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