BILL ANALYSIS Ó
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: SB 1094 Hearing Date: 4/19/16
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|Author: |Hernandez |
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|Version: |4/7/16 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Frances Tibon Estoista |
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Subject: Initiatives: petition circulators
DIGEST
This bill makes numerous significant changes to provisions of
state law governing initiatives.
ANALYSIS
Existing law:
1) Allows electors to propose statutes and amendments to the
Constitution and to adopt or reject them through the
initiative process.
2) Requires every state or local initiative petition contain a
notice alerting voters that the petition may be circulated by
a paid signature gatherer or a volunteer and that voters have
the right to ask if a petition circulator is paid or is a
volunteer.
3) Provides instruction on how to file petitions and provides
elections officials with instructions for the examination of
signatures, as well as procedures for the certification and
full check of petition signatures.
4) Establishes penalties for fraudulent activity related to
signature gathering.
This bill:
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1) Requires at least 15% of the signatures necessary to qualify
an initiative measure be solicited by a person who does not
receive money or other valuable consideration exclusively or
primarily for the specific purpose of soliciting signatures
of electors on the petition as specified.
2) Provides that a person who is an employee or member of a
nonprofit organization, other than an organization with the
primary purpose of soliciting signatures on initiative
petitions, who receives money or other valuable consideration
from the organization and as part of that employment or
membership solicits signatures for the qualification of an
initiative measure shall be deemed to be a person who, for
purposes of satisfying the 15% requirement, does not receive
money or other valuable consideration for the specific
purpose of soliciting signatures of electors, unless the
primary purpose of that employment or membership is to
solicit signatures on an initiative petition.
3) Defines "member" for this purpose to mean any of the
following:
a) A person who, pursuant to a specific provision of an
organization's articles of incorporation or bylaws, has
the right to vote directly or indirectly for the election
of a director or directors, or an officer or officers, or
on a disposition of all or substantially all of the assets
of the organization, or on a merger or a dissolution.
b) A person who is designated in an organization's
articles of incorporation or bylaws as a member and,
pursuant to a specific provision of the articles of
incorporation or bylaws, has the right to vote on changes
to the articles of incorporation or bylaws.
c) A person who pays or has paid membership dues in an
amount predetermined by the organization, provided the
organization is tax exempt under Section 501(c) of the
Internal Revenue Code.
d) A member of a union. Defined as a member of any
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national or international union of which the local union
is a part and of any federation with which the local,
national, or international union is affiliated.
e) For these purposes, a person is not a member of a
nonprofit organization solely by virtue of being on a
mailing or contact list of the organization.
1) Requires for this purpose, that when determining whether
an organization, or a member or employee of an organization,
has the primary purpose of soliciting signatures on an
initiative petition, the totality of the circumstances, as
defined, shall be considered.
2) Provides that signatures solicited by registered voters
of, or employees of a political party or political party
committee, who receive money or other valuable consideration
from the political party or political party committee for
soliciting signatures on an initiative petition do not count
toward satisfying the 15% requirement.
3) Provides that signatures solicited through direct mail do
not count towards the number of signatures needed to satisfy
the 15% requirement if the person soliciting the signatures
through direct mail, or any other person who organizes, pays
for, or arranges for the direct mail, receives money or
other valuable consideration primarily for the purpose of
soliciting signatures of electors, unless the person is an
employee or member of a nonprofit organization as described
above.
4) Provides that this provision not preclude an organization
that has a primary purpose other than soliciting signatures
on initiative petitions from soliciting signatures from the
organization's members through direct mail and relying on
those signatures for purposes of satisfying the 15%
requirement.
5) Provides that a petition that contains a "volunteer's"
declaration shall be prima facie evidence that the
signatures thereon satisfy the 15% requirement.
6) Provides that nominal benefits other than money, such as
food, transportation or lodging, do not preclude that
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individual from soliciting signatures toward the 15%
requirement.
7) Provides for purposes of verifying signatures under
existing law and the procedures set forth by the Secretary
of State (SOS), if the signature of a qualified voter
appears once on a petition or section of a petition
submitted to satisfy the 15% requirement, and the same
voter's signature appears on a petition or section of a
petition that does not, the qualified voter's signature
shall only be counted once and shall be counted towards
satisfying the 15% requirement.
8) Requires the circulating title prepared by the Attorney
General (AG) be in 18-point roman boldface type, and placed
in the one-inch space across the top of the first page on
each section of the petition.
9) Requires a petition for a proposed initiative measure that
is circulated by a volunteer, be printed on white paper in a
contrasting color ink, and requires a petition for a
proposed initiative measure that is circulated by a paid
circulator be printed on paper of a color other than white
in a contrasting color ink.
