BILL ANALYSIS                                                                                                                                                                                                    Ó
                                                                    AB 2466
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          Date of Hearing:  April 13, 2016
                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                Shirley Weber, Chair
          AB 2466  
          (Weber) - As Amended April 6, 2016
          SUBJECT:  Voting:  felons.
          SUMMARY:  Conforms state law to a recent Superior Court ruling  
          in Scott v. Bowen, in which the court found that individuals on  
          post-release community supervision (PRCS) and mandatory  
          supervision are eligible to vote under Section 2, Article II of  
          the California Constitution, as specified.  Makes other  
          significant changes to voter eligibility provisions of law, as  
          specified.  Specifically, this bill:  
          1)Provides that a person who is not imprisoned or on parole for  
            the conviction of a felony, instead of a person who is not in  
            prison or on parole for the conviction of a felony, is  
            eligible to register to vote, as specified.  Provides that the  
            following definitions apply to these provisions:
             a)   Defines "imprisoned" to mean currently serving a state  
               or federal prison sentence.
             b)   Defines "parole" to mean a term of supervision by the  
               Department of Corrections and Rehabilitation (CDCR).
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             c)   Provides that "conviction" does not include a juvenile  
               adjudication made pursuant existing law.  
          2)Makes changes to statements required to be included in printed  
            literature and media announcements used in county programs  
            designed to encourage registration of electors and requires  
            the statements to state that a person entitled to register to  
            vote must be a United States citizen, a California resident,  
            at least 18 years of age at the time of the election, and  not  
            currently in state or federal prison or on state parole for  
            the conviction of a felony, instead of not in prison or on  
            parole for the conviction of a felony, 
          3)Makes changes to statements required to be sent to county  
            elections officials, on the basis of records from the courts,  
            that shows the names, addresses, and dates of birth of all  
            persons who have been convicted of felonies since the clerk's  
            last report, and instead requires the statement to show the  
            names, addresses, and dates of birth of all persons who have  
            been committed to state prison as a result of the conviction  
            of a felony since the clerk's last report. 
          EXISTING LAW:  
          1)Permits a person who is 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, to register to vote.
          2)Requires the county elections official to cancel the  
            affidavits of registration of those persons who are imprisoned  
            or on parole for the conviction of a felony.
          3)Requires the Legislature to provide for the disqualification  
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            of electors while imprisoned or on parole for the conviction  
            of a felony.
          4)Requires the clerk of the superior court in each county to  
            furnish the chief elections official of the county, not less  
            frequently than the first day of April and the first day of  
            September of each year, with a statement showing the names,  
            addresses, and dates of birth of all persons who have been  
            convicted of felonies since the clerk's last report.
          5)Requires a program adopted by a county that is designed to  
            encourage the registration of electors to print literature and  
            media announcements made in connection with these programs  
            that contain the following statement, "A person entitled to  
            register to vote must be a United States citizen, a California  
            resident, not in prison or on parole for the conviction of a  
            felony, and at least 18 years of age at the time of the  
            election."  Permits a county elections official to continue to  
            use existing materials before printing new or revised  
            materials required by any changes to these provisions.   
          FISCAL EFFECT:  Unknown.  State-mandated local program: contains  
          reimbursement direction.
          COMMENTS:  
          1)Purpose of the Bill:  According to the author:
               The Criminal Justice Realignment Act of 2011 (CJRA)  
               created three new categories of sentencing for people  
               convicted of low-level felonies: mandatory  
               supervision, post-release community supervision, and a  
               term in county jail. These new categories caused  
               confusion for local elections officials and voters.  
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               Last year, in Scott v. Bowen, the issue of the voting  
               rights of people sentenced under the first two  
               categories of local supervision was finalized, and  
               with the support of the Secretary of State, more than  
               50,000 people under mandatory and post-release  
               community supervision had their voting rights  
               restored. 
