BILL ANALYSIS Ó
AB 2065
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Date of Hearing: March 30, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
AB 2065
(Harper) - As Amended March 18, 2016
SUBJECT: Voter registration: California New Motor Voter
Program.
SUMMARY: Changes the California New Motor Voter Program (CNMVP)
from an opt-out to an opt-in program and provides that a person
may be registered to vote under the program only if the
Department of Motor Vehicles (DMV) has a record of being
provided a document that proves that the person is a citizen.
Specifically, this bill:
1)Requires the DMV to electronically provide to the Secretary of
State (SOS) records of each person who submits an application
for a driver's license or state identification card, or a
change of address, if the proof that the person is required to
submit to prove that his or her presence in the United States
is authorized under federal law also establishes that the
person is a citizen of the United States, instead of requiring
the DMV to electronically provide to the SOS records of each
person who submits an application for a driver's license or
state identification card, or a change of address, and who
attests that he or she meets all voter eligibility
requirements, as specified.
2)Requires each person who submits an application for a driver's
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license or state identification card, or change of address, to
affirmatively agree to become registered to vote during that
transaction, instead of providing that a person will be
registered to vote unless that person opts-out.
EXISTING LAW:
1)Requires, pursuant to the federal 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 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.
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.
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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)Establishes the CNMVP. Requires the DMV, in consultation with
the SOS, to establish a schedule and method for the DMV to
electronically provide to the SOS the records of each person
who submits an application for a driver's license or state
identification card, or provides the DMV with a change of
address, as specified.
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of the Bill: According to the author:
Under the new CNMVP Act, individuals who apply at the
DMV for a driver's license or a state identification
card, or who submit a change of address form, will be
automatically registered to vote by the Secretary of
State (SOS) unless they affirmatively opt-out of
registration. As a result, persons who sign an
application but do not specifically state that they do
not wish to register to vote, will be registered to
vote regardless of whether or not that was their
intention.
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In addition, a last-minute amendment to the
legislation introduced a major security flaw that
requires the DMV to also forward the information
received from non-citizen applicants to the SOS, for
voter registration purposes. The SOS is then required
to register those persons, even though they informed
the DMV that they are not citizens, unless they
remembered to check the "no" box on the application
when asked to register to vote.
Under both state and federal law, only U.S. citizens
are entitled to register to vote, and to vote. The
drafters of the CNMVP Act apparently recognized that
this new procedure will result in non-citizens being
registered to vote, since they also changed state law
to make it much harder for prosecutors to bring
criminal charges against non-citizens who illegally
register or vote under this procedure.
But while the CNMVP Act can provide these protections
under state law, it is still a felony offense under
federal law for non-citizens to vote, or just to
register to vote, even if they registered by mistake
by failing to check the "no" box on the DMV
application.
According to the U.S. Citizenship and Immigration
Services, a lawful immigrant could be subject to
deportation for conviction of either offense.
Further, an individual may be denied naturalization,
even if the applicant was not convicted of unlawful
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voting or false claim to citizenship for voting. As a
result, the CNMVP Act harms lawful immigrants for
actions taken by the state without their affirmative
consent.
By requiring persons who fill out DMV forms to
affirmative opt-in to voter registration, and by
ensuring that only eligible citizens are registered,
AB 2065 will safeguard the right of all eligible
Californians to exercise their voting rights. It will
also ensure that legal immigrants do not accidentally
become registered to vote, which could subject them to
criminal prosecution and damage their right to stay in
the U.S. and become citizens.
2)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.
The California DMV, however, does not currently comply with
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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 Government 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).
Last 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 dual form p3)olicy. 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.
4)Motor Voter Enhancements in the 2015-16 Budget: In an effort
to comply with the NVRA's requirements, the 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 with an estimated
implementation date no later than April 1, 2016.
The new DMV process will eliminate the two form procedure
currently in place and instead will prompt an individual who
wishes to register to vote for voting-related information
(e.g. party preference, permanent vote by mail status, etc.)
to complete the voter registration process, without the need
for those individuals to repeat personal information that the
DMV already has.
5)California New Motor Voter Program: Last year, the
Legislature passed and the Governor signed AB 1461 (Gonzalez),
Chapter 729, Statutes of 2015, which provides for every person
who submits an application for a driver's license or state
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identification card, or provides the DMV with a change of
address, and who attests that he or she meets all voter
eligibility requirements, is automatically registered to vote,
unless that person opts out, as specified. Specifically, AB
1461 requires the DMV, in consultation with the SOS, to
establish a schedule and method for the DMV to electronically
provide to the SOS the records of each person who submits an
application for a driver's license or state identification
card, or provides the DMV with a change of address. AB 1461
requires the records to include the person's name; date of
birth; residence address and/or mailing address; digitized
signature; telephone number, if available; email address, if
available; language preference; political party preference;
whether the person chooses to become a permanent vote by mail
voter; whether the person affirmatively declined to register
to vote during a transaction with the DMV; a notation that the
applicant has attested that he or she meets all voter
eligibility requirements; and other information specified in
regulations adopted pursuant to the program. Additionally, AB
1461 explicitly 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.
Under the CNMVP, an individual's records that are transmitted
from the DMV to the SOS constitute a completed affidavit of
voter registration unless the person affirmatively declines to
register to vote at the DMV, the person does not attest that
he or she meets all voter eligibility requirements while at
the DMV, or the SOS determines that the person is not eligible
to register to vote.
