BILL ANALYSIS
AB 2946
Page 1
Date of Hearing: April 18, 2006
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Tom Umberg, Chair
AB 2946 (Leno) - As Amended: April 5, 2006
SUBJECT : Initiative petitions: notice.
SUMMARY : Makes various significant and substantive changes to
the initiative process. Specifically, this bill :
1)Requires that an initiative, referendum, or recall petition
circulated by a paid circulator contain the phrase "PAID
CIRCULATOR" in 24-point type, followed by the following
language in 12-point type:
"NOTICE TO THE PUBLIC: THIS PETITION IS BEING CIRCULATED
BY A PERSON WHO IS BEING PAID TO COLLECT SIGNATURES."
2)Requires that an initiative, referendum, or recall petition
circulated by a volunteer contain the phrase "VOLUNTEER
CIRCULATOR" in 24-point type, followed by the following
language in 12-point type:
"NOTICE TO THE PUBLIC: THIS PETITION IS BEING CIRCULATED
BY A VOLUNTEER."
3)Defines "paid circulator," for the purposes of this bill, as a
person who is compensated in any manner for collecting
petition signatures to qualify a state or local initiative,
referendum, or recall measure.
4)Defines "volunteer," for the purposes of this bill, as a
person who is not a paid circulator.
5)Makes it a misdemeanor for a person to pay or receive money or
any other thing of value based on the number of signatures
obtained on a state or local initiative, referendum, or recall
petition, or to assist with voter registration or the
distribution of absentee ballot applications. Provides that
this prohibition shall not be construed to prohibit payment
for signature gathering that is not based on the number of
signatures obtained.
6)Provides that any signatures collected in violation of any
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section of the Elections Code shall be invalid and shall not
count towards qualification of the initiative, referendum or
recall. Prohibits the doctrine of substantial compliance from
being used by any elections official or court to excuse a
violation of the Elections Code, except for non-substantive
grammatical and spelling errors.
7)Permits any state initiative or referendum proponent to submit
a petition to the Attorney General (AG) for approval prior to
circulation of the petition. Requires the AG to notify the
proponent within 10 days of whether or not the petition
complies with the requirements of the Elections Code.
Provides that if the AG determines that the petition does not
comply, he or she shall notify the proponents as to why the
petition does not comply and allow the proponent to submit a
corrected petition for approval.
8)Requires a state or local initiative, referendum, or recall
petition that is circulated by a paid circulator who is paid
by a committee to include, in 12-point type at the top of the
petition, a disclosure statement identifying the names of the
persons from whom the committee received the three largest
cumulative contributions. Requires the disclosure statement
to include, in addition to the name of the person, the nature
of the person's business interests. Requires, for committees,
the disclosure statement to identify the persons and the
nature of their business interests from whom the committee
received the two largest cumulative contributions in excess of
$10,000. Requires the disclosure statement to be updated
within 14 days of any change in the three largest cumulative
contributors. Provides that if more than three donors meet
the disclosure threshold at identical contribution levels, the
three highest donations shall be disclosed according to
chronological sequence beginning with the most recent
contribution. Requires a committee that employs one or more
paid circulators to submit the disclosure statement and any
updates to the statement to the Secretary of State (SOS) for
inclusion on the SOS's Internet Web site.
9)Requires any committee that employs one or more paid
circulators to circulate an initiative, referendum, or recall
petition to print on the petition its name and to identify
itself using a name or phrase that clearly identifies the
economic or other special interest of its major donors of
$50,000 or more. Provides that if the major donors share a
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common employer, the identity of the employer shall be
disclosed.
10)Defines "cumulative contributions," for the purposes of this
bill, as the cumulative amount of contributions received by a
committee beginning 12 months prior to the date the committee
made its first expenditure to qualify or support the measure.
11)Defines "nature of the individual's business interest," for
the purposes of this bill, as a term or words which accurately
describe the person's principle business activity, source of
income or activity.
12)Provides that a local elections official shall not be
required to verify the accuracy of any of the information
required to be disclosed on the petition, and shall not be
required to re-approve any petition that is updated to reflect
a change in the largest cumulative contributors.
13)Provides that if a chief proponent of a statewide initiative
or referendum petition has knowledge of a violation of any
provision of state law relating to the conduct of an election
committed by a person obtaining signatures on the chief
proponent's petition, the violation by the person obtaining
signatures shall be conclusively considered a violation by the
chief proponent. Provides that if a statewide initiative or
referendum petition has more than one chief proponent, no more
than one chief petitioner shall be held liable.