               AB 2466 amends the Elections Code to reflect the  
               decision in Scott v. Bowen and clarifies that the  
               third category of CJRA sentencing - a term in county  
               jail - likewise does not strip people of their  
               constitutional right to vote. This clarification  
               completes the restoration of the law prior to the  
               CJRA: only those serving a state-prison sentence or on  
               parole and under CDCR supervision lose the right to  
               vote. 
               Finally, civic participation can be a critical  
               component of re-entry and has been linked to reduced  
               recidivism.  No eligible voter should be kept from  
               fulfilling their responsibility and civic duty due to  
               ambiguity in the law.
          2)California Disenfranchisement Laws:  Article II, Section 4 of  
            the California Constitution states that "[the] Legislature  
            shall prohibit improper practices that affect elections and  
            shall provide for the disqualification of electors while  
            mentally incompetent or imprisoned or on parole for the  
            conviction of a felony."  Elections Code Section 2101 is the  
            statute that implements Article II, Section 4 of the  
            California Constitution.  Section 2101 states 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  
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            conviction of a felony, and at least 18 years of age at the  
            time of the next election."  Moreover, under California law,  
            any person who is imprisoned or on parole for the conviction  
            of a felony is prohibited from voting and elections officials  
            are required to cancel the voter registrations of such  
            individuals.  However, a person who is on probation for  
            conviction of a felony is permitted to vote.  While it would  
            seem that the determination of whether an individual is  
            eligible to vote is fairly straightforward, there has been a  
            great deal of confusion about what constitutes being  
            "imprisoned" for the conviction of a felony.
          For instance, it is not uncommon for a person who has been  
            convicted of a felony to be ordered to serve time in county  
            jail as a condition of probation.  To the extent that a person  
            is serving time in county jail as a condition of probation,  
            that person is not considered to be "imprisoned" for the  
            conviction of a felony under California law, and thus, that  
            person remains eligible to vote, even while he or she is in  
            the county jail.
          On the other hand, due to a variety of reasons, a person who has  
            been convicted of a felony and sentenced to serve time in  
            state prison may nonetheless serve part or all of his or her  
            sentence in a county or city jail due to a contractual  
            agreement with the state.  In such a circumstance, that person  
            is not eligible to vote, and the elections official should  
            cancel that person's registration, since he or she is not on  
            probation - but rather has been convicted of a felony and was  
            sentenced to state prison.  The fact that the individual is  
            serving that prison time in a local jail under a contractual  
            arrangement is not relevant in determining whether that person  
            has the ability to register to vote or to vote.
          These interpretations of California's disenfranchisement laws  
            were affirmed by the Court of Appeal for the State of  
            California, First Appellate District, Division One, in League  
            of Women Voters of California v. McPherson (2006), 145  
            Cal.App.4th 1469.  In that case, the court noted that "where a  
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            probationer is ordered to serve time in a local facility  
            because either imposition or execution of sentence has been  
            suspended, he or she has not been imprisoned for the  
            conviction of a felony, but has been confined as a condition  
            of probation."
          3)Criminal Justice Realignment & Inmate Voting Eligibility:  In  
            2011, California passed a series of bills known as the CJRA.   
            Although prior to realignment, some felony sentences were  
            served in county or city jails, most felony sentences were  
            served in state prison.  Under realignment, certain  
            lower-level felony offenders, who would have been sentenced to  
            state prison, are now sentenced to serve their time in custody  
            in county jail.  Additionally, after release from custody and  
            depending on the offense and sentence, realignment changed the  
            state's parole system and created the option for an inmate to  
            be released to a term of "post-release community supervision  
            (PRCS)" (under the control of the local probation department)  
            or mandatory supervision.  Thus, the enactment of the CJRA has  
            caused an even greater deal of confusion and raised questions  
            about the eligibility to vote for convicted felons sentenced  
            to these new programs.  Specifically, the question arose as to  
            whether individuals on PRCS and mandatory supervision were  
            considered "on parole" and whether person serving a felony  
            sentence in county jail were "imprisoned" for the purposes of  
            Section 4, Article II of the California Constitution and  
            Section 2101 of the Elections Code. 
