BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1094|
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THIRD READING
Bill No: SB 1094
Author: Hernandez (D)
Amended: 5/31/16
Vote: 21
SENATE ELECTIONS & C.A. COMMITTEE: 4-1, 4/19/16
AYES: Allen, Hancock, Hertzberg, Liu
NOES: Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SUBJECT: Initiatives: petition circulators
SOURCE: California Labor Federation
California Professional Firefighters
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. Requires every state or local initiative
petition contain a notice alerting voters that the petition
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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.
2) 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.
3) Establishes penalties for fraudulent activity related to
signature gathering.
This bill:
1) Requires at least 10% 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 10% 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:
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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
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.
4) 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.
5) Provides that signatures solicited by registered voters of,
or employees of a political party or political party
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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 10% requirement.
6) Provides that signatures solicited through direct mail do
not count towards the number of signatures needed to satisfy
the 10% 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.
7) 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 10%
requirement.
8) Provides that a petition that contains a "volunteer's"
declaration shall be prima facie evidence that the signatures
thereon satisfy the 10% requirement.
9) Provides that nominal benefits other than money, such as
food, transportation or lodging, do not preclude that
individual from soliciting signatures toward the 10%
requirement.
10)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
10% requirement, and the same voter's signature appears on a
petition or section of a petition that does not, the
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qualified voter's signature shall only be counted once and
shall be counted towards satisfying the 10% requirement.
11)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.
12)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.
13)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."
14)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 be
counted towards the 10% requirement.
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15)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.
16)Allows the SOS, the AG, a district attorney, or a city
attorney of a city with a population greater than 750,000 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.
17)Prohibits a petition section from being invalidated after
the SOS has certified that the measure has qualified for the
ballot. Requires the SOS to adopt emergency regulations
pursuant to the provisions of this bill.
18)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.
19)Makes multiple corresponding changes to the process for
elections officials to verify signatures submitted on a state
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initiative petition. 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 signatures submitted to satisfy the 10%
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
10% requirement.
20)Makes various findings and declarations about the initiative
process and the influence that special interests and paid
circulators have on that process.
21)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.
22)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.). 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
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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
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."
2) 10% Signature Requirement. Under the provisions of this
bill, in order for a state initiative measure to qualify for
the ballot, at least 10% 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 "10%
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 10% requirement, the language of this 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
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or primarily for the specific purpose of soliciting
signatures. This bill provides that signatures will count
toward the 10% 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. In the case of
signatures solicited by direct mail, those signatures would
apply toward the 10% 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 10% 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 10%
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 10% 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 10% 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
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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
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.
Related/Prior Legislation
AB 857 (Fong, 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
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considered. But this measure falls short of returning to the
citizen-driven system originally envisioned in 1911."
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee, the Office of
the SOS indicates that it would incur one-time costs of $55,000
to revise regulations (General Fund).
SUPPORT: (Verified5/27/16)
California Labor Federation (co-source)
California Professional Firefighters (co-source)
California School Employees Association
California State Council of the Service Employees International
Union
Courage Campaign
Equality California
OPPOSITION: (Verified5/27/16)
Howard Jarvis Taxpayers Association
Prepared by:Frances Tibon Estoista / E. & C.A. / (916) 651-4106
5/31/16 22:09:24
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