14)Requires the ballot title and summary prepared by the AG to
be stated in complete sentences and written such that the
average voter will easily understand the purpose of the
measure.
15)Requires the ballot label prepared by the AG to be stated in
complete sentences and written such that the average voter
will easily understand the purpose of the measure.
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EXISTING LAW :
1)Requires that any state or local initiative petition contain a
statement notifying voters of their right to inquire whether
the petition is being circulated by a paid signature gatherer
or a volunteer.
2)Defines "committee" as a person or combination of persons who
directly or indirectly does any of the following:
a) Receives contributions totaling $1,000 or more in a
calendar year;
b) Makes independent expenditures totaling $1,000 or more
in a calendar year; or,
c) Makes contributions totaling $10,000 or more in a
calendar year to or at the behest of candidates or
committees.
3)Requires that a 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 a paid gatherer
or volunteer.
4)Requires any person who accepts money or other valuable
consideration in return for assisting with voter registration
to sign and affix on the voter registration form his or her
full name, telephone number, address, and the name and phone
number of the person, company, or organization, if any, that
agrees to pay money or valuable consideration for the
completed affidavit of registration.
5)Requires any person, company, or other organization that
agrees to pay money or other valuable consideration to a
person for assisting with voter registration to maintain
specific records.
6)Requires a petition circulator to declare, under penalty of
perjury, that the circulator witnessed the petition's
signatures being written and that according to the best
information available to and belief of the circulator, each
signature is the genuine signature of the person whose name it
purports to be.
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7)Establishes penalties for fraudulent activity related to
signature gathering and voter registration.
FISCAL EFFECT : Unknown. State-mandated local program;
contains a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
The initiative process is in desperate need of reform.
Recent times have seen an increase in the amount and
complexity of petitions being circulated throughout the
state. The public is oftentimes asked to sign petitions to
qualify initiatives they know nothing about. Frequently,
signature gatherers are paid per signature. This creates
an incentive to lie or mislead the public as to what they
are really signing. Furthermore, when signature gatherers
are prosecuted for violations of the law, those who paid
them, trained them, and encouraged them to use deception
and fraud are not held responsible.
Many signature gatherers are paid; some are volunteers.
However, nothing in current law requires a signature
gatherer to disclose which category he or she falls into.
This information proves useful when trying to determine the
signature gatherer's motivation and understanding of an
initiative. Additionally, when a voter is asked to sign a
petition, he or she cannot see which individuals or
organizations are funding the initiative. This leaves the
voter vulnerable to a situation in which they have signed a
petition funded by entities they may not agree with.
2)Arguments in Support : According to the California Labor
Federation, AFL-CIO, the sponsor of this bill:
The initiative process is in desperate need of reform. The
public is often asked to sign petitions to qualify
initiatives they know nothing about. Signature-gatherers
frequently misrepresent the nature of the initiative
because they are paid per-signature, creating an incentive
to lie or withhold information to obtain additional
signatures. Even when signature-gatherers are prosecuted
for violations of election law, those who paid them,
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trained them, and encouraged them to use deception and
fraud are not held responsible. . .
States around the county have concluded that their
initiative processes must be reformed. Several states have
banned the practice of paying signature-gatherers by the
signature, and ten states already require
signature-gatherers to disclose whether they are paid or
volunteer. Oregon has already implemented the joint
liability for violations of the election law and has used
that law to investigate the unlawful practices of
signature-gathering firms. The time has come for
California to embrace these reforms, which will result in a
more transparent system, a more sound electoral process,
and a more engaged public.
3)United States Supreme Court Jurisprudence : 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. The Meyer court, however, did not address the issue of
whether a state may regulate the manner in which circulators
are paid.
In 1999, the United States Supreme Court examined a Colorado law
that provided a number of other restrictions on the signature
collection process for ballot initiatives. In that case the
court ruled that there must be a compelling state interest to
justify any restrictions on initiative petition circulation.
Buckley v. American Constitutional Law Foundation (1999), 525
U.S. 182.
In Buckley , the court invalidated Colorado's requirement that
paid petition circulators wear a badge identifying themselves
and identifying that they are paid circulators. The court
stated that the requirement to wear badges inhibits
participation in the petitioning process. "Because the badge
requirement compels personal name identification at the
precise moment when the circulator's interest in anonymity is
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greatest, it does not qualify for inclusion among 'the more
limited [election process] identification requirement[s]."
The Buckley court did not rule on the validity of the
requirement that a circulator wear a badge stating whether the
circulator was paid or a volunteer.