           
             According to court documents, the Secretary of State's (SOS)  
            office, at the request of county elections officials, issued a  
            memorandum on December 5, 2011 which analyzed CJRA and its  
            effect on voter eligibility.  The SOS's office concluded that  
            realignment "does not change the voting status of offenders  
            convicted of CJRA-defined low-level felonies, either because  
            they serve their felony sentences in county jail instead of  
            state prison or because the mandatory supervision that is a  
            condition of their release from prison is labeled something  
            other than 'parole.'  Offenders convicted of CJRA-defined  
            low-level felonies continue to be disqualified from voting  
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            while serving a felony sentence in county jail, while at the  
            discretion of the court serving a concluding portion of that  
            term on county-supervised probation, or while they remain  
            under mandatory 'post release community supervision' after  
            release from state prison."
            Voting rights groups filed a lawsuit against the SOS arguing  
            that realigned individuals have a right to vote.  In March of  
            2012, a lawsuit was filed in the First District Court of  
            Appeal to clarify that people who have been sentenced for  
            low-level, non-violent offenses under the CJRA are entitled to  
            vote in the 2012 elections and beyond (All of Us or None et  
            al. v. Bowen et al. (2012) No. A134775).  On May 17, 2012, the  
            First District Court of Appeal summarily denied the petition,  
            meaning that it refused to hear the case or issue an opinion.   
            In response, petitioners filed another lawsuit in the  
            California Supreme Court to review the case and decide the  
            case on an expedited basis (All of Us or None v. Bowen (2012)  
            No. S202885).  The Supreme Court, which has the discretion to  
            either hear the case, order the Court of Appeal to decide it,  
            or deny review, denied review on July 25, 2012.
            In February of 2014, a lawsuit was filed in the Alameda  
            Superior Court challenging the SOS's memorandum, claiming that  
            individuals on PRCS and mandatory supervision are eligible to  
            vote under Article II, Section 4 of the California  
            Constitution (Scott et al. v. Bowen (2014) No. RG14-712570).
            In May of 2014, the Superior Court issued a final judgment  
            rejecting the interpretation of Realignment in SOS's  
            memorandum. The Superior Court held "as a matter of law that  
            California Constitution Article II, Section 2 and Elections  
            Code 2101, require the State of California to provide all  
            otherwise eligible persons on [mandatory supervision and PRCS]  
            the same right to register to vote and to vote as all  
            otherwise eligible persons."  The court concluded that  
            restoring voting rights of persons under PRCS and or mandatory  
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            supervision is consistent with the Realignment policy goal to  
            promote reintegration of low-level offenders back into the  
            community. In addition, the court relied upon the long-held  
            principle in California law requiring courts "to give every  
            reasonable presumption in favor of the right of people to  
            vote" and to "not engage in any construction of an election  
            law that would disenfranchise any voter if the law is  
            reasonably susceptible of any other meaning." The Superior  
            Court decision, however, did not address the conclusion in  
            SOS's memorandum that persons convicted of a felony and  
            serving time in county jail under Realignment are ineligible  
            to vote.  
            This bill conforms state law to the Superior Court ruling and  
            makes other significant changes to voter eligibility  
            provisions of law.  First, this bill codifies the meaning of  
            the term parole as determined by the Superior Court ruling.   
            Specifically, this bill defines "parole" to mean a term of  
            supervision by the Department of Corrections and  
            Rehabilitation.  
            Secondly, this bill makes changes to Elections Code Section  
            2101, the implementing statute for Article II, Section 4 of  
            the California Constitution that states "[the] Legislature  
            shall prohibit improper practices that affect elections and  
            shall provide for the disqualification of electors while  
            mentally incompetent or imprisoned or on parole for the  
            conviction of a felony."  Specifically, this bill permits a  
            person who is a United States citizen, a resident of  
            California, at least 18 years of age at the time of the next  
            election, and not imprisoned, instead of in prison, or on  
            parole for the conviction of a felony, to register to vote.   