10) Requires a petition for a proposed initiative measure that
is circulated by a paid circulator, to include the following
statement immediately prior to the portion of the petition
for voters' signatures, printed names, and residence
addresses, printed in 12-point boldface type:
"NOTICE TO THE PUBLIC: THIS PETITION IS BEING CIRCULATED BY
A PERSON PAID TO OBTAIN YOUR SIGNATURE. YOU ARE ENCOURAGED
TO READ THE CONTENTS OF THIS PETITION BEFORE SIGNING."
11) Provides in addition to the information required in the
existing declaration of a circulator, a volunteer circulator
must declare all of the following:
a) The person does not receive money or other valuable
consideration for soliciting signatures of electors.
b) To the best of his or her knowledge, the signatures
on the petition sections circulated by him or her should
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be counted towards the 15% requirement.
1) Provides that an initiative petition section is invalid if
the signatures are solicited and submitted by a person who
intentionally engages in fraud, misrepresentation, or any
other improper signature-gathering behavior, or by a person
who falsely claims to have not received money or other
valuable consideration for the specific purpose of
soliciting signatures of electors as defined.
2) Allows the SOS, the AG, a district attorney, a city
attorney of a city with a population greater than 750,000,
or any elector to enforce this provision by a civil action
in which the plaintiff has the burden of showing a violation
by clear and convincing evidence. The signatures on a
petition section shall be invalidated only upon a showing,
by clear and convincing evidence, that the person who
solicited or obtained the signatures did so through
intentional fraud, misrepresentation, or other illegal
conduct, or that the person falsely claimed to have not
received money or other valuable consideration for the
specific purpose of soliciting signatures of electors. Any
civil action brought pursuant to a violation shall have
priority over all other civil matters.
3) Prohibits a petition section from being invalidated after
the SOS has certified that the measure has qualified for the
ballot.
4) Requires that if an elections official is notified of or
discovers any illegal conduct of a person circulating a
petition, he or she must notify the SOS immediately but does
not permit the local elections official to refuse to examine
or to stop the examination of the petition or petition
sections.
5) Makes multiple corresponding changes to the process for
elections officials to verify signatures submitted on a
state initiative petition.
6) Provides local election officials with two additional days
beyond the current eight day requirement to determine the
total number of signatures affixed to a petition, and in the
case of an initiative petition, the total number of
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signatures submitted to satisfy the 15% requirement. Also
provides election officials with an additional five days
beyond the current 30 day requirement to determine that a
petition has received a sufficient number of qualified
voter's signatures and signatures that satisfy the 15%
requirement.
7) Requires the SOS to adopt emergency regulations pursuant
to the provisions of this bill.
8) Makes various findings and declarations about the
initiative process and the influence that special interests
and paid circulators have on that process.
9) Provides that the provisions of this bill do not apply to
an initiative petition for which the AG issued a circulating
title and summary before January 1, 2017.
10) Provides that specified provisions of the bill become
operative only if the SOS certifies that the state has a
statewide voter registration database that complies with the
requirements of the federal Help America Vote Act of 2002
(52 U.S.C. Sec. 20901 et seq.).
11) Makes other minor, corresponding, clarifying, and
technical changes.
BACKGROUND
The initiative is the power of the people of California to
propose statutes and to propose amendments to the California
Constitution. Generally, any matter that is a proper subject of
legislation can become an initiative measure; however, no
initiative measure addressing more than one subject area may be
submitted to the voters or have any effect. An initiative
measure is placed on the ballot after its proponents
successfully satisfy the requirements prescribed by law.
COMMENTS
1) According to the author : The initiative system in
California was established to empower the average
Californian. But in recent years, this process has been
increasingly dominated by corporations and wealthy
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individuals pushing narrower agendas. For these
corporate-backed measures, volunteers and/or grassroots
support are nowhere to be found. Nearly every signature is
gathered by paid circulators with little or no interest in
the issue at hand, and often these circulators reside in
other states. In addition, paid circulators almost always
earn a fixed amount per signature. This may lead to
abbreviated, simplistic explanations of the initiative, or
in the worst cases, fraud and deception on the part of the
circulator. Now that initiatives can qualify using only
paid circulators, and volunteers and genuine grassroots
support are unnecessary, wealthy individuals and
corporations enjoy unfettered access to the ballot. Often
money, not the quality or wisdom of a proposed policy, is
the deciding factor. In short, the system has devolved into
the exact opposite of what Governor Hiram Johnson intended
to create over 100 years ago.
2) 15% Signature Requirement : Under the provisions of this
bill, in order for a state initiative measure to qualify for
the ballot, at least 15% of the signatures gathered on the
petition for that measure would have to be collected by a
person who does not receive money or other valuable
consideration exclusively or primarily for the specific
purpose of soliciting signatures, as specified. This "15%
requirement" does not apply to state referendum or recall
petitions, nor does it apply to local initiatives,
referenda, or recalls.