Pursuant to existing law, the CNMVP will be implemented no
later than one year after the SOS certifies all of the
following: 1) the statewide voter registration database, also
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known as VoteCal, complies with the Help America Vote Act of
2002; 2) the Legislature has appropriated the funds necessary
for the SOS and the DMV to implement and maintain the CNMVP;
and, 3) regulations required by the CNMVP have been adopted by
the SOS.
This bill provides that a person would be registered to vote
under the CNMVP only if: 1) that person opted in to being
registered to vote, and 2) the proof of legal presence that
person provided to the DMV when obtaining a driver's license
or identification card also proved that the person was a
citizen. The author claims that these changes are necessary
due to a concern that "a last-minute amendment to the [CNMVP]?
required [the SOS] to register?persons [to vote], even though
they informed the DMV that they are not citizens."
The CNMVP, however, clearly provides that a person will not be
registered to vote if that person fails to declare his or her
eligibility, including that he or she is a citizen, under
penalty of perjury. Specifically, paragraph (2) of
subdivision (a) of Section 2265 of the Elections Code provides
that a person will not be registered to vote pursuant to CNMVP
if that person's records "do not reflect that he or she has
attested to meeting all voter eligibility requirements," as
specified, including the requirement that a person must be a
citizen in order to register to vote. Requiring a person to
attest to his or her eligibility under penalty of perjury when
registering to vote has been the longstanding policy and
practice in California. Moreover, the provisions of this bill
allowing a person to be registered to vote pursuant to the
CNMVP only if that person submitted proof to the DMV that the
person is a citizen of the United States will prevent some
citizens - including those who used a military identification
to prove legal presence to the DMV - from being registered to
vote under the CNMVP. The DMV is not required to collect, nor
does it necessarily have, information pertaining to a person's
citizenship.
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6)Documentation: Except for individuals who receive driver's
licenses pursuant to AB 60, as described below, every
applicant in California for a state identification card or
driver's license is 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.
Once a person has provided documentation of his or her legal
presence in the United States, that person typically is not
required to provide proof of legal presence again during
subsequent transactions with the DMV. As a result, it is
plausible for a person's citizenship status to change and for
the DMV to have no record. For example, if a person used a
permanent resident card to prove his or her legal presence
when obtaining a driver's license, then subsequently became a
citizen of the United States, it is unlikely that the DMV
would have any information to indicate that the person had
become a citizen. When that person renews his or her driver's
license, the DMV already has documented proof of that person's
legal presence from the initial transaction. As a result, the
DMV typically would not request the person to provide proof of
legal presence again, so it is unlikely that the DMV would
ever receive information about the change in the person's
citizenship status.
This bill provides that the DMV will forward personal
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information of individuals to the SOS for the purposes of the
CNMVP only if those individuals used a document to establish
legal presence in the country that also establishes that the
person is a citizen. The new procedure established by this
bill would prevent many individuals who are eligible to vote
from being registered to vote under the CNMVP, even if those
individuals have driver's licenses or state identification
cards. As a result, this bill can be expected to
significantly reduce the number of eligible voters who are
registered to vote under the CNMVP.
7)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, the CNMVP 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.
8)Arguments in Support: In support, the Election Integrity
Project, Inc., writes:
AB 2065 retains the benefit of simultaneous DMV
interaction and voter registration while returning the
decision to be registered to an opt-in system. This
protects the voter rolls from being overwhelmed and
bloated with people who do not wish to participate,
thus lowering the number of people on the rolls who
are ripe for undetectable voter impersonation?
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The second "fix" to AB 1461 provided by AB 2065 is the
creation and mandated procedure by which the
citizenship status of all potential registrants will
be verified prior to uploading information to the
[SOS]. It is California law that only U.S. citizens
may vote. Since the DMV is required to receive
documentation of citizenship and residency status of
each person to whom they issue a license or an ID
card, this requirement puts no additional mandate on
the office, but simply requires that DMV clerks upload
for voter registration only those who have proof of
citizenship?
9)Arguments in Opposition: In opposition, the American Civil
Liberties Union of California writes:
Section 5 of the NVRA requires that "[e]ach state motor
vehicle driver's license application (including any renewal
application) submitted to the appropriate State motor
vehicle authority under State law shall serve as an
application for voter registration with respect to
elections for Federal office unless the applicant fails to
sign the voter registration application." The NVRA requires
that states register for federal elections all individuals
who submit a voter registration application in this manner
and prohibits states from imposing any additional
requirements on such individuals, including proof of
citizenship requirements. Thus, the proposed legislation
would unlawfully add a proof of citizenship requirement to
voter registration at DMV in direct violation of federal
law.
Notably, the NVRA requires that the voter registration
application at DMV list a state's voter eligibility
requirements, including citizenship, and requires
applicants attest to meeting the eligibility requirements
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under penalty of perjury. California's New Motor Voter law
already reinforces this requirement by specifically
requiring DMV to transmit the attestation to eligibility to
the Secretary of State as part of the voter registration
application.
10)Double-Referral: This bill has been double-referred to the
Assembly Committee on Transportation.
REGISTERED SUPPORT / OPPOSITION:
Support
Election Integrity Project, Inc.
Howard Jarvis Taxpayers Association
Three individuals
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Opposition
American Civil Liberties Union of California
California Labor Federation
Secretary of State Alex Padilla
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094