            This bill defines the term "imprisoned" to mean currently  
            serving in a state or federal prison sentence and provides  
            that the term "conviction" does not include a juvenile  
            adjudication made pursuant existing law.  These changes to  
            voter eligibility provisions of law seek to address the  
            questions not discussed in the court ruling of whether a  
            person serving a felony sentence in county jail were  
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            "imprisoned" for purposes of Section 4, Article II of the  
            California Constitution and Section 2101 of the Elections Code  
            and persons convicted of a felony and serving time in county  
            jail under Realignment are ineligible to vote.  
          4)Updated Secretary of State Memorandum:  In June of 2014, the  
            Superior Court issued a writ of mandate ordering the SOS to  
            withdraw the previous memorandum concerning voting rights of  
            persons subject to sentencing under the CJRA and to notify  
            elections officials that it had been withdrawn.  
          In August of 2015, Secretary of State Alex Padilla announced an  
            end to the appeal of Scott v Bowen and complied with the  
            Superior Court decision pursuant to a settlement of the case  
            with the plaintiffs.  In accordance with the writ of mandate,  
            the SOS sent out a new memorandum, which served as  
            notification to elections officials that the previous  
            memorandum had been withdrawn.  Additionally, according to the  
            new memorandum, the SOS also prepared new language for the  
            paper and online affidavit of voter registration and updated  
            the language contained in other voting materials and voter  
            education materials consistent with the Superior Court ruling  
            and settlement. The revised voter materials specify the voting  
            rights of persons subject to two categories of  
            county-supervised non-custodial post-imprisonment release  
            programs under Realignment as follows: 
          Post Release Community Supervision (PRCS): A person  
          released from prison on or after October 1, 2011, for a  
          conviction of a crime defined by Realignment as a low-level  
          felony, and who is released from state prison to  
          county-supervised PRCS, is eligible to register and vote. 
          Mandatory Supervision: At the time a judge sentences a  
          person to county jail for the conviction of a specified  
          low-level felony, Realignment authorizes a judge to order  
          that the person be released and supervised by a probation  
          officer for a specified, concluding portion of the term.  
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          Following release from county jail and during the period of  
          supervision, this person is eligible to register and vote.
          1)Changes to Printed Materials:  Current law requires a program  
            adopted by a county that is designed to encourage the  
            registration of electors to print literature and media  
            announcements made in connection with these programs that  
            contain the following statement, "A person entitled to  
            register to vote must be a United States citizen, a California  
            resident, not in prison or on parole for the conviction of a  
            felony, and at least 18 years of age at the time of the  
            election."  County elections officials are permitted to  
            continue to use existing materials before printing new or  
            revised materials required by any changes to these provisions.  
              
            Existing law also requires the clerk of the superior court in  
            each county to furnish the chief elections official of the  
            county, not less frequently than the first day of April and  
            the first day of September of each year, with a statement  
            showing the names, addresses, and dates of birth of all  
            persons who have been convicted of felonies since the clerk's  
            last report.
            This bill makes changes to these materials.  Specifically,  
            this bill requires the statements included in printed  
            literature and media announcements used in county programs  
            designed to encourage registration of electors to state that a  
            person entitled to register to vote must be a United States  
            citizen, a California resident, not currently in state or  
            federal prison or on state parole for the conviction of a  
            felony, instead of not in prison or on parole for the  
            conviction of a felony, and at least 18 years of age at the  
            time of the election.  Additionally, this bill requires  
            statements sent to county elections officials from the clerk  
            of the superior court to show the names, addresses, and dates  
            of birth of all persons who have been committed to state  
            prison as a result of the conviction of a felony since the  
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            clerk's last report instead of showing the names, addresses,  
            and dates of birth of all persons who have been convicted of  
            felonies since the clerk's last report.