While signatures collected by volunteers will count toward
meeting this 15% requirement, the language of the bill does
not require the signatures to be gathered by volunteers in
order to qualify to meet the requirement. Instead, in
certain circumstances, signatures collected by individuals
who were paid for their time could count toward meeting the
requirement provided that the person wasn't paid exclusively
or primarily for the specific purpose of soliciting
signatures. This bill provides that signatures will count
toward the 15% requirement if they are collected by a member
of a union, employees and members of nonprofit organizations
who receive compensation from that organization and solicit
signatures as a part of their employment or membership, as
long as the nonprofit organization is not primarily focused
on soliciting signatures on petitions.
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In the case of signatures solicited by direct mail, those
signatures would apply toward the 15% requirement if the
person soliciting the signatures through direct mail and all
persons that organize, pay for, and arrange the direct mail
are persons who were eligible to solicit signatures that
counted toward the requirement. Additionally, signatures
solicited by direct mail would count toward the 15%
requirement if they are collected by an organization that is
soliciting signatures through direct mail from its members,
as long as the organization has a primary purpose other than
collecting signatures.
In 1988, the United States Supreme Court ruled that a
Colorado prohibition against the use of paid circulators for
initiative petitions violated the First Amendment's
guarantee of free speech. Writing for a unanimous court,
Justice Stevens noted that "[t]he State's interest in
protecting the integrity of the initiative process does not
justify the prohibition because the State has failed to
demonstrate that it is necessary to burden appellees'
ability to communicate their message in order to meet its
concerns." Meyer v. Grant (1988), 486 U.S. 414. It could
be argued that the 15% requirement imposed by this bill
could be susceptible to a court challenge in light of the
United States Supreme Court's ruling in Meyer. However, the
15% requirement in this bill is distinguishable from the law
struck down in Meyer in a number of different ways.
Unlike the law considered by the court in Meyer, the 15%
requirement in this bill does not apply to all signatures
gathered to qualify a measure for the ballot, but only a
portion of the signatures. Furthermore, as discussed above,
the signatures that are gathered to meet that requirement do
not necessarily have to be collected by individuals who are
unpaid if they are gathered by members and employees of a
nonprofit organization in furtherance of that nonprofit's
objectives.
3) Invalidation of Signatures : Existing law generally is
silent on the issue of whether violations of state law
prohibiting improper signature-gathering tactics will result
in the signatures on those petitions being invalidated. In
at least one case, however, a court invalidated signatures
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gathered to qualify an initiative for the ballot due to
improper signature-gathering tactics by the proponents of
the measure. In San Francisco Forty-Niners v. Nishioka
(1999), 75 Cal.App.4th 637, the California Court of Appeals
for the First District, Division One, prohibited an
initiative measure from appearing on the ballot because the
initiative petition included false statements intended to
mislead voters, in violation of Section 18600 of the
Elections Code. In this case, the false statements appeared
on the text of the petition itself. As a result, every
person who was asked to sign the petition was exposed to
these false statements that were intended to mislead voters.
In a case where petition circulators make false or misleading
statements about a proposed ballot measure, or engage in
other illegal signature-gathering tactics in an attempt to
get voters to sign a petition, it is unclear whether that
misconduct can result in signatures being invalidated.
Committee staff is not aware of any court cases that have
addressed this issue.
This bill explicitly provides that signatures on an initiative
petition section shall be deemed invalid if the signatures
were solicited and submitted by a person who engages in
fraud, misrepresentation, or other improper
signature-gathering tactics, as specified. In order for
signatures to be invalidated under this provision, the SOS,
the AG, a DA, city attorney of a city with a population over
750,000 or any elector would have to file a civil action,
and would have the burden of showing a violation by clear
and convincing evidence.
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4) What's Good for the Goose? This bill requires a petition
for a proposed initiative measure that is circulated by a
paid circulator, to include a statement encouraging voters
to read the contents before signing. While laudable,
shouldn't voters be encouraged to read the contents of any
and all petitions before they sign, regardless of who is
circulating the petition?
RELATED/PRIOR LEGISLATION
AB 857 (Fong of 2013) was substantially similar to this bill,
but was vetoed by the Governor. In his veto message the
Governor stated:
"The initiative process is far from perfect and monied
interests have historically manipulated it at will.
Nevertheless, fixing the system is not easy.
Requiring a specific threshold of signatures to be gathered
by volunteers will not stop abuses by narrow special
interests - particularly if "volunteer" is defined with the
broad exemptions as in this bill.
Efforts to make the system fairer and more reflective of
sound government should be considered. But this measure
falls short of returning to the citizen-driven system
originally envisioned in 1911."
POSITIONS
Sponsor: California Labor Federation (Co-sponsor)
California Professional Firefighters (Co-sponsor)
Support: None received
Oppose: Howard Jarvis Taxpayers Association
-- END --
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