, conditional voter registration is not required to be offered at every polling place -- instead it will be offered only at the office of the county elections official, and at satellite locations that may be set up at the discretion of elections officials. By registering to vote in advance of Election Day, voters will be able to cast a ballot at their local polling place, or will be able to cast a vote by mail ballot if they desire. In light of these facts, and notwithstanding the fact that conditional voter registration will soon be in effect, automatically registering certain individuals to vote unless they opt out could help reduce barriers to voter participation. 3)Increase in "No Party Preference" Voters ? California's voter registration form asks the registrant whether he or she wishes to disclose a political party preference. A registrant has the option of selecting to disclose a preference for one of the six qualified political parties in the state, to disclose a preference for a political body that is attempting to qualify as a political party, or to decline to disclose a party preference. Any voter who chooses this last option, along with any voter who fails to choose any option, is registered as "no party preference" (NPP). While this bill requires the SOS to notify every voter who is AB 1461 (Gonzalez) Page 12 of ? registered to vote under its provisions of the procedure for choosing a political party, those who do not avail themselves of that procedure will automatically be designated as NPP voters. By virtue of that fact, it is reasonable to expect that this bill will result in a significant increase in the number and percentage of voters who are registered as NPP voters. 4)AB 60 Licensees . AB 60 (Alejo, Chapter 524), Statutes of 2013, requires the DMV to issue an original driver's license to an applicant who is unable to submit satisfactory proof of legal presence in the United States. Driver's license applicants under AB 60 must meet all other qualifications for licensure and must provide satisfactory proof of identity and California residency. The DMV began accepting applications for licenses under AB 60 on January 2, 2015. Because the AB 60 licensing process was specifically established for individuals who are unable to submit satisfactory proof of legal presence in the United States, this bill expressly prohibits the DMV from transmitting information to the SOS about individuals who applied for or received a driver's license pursuant to AB 60. 5)Fiscal Impact . The Assembly Appropriations Committee reported the following costs associated with this bill: (a) the DMV estimates costs of approximately $640,000 in 2015-16 and $530,000 annually thereafter related to programming, driver's license form modifications, and increased talk-time in field offices, and (b) the SOS will incur significant mailing costs to notify persons automatically registered to vote, through transmission of their DMV records, that they may opt out of registration within 21 days. 6)Double-Referral . This bill is double-referred to the Senate Transportation and Housing Committee. RELATED/PRIOR LEGISLATION AB 786 (Levine) requires the DMV, in coordination with the SOS, to the extent the state's plan for implementation of the federal NVRA is inconsistent with the NVRA, to take additional steps to fully implement and further comply with the NVRA. However, committee staff was informed by the author of AB 786 that it would be amended and used for a purpose unrelated to voter AB 1461 (Gonzalez) Page 13 of ? registration. SB 439 (Allen), which is pending in the Assembly Elections and Redistricting Committee, permits county elections officials to offer conditional voter registration at satellite offices during the entire 14 days immediately preceding Election Day, among other provisions. PRIOR ACTION ------------------------------------------------------------------ |Assembly Floor: |52 - 26 | |--------------------------------------+---------------------------| |Assembly Appropriations Committee: |12 - 5 | |--------------------------------------+---------------------------| |Assembly Elections and Redistricting | 7 - 2 | |Committee: | | |--------------------------------------+---------------------------| |Assembly Transportation Committee |10 - 5 | | | | ------------------------------------------------------------------ POSITIONS Sponsor: Secretary of State Alex Padilla Support: Alameda County Board of Supervisors American Federation of State, County and Municipal Employees California Association of Nonprofits California Labor Federation California League of Conservation Voters California Professional Firefighters California Public Interest research Group California School Employees Association California State Council of the Service Employees International Union California Teachers Association Congregations Building Community Los Angeles County Board of Supervisors Mi Familia Vota Education Fund Sierra Club California State Coalition of Probation Organizations University of California Student Association AB 1461 (Gonzalez) Page 14 of ? Oppose: American Civil Liberties Union of California -- END --