          1)Arguments in Support:  One of the sponsors of this bill,  
            American Civil Liberties Union of California, writes:
               The meaning of the terms "imprisoned" and "parole,"  
               however, has been the subject of ongoing litigation  
               and confusion, particularly as criminal justice  
               reforms and sentencing laws have evolved. Most  
               recently, voter eligibility was the subject of  
               litigation following the passage of the Criminal  
               Justice Realignment Act of 2011 (CJRA), which created  
               three new categories of sentencing for people  
               convicted of low-level felonies: mandatory  
               supervision, post-release community supervision, and a  
               term in county jail.
               While courts have consistently interpreted the  
               constitutional provision in favor of the  
               enfranchisement of voters, California's voter  
               eligibility laws cannot be subject to change,  
               litigation, and clarification every time a sentencing  
               reform is enacted. Elections officials and the  
               Secretary of State need guidance and clarity in order  
               to ensure consistent application of voter eligibility  
               law and accurate maintenance of the voter file.   
               Without clarification, the state is left with the  
               potential for county-by-county interpretations,  
               widespread confusion, and the actual and de facto  
               disenfranchisement of voters.
               AB 2466 would thus amend the Elections Code to codify  
               the recent decision in Scott v. Bowen, ensuring that  
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               more than 50,000 people under mandatory and  
               post-release community supervision can vote. AB 2466  
               also clarifies that the third category of CJRA  
               sentencing - a term in county jail - likewise does not  
               strip people of their right to vote. Finally, AB 2466  
               would clarify the information courts provide to  
               elections officials.
          2)Arguments in Opposition:  In opposition, the California State  
            Sheriff's Association writes:
               Longstanding California law has provided that  
               imprisoned felons are excluded from voting.  The  
               people have consistently determined that by virtue of  
               a felon's crime he or she is temporarily denied the  
               right to participate in elections.  The notion that  
               felons have shown a disregard for the laws and their  
               disobedience should exclude them from political  
               decision-making.
               Unfortunately, AB 2466 disregards this thought process  
               and allows certain incarcerated felons to vote.  This  
               bill "restores" a convicted felon's voting rights if  
               he or she happens to be serving time in a county jail.  
                When Realignment altered where thousands of felons  
               would be housed, it did not change the felony status  
               of their crimes.  A felony is still a felony  
               regardless of where the felon is housed.  As such, to  
               allow the restoration of a convicted felon's voting  
               rights based on his or her custodial location is not  
               only inconsistent but insulting to law-abiding  
               citizens. 
          3)Previous Legislation:  AB 938 (Weber) from 2014, was amended  
            after passing out of Assembly Elections Committee to address a  
            different issue.
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          REGISTERED SUPPORT / OPPOSITION:
          Support
          All of Us or None (co-sponsor)
          American Civil Liberties Union of California (co-sponsor)
          Asian Americans Advancing Justice - California (co-sponsor)
          Lawyers' Committee for Civil Rights of the San Francisco Bay  
          Area (co-sponsor)
          Legal Services for Prisoners with Children (co-sponsor)
          League of Women Voters of California (co-sponsor)
          Mexican American Legal Defense and Educational Fund (co-sponsor)
          Alliance of Californians for Community Empowerment
          Anti-Defamation League
          Brennan Center for Justice
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          California Association of Nonprofits
          California Calls
          California Catholic Conference of Bishops
          California Coalition for Women Prisoners
          California Immigrant Policy Center
          California Public Defenders Association
          Californians for Safety and Justice
          Californians United for a Responsible Budget
          Center on Juvenile and Criminal Justice
          Chinese for Affirmative Action
          Friends Committee on Legislation of California
          Further The Work
          Homeboy Industries
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          Justice Not Jails
          Law Foundation of Silicon Valley
          Mi Familia Vota
          NAACP Legal Defense and Educational Fund, Inc.
          National Council of La Raza
          A New PATH
          PICO California
          Pillars of the Community
          Project Vote
          Public Defender of the City and County of San Francisco Jeff  
          Adachi
          Rock the Vote
          Root & Rebound
          Rubicon Programs
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          San Diego La Raza Lawyers Association
          Voto Latino
          Youth Law Center
          Opposition
          California State Sheriff's Association
          Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094