BILL ANALYSIS                                                                                                                                                                                                    Ó
          SENATE COMMITTEE ON
          ELECTIONS AND CONSTITUTIONAL AMENDMENTS
                              Senator Ben Allen, Chair
                                2015 - 2016  Regular 
          Bill No:             AB 2466        Hearing Date:    6/21/16    
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          |Author:    |Weber                                                |
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          |Version:   |5/3/16                                               |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Frances Tibon Estoista                               |
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                             Subject:  Voting:  felons.
           DIGEST
           
            This bill 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 and makes other  
          significant changes to voter eligibility provisions of law, as  
          specified.
           ANALYSIS
           
          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)Pursuant to the California Constitution, requires the  
            Legislature to provide for the disqualification 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  
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            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.
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          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).
               c)     Provides that "conviction" does not include a  
                 juvenile adjudication made pursuant to 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.
           BACKGROUND
           
           California Disenfranchisement Laws  :  Under existing 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  
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          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 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."
           Criminal Justice Realignment & Inmate Voting Eligibility  :  In  
          2011, California passed a series of bills known as the  
          California Justice Realignment Act (CJRA) of 2011.  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  
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          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 a 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 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  
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          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 the 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 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 the SOS's memorandum that persons convicted of  
          a felony and serving time in county jail under Realignment are  
          ineligible to vote.  
           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  
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          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 probation  
          supervision enacted by 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 for 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.
          Following release from county jail and during the period of  
          supervision, this person is eligible to register and vote.
           COMMENTS
           
           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. 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  
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          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.
                               RELATED/PRIOR LEGISLATION
           
          AB 938 (Weber) as amended on 4/22/13 would have provided that a  
          person loses his or her eligibility to register to vote as the  
          result of being in prison for the conviction of a felony only if  
          the prison where the person is housed is a state or federal  
          prison.  Before being heard by this Committee, the bill was  
          completely gutted and used as a vehicle for another purpose.
          AB 742 (Saldana of 2009) would have required the clerk of the  
          superior court in each county, when furnishing the elections  
          official with a list of persons who have been convicted of  
          felonies, to include only persons who have been sentenced to  
          state prison, instead of including all persons who were  
          convicted of felonies, whether they were sentenced to prison or  
          not.  AB 742 was vetoed by Governor Schwarzenegger.
           PRIOR ACTION
           
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          |Assembly Floor:                       |41 - 37                    |
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          |Assembly Appropriations Committee:    |13 - 6                     |
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          |Assembly Elections and Redistricting  |  5 - 2                    |
          |Committee:                            |                           |
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          POSITIONS
           
          Sponsor: All of Us or None
                   American Civil Liberties Union of California 
                   Asian Americans Advancing Justice- California 
                   League of Women Voters of California 
                   Legal Services for Prisoners with Children 
                   Lawyers' Committee for Civil Rights of the San  
          Francisco Bay Area
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                   Mexican American Legal Defense and Educational Fund
           Support: Alex Padilla, Secretary of State
                   Tom Butt, Mayor, City of Richmond
                    Jeff Adachi, Public Defender of the City and County of  
                   San Francisco
                    A New PATH
                    Alliance of Californians for Community Empowerment
                    Alliance San Diego
                    Anti-Defamation League
                    Anti-Recidivism Coalition
                    Black Women Organized for Political Action
                    Brennan Center for Justice
                    California Association of Clerks and Election  
                   Officials
                    California Association of Nonprofits
                    California Attorneys for Criminal Justice
                    California Calls
                    California Catholic Conference, Inc.
                    California Coalition for Women Prisoners
                    California Immigrant Policy Center
                    California Public Defenders Association
                    California State Conference of the National  
                   Association for the
                      Advancement of Colored People 
                    Californians for Safety and Justice
                    Californians United for a Responsible Budget
                    Center on Juvenile and Criminal Justice 
                    Chinese for Affirmative Action 
                    Contra Costa County Public Defender Association
                    Demos
                    Drug Policy Alliance
                    Ella Baker Center for Human Rights 
                    Friends Committee on Legislation of California 
                    Further the Work
                    Homeboy Industries
                    Justice Not Jails
                    LatinoJustice PRLDEF
                    Law Foundation of Silicon Valley
                    Los Angeles Metropolitan Churches 
                    Mi Familia Vota
                    NAACP Legal Defense and Educational Fund, Inc.
                    NAACP of San Diego
                    National Association of Social Workers, California  
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                   Chapter
                    National Council of La Raza
                    Orange County Re-Entry Partnership
                    PICO California 
                    Pillars of the Community 
                    Project Vote
                    Reentry Success Center
                    Rock the Vote
                    Root & Rebound
                    Rubicon Programs 
                    San Diego Immigrant Rights Consortium
                    San Diego La Raza Lawyers Association
                    Service Employees International Union
                    Voto Latino
                    Youth Law Center
           Oppose:  Association of Deputy District Attorneys
                    Association for Los Angeles Deputy Sheriffs
                    California Correctional Supervisors Organization
                        California Narcotic Officers Association
                        California Police Chiefs Association 
                        California State Sheriffs' Association
                        Los Angeles County Probation Officers Union,  
          AFSCME, Local 685
                        Los Angeles Professional Peace Officers  
          Association
                        Los Angeles Police Protective League
                        Riverside Sheriffs' Association
                                          
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