BILL ANALYSIS Ó
SB 1094
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Date of Hearing: June 29, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
SB
1094 (Hernandez) - As Amended June 15, 2016
SENATE VOTE: 25-14
SUBJECT: Initiatives: petition circulators.
SUMMARY: Makes numerous significant changes to provisions of
state law governing state initiatives. Specifically, this bill:
1)Requires at least 10 percent of the signatures collected to
qualify a proposed state initiative measure for the ballot to
be collected by individuals who did not receive money or other
valuable consideration exclusively or primarily for the
specific purpose of soliciting signatures of electors on the
petition, as specified ("10 percent requirement").
a) Provides that signatures on a petition qualify toward
meeting the 10 percent requirement if they are collected by
a person who is an employee or member of a non-profit
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
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measure, unless a primary purpose of that employment or
membership is to solicit signatures on an initiative
petition. Defines "member" for the purposes of this
provision.
b) Provides that signatures solicited by registered voters
or employees of a political party who receive money or
other valuable consideration from the political party for
soliciting signatures on an initiative petition do not
qualify toward meeting the 10 percent requirement.
c) Provides that signatures solicited through direct mail
do not count towards the 10 percent requirement unless the
person soliciting the signatures through direct mail, and
any other person who organizes, pays, or arranges for the
direct mail, is eligible to solicit signatures that qualify
toward meeting the 10 percent requirement, as described
above. Provides that this provision shall not preclude an
organization that has a primary purpose other than
soliciting signatures on initiative petitions from
soliciting signatures from its members through direct mail
and relying on those signatures for the purposes of
satisfying the 10 percent requirement.
d) Provides that nothing in this bill shall be construed to
preclude signatures that are solicited by a person who
receives nominal, non-monetary benefits, including food,
transportation, or lodging, from qualifying toward meeting
the 10 percent requirement.
e) Requires verification of a petition that contains a
declaration pursuant to the provisions of this bill to be
prima facie evidence that the signatures satisfy the 10
percent requirement.
f) Specifies that if a qualified voter signs a petition for
an initiative both on the petition section that qualifies
for meeting the 10 percent requirement and on a petition
section that does not qualify for meeting the 10 percent
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requirement, the voter's signature on the petition that
meets the 10 percent requirement shall count, and other
signature shall not.
g) Prohibits a person who receives money or other valuable
consideration for the specific purpose of soliciting
signatures on a state initiative petition from circulating
a petition to collect signatures that qualify towards the
10 percent requirement for the same initiative measure.
2)Requires a petition for a proposed state initiative measure
that is circulated by a person such that it will qualify
toward meeting the 10 percent requirement to be printed on
white paper in a contrasting color ink and to include the
following notice printed in 12-point boldface type immediately
prior to the portion of the petition for voters' signatures:
"NOTICE TO THE PUBLIC: THIS PETITION IS BEING CIRCULATED BY
A VOLUNTEER OR AN EMPLOYEE OF A NONPROFIT ORGANIZATION.
YOU ARE ENCOURAGED TO READ THE CONTENTS OF THIS PETITION
BEFORE SIGNING."
3)Requires a petition for a proposed state initiative measure
that is circulated by a person such that it will not qualify
toward meeting the 10 percent requirement to be printed on
paper of a color other than white in a contrasting color ink
and to include the following notice printed in 12-point
boldface type immediately prior to the portion of the petition
for voters' signatures:
"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."
4)Requires the circulating title and summary prepared by the
Attorney General (AG) to be placed on the first page of each
section of the petition in the one-inch space across the top
of the page in 18-point roman boldface type.
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5)Requires a person who solicits signatures on a petition that
qualify toward meeting the 10 percent requirement to sign an
affidavit that declares all of the following:
a) That the person did not receive money or other valuable
consideration for the specific purpose of soliciting
signatures of electors pursuant to the requirements of this
bill; and,
b) That 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 percent requirement.
6)Makes corresponding changes to the process for elections
officials to verify signatures submitted on a state initiative
petition. Increases the number of days that elections
officials have to count and verify signatures on state
initiative petitions, as specified. Requires the Secretary of
State (SOS) to adopt regulations consistent with these
provisions and permits the initial regulations to be adopted
as emergency regulations.
7)Provides that the signatures on a state initiative petition
section are invalid if they are solicited and submitted by a
person who engages in intentional fraud, misrepresentation, or
other illegal conduct concerning the circulation of the
petition, as specified. Provides that the SOS, the AG, any
district attorney, or any city attorney of a city having a
population in excess of 750,000, may enforce this provision by
a civil action in which the plaintiff has the burden of
showing a violation by clear and convincing evidence.
Prohibits a petition section from being invalidated after the
SOS has certified that the measure has qualified for the
ballot. Requires the local elections official, if he or she
is notified of or discovers any conduct described above, to
promptly notify the SOS. Provides that a local elections
official who is notified of or discovers any conduct described
above, is not permitted to refuse to examine or to stop the
examination of the petition or petition sections.
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8)Provides that the provisions of this bill do not apply to any
initiative measure for which the AG issues a circulating title
and summary before January 1, 2017.
9)Makes various findings and declarations about the initiative
process and the influence that special interests and paid
circulators have on that process.
10)Makes other clarifying, corresponding, and technical changes.
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 that a state 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 a paid gatherer or
volunteer.
3)Establishes penalties for fraudulent activity related to
signature gathering.
FISCAL EFFECT: According to the Senate Appropriations
Committee, the SOS indicates that it would incur one-time costs
of $55,000 to revise regulations (General Fund).
COMMENTS:
1)Purpose of the Bill: According to the author:
The initiative system in California was originally
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intended as a means to ease the concern about the
growing influence that monied interests, most notably
the railroads, had on the legislative process. Thus
the initiative system was established as a means of
giving power back to the California voters. In recent
years, however, this process has become increasingly
dominated by corporations and wealthy individuals
pushing narrower agendas. For numerous measures,
volunteers and/or grassroots support are nowhere to be
found. The initiative process has become exactly what
the process aimed to combat. In many instances, nearly
every signature is gathered by paid circulators,
earning a fixed amount per signature, with little or
no interest in the issue at hand. This may lead to
abbreviated, simplistic explanations of the
initiative, or in the worst cases, fraud and deception
on the part of the circulator. Currently, initiatives
can qualify using solely paid circulators, making
volunteers and genuine grassroots support for causes
unnecessary, thus granting wealthy individuals and
corporations unfettered access to the ballot. In such
a system, money, not the quality or wisdom of a
proposed policy, is the deciding factor when
qualifying a measure for the ballot. In short, the
system has devolved into the exact opposite of what
Governor Hiram Johnson intended to create over 100
years ago. Although voter registration for eligible
adults has remained steady since 2000, general and
primary election turnout has plummeted since the high
point in 2008. Allowing monied interests unchecked
access to the ballots often results in long and
confusing ballots, which can discourage voters and be
a contributing factor to record low turnouts. In fact,
lack of interest is a main reason cited for not
voting. Requiring broad-based support for ballot
measures will take steps to reignite public interest
in the voting process, while drastically reducing the
number of issues a voter must be informed on. Passing
SB 1094 will be the first step to returning our
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initiative process to the people.
2)10 Percent Signature Requirement: Under the provisions of
this bill, in order for a state initiative measure to qualify
for the ballot, at least 10 percent of the signatures gathered
on the petition for that measure would have to be collected on
petition sections that were circulated 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. This "10 percent
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 percent requirement, the language of the bill
does not require the signatures to be gathered by volunteers
in order to qualify to meet the 10 percent requirement.
Instead, in certain circumstances, signatures collected by
individuals who were paid for their time could count toward
meeting the 10 percent 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 10 percent requirement if they are
collected by 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 percent 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 10
percent requirement. Additionally, signatures solicited by
direct mail would count toward the 10 percent requirement if
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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 percent
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 percent requirement in this
bill is distinguishable from the law struck down in Meyer.
Unlike the law considered by the court in Meyer, the 10
percent requirement in this bill does not apply to all
signatures gathered to qualify a measure for the ballot, but
only a small portion of the signatures. Furthermore, the
signatures that are gathered to meet that 10 percent
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 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
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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 a petition
section are invalid if the signatures were solicited and
submitted by a person who intentionally 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 district
attorney, or a city attorney would have to file a civil
action, and would have the burden of showing a violation by
clear and convincing evidence, as specified.
4)Signature Verification: This bill makes corresponding changes
to the process for elections officials to count and verify
signatures submitted on a state initiative petition to reflect
the 10 percent requirement. Under current law, elections
officials are required to count and verify signatures on
petitions within certain timeframes. While this bill
increases the number of days elections officials have to count
and verify signatures on state initiative petitions, as
specified, will the increase be sufficient? This year an
unprecedented number of state ballot measures have been
introduced in an effort to be eligible for the November
general election. At the time of writing this analysis,
currently there are six state ballot measures eligible for the
November general election and eight more pending signature
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verification with county elections officials.
5)Arguments in Support: In support, the California School
Employees Association writes:
In recent years?the process for gathering enough
signatures required for a ballot measure has
increasingly been dominated by corporations and
wealthy individuals pushing specialized and narrow
interests.
Today, bands of paid signature gathers are hired to
circulate petitions among the public. Often times
these paid circulators live in other states and
receive a fixed amount of money for each signature
gathered, ranging from $1 to over $5 per signature.
This lack of genuine connection to the community may
lead to over-simplified explanations of initiatives,
or in the worst case, fraud or deception on the part
of the circulator.
This bill still allows for the use of paid signature
circulators, but requires at least [10%] of signatures
gathered to be obtained by volunteer efforts in order
to qualify for the ballot. This threshold will ensure
that measures which make the ballot truly possess
widespread grassroots support and have a stronger
nexus to the will of the electorate. Also, this bill
will create stronger penalties against fraud and
misrepresentation when petitions are circulated to
protect the integrity of the initiative process.
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6)Arguments in Opposition: In opposition, the Howard Jarvis
Taxpayers Association writes:
This bill undermines the People's reserved power of
initiative by advantaging certain special interests to
the detriment of California voters who seek to
preserve the last best hope the state has for reform.
SB 1094 states that an initiative measure must contain
at least 10 percent non-paid signatures. This
represents an arbitrary threshold that will be
challenging for entities not coordinating with
non-profits to accomplish, and may well be
unconstitutional. In addition, singling out
non-profits through a host of loopholes (including
unions) and allowing them to be exempted from the
above requirements puts government in a position of
playing politics at the ballot box and is not sound
public policy.
7)Previous Legislation: AB 857 (Fong) of 2013, would have made
numerous significant changes to provisions of state law
governing state initiatives similar to those proposed by this
bill. AB 857 was vetoed by Governor Brown. In his veto
message the Governor stated that "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."
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REGISTERED SUPPORT / OPPOSITION:
Support
California Labor Federation (co-sponsor)
California Professional Firefighters (co-sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
California Faculty Association
California School Employees Association
California State Council of the Service Employees International
Union
Courage Campaign
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Equality California
Secretary of State Alex Padilla
Opposition
Howard Jarvis Taxpayers Association
Analysis Prepared by:Nichole Becker / E. & R. / (916)
319-2094