4)Other Federal Court Jurisprudence : In February 2001, the
Eighth Circuit Court of Appeals ruled that a North Dakota law
prohibiting payment for signature collection on a
per-signature basis was consistent with the United States
Constitution and with the Supreme Court's rulings in Buckley
and Meyer . In reaching this decision, the court noted that
the state "produced sufficient evidence that the regulation is
necessary to insure the integrity of the initiative process,"
and also noted that no evidence was presented "that payment by
the hour, rather than on commission, would in any way burden
[the] ability to collect signatures." Initiative & Referendum
Institute v. Jaeger (2001), 241 F.3d 614.
In February 2006, the Ninth Circuit Court of appeals ruled that
an Oregon law that prohibited payment to electoral petition
signature gatherers on a piece-work or per signature basis did
not impose a severe burden under the First Amendment, and
therefore did not unconstitutionally burden core political
speech. The court found that Oregon had an "important
regulatory interest in preventing fraud and its appearances in
its electoral processes," and that prohibiting the payment of
signature gatherers on a per-signature basis was reasonably
related to that interest. Prete v. Bradbury (2006), No.
04-35285.
5)Labor Law Implications : This bill prohibits the payment of
individuals on a per-signature or per-piece basis for
signature collection on petitions and voter registration.
Typically, in California, those individuals who are paid to
circulate petitions or register voters on a per-signature or
per-piece basis are independent contractors. However, to the
extent that this bill forces individuals who are paid to
circulate petitions or register voters to be paid an hourly
wage, this bill could also result in these individuals being
considered employees under California law. As such, the
individual, corporation, or group paying individuals to
circulate petitions may be required to pay minimum wage,
provide workers compensation insurance and unemployment
insurance for its employees, and maintain a payroll system.
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6)Increased Costs : As noted in comment #5, those individuals or
groups paying signature collectors may be required to provide
certain benefits such as unemployment insurance and workers
compensation insurance. This may result in higher costs to
those groups that pay individuals to circulate petitions,
register voters, and distribute absentee ballot applications.
In addition, prohibiting payment of individuals on a per-piece
or per-signature basis could increase costs because it may
become more difficult to measure the work product of petition
circulators. Potential increased costs may be partially
offset if, by reducing the incentive to submit fraudulent
signatures, this legislation results in paid circulators
submitting fewer fraudulent signatures.
7)Clarifying Amendments : As currently drafted, this bill
prohibits any payment to any individual in connection with
registering voters or in connection with distributing absentee
ballot applications. In light of the Supreme Court's Ruling
in Buckley, it is likely that such a provision would be found
unconstitutional. According to the author, it is not the
intent of this bill to prohibit any payment to individual in
registering voters or distributing absentee ballot
applications, but rather to prohibit payment for such
activities on a per-piece basis, so as to reduce the incentive
for fraud. In order to realize the author's intent, this bill
should be amended as follow: On page 4, line 32, delete
"assist" and insert "pay or receive money or any other
assisting", on page 4, line 34, after "gathering" insert ",
voter registration, or distribution of absentee ballot
applications", and on page 4, line 35, after "obtained" insert
", voter registration affidavits obtained or completed, or
absentee ballot applications obtained or completed".
8)Legislative Counsel Opinion : In an April 17, 2001 opinion,
Legislative Counsel opined that a statute to require an
individual circulating a petition to disclose (verbally or by
a sign, pin, badge, hat, or other indication) whether the
individual is paid to circulate the petition is valid under
the California and United States Constitutions. In its
analysis, Legislative Counsel wrote "in our view the
disclosure of the paid or unpaid status of the petition
circulator at the time of circulation properly may be
characterized as the least drastic means to accomplish the
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substantial state interest of enabling potential petition
signers to assess the sincerity of circulators."
9)Liability for Employee Conduct : This bill provides that if a
chief proponent of a statewide initiative or referendum
petition has knowledge of a violation of any provision of
state law relating to the conduct of any election committed by
a person obtaining signatures on the chief proponent's
petition, the violation by the person obtaining signatures
shall be conclusively considered a violation by the chief
proponent. This provision of the bill is modeled after a
similar provision of Oregon law that provides that the "chief
petitioner" can be held responsible for the conduct of a
person obtaining signatures on that petitioner's petition. A
"chief petitioner" in Oregon is roughly the legal equivalent
of a "proponent" on a California initiative.
This provision of the bill could be read to provide that the
chief proponent is liable for any violations of state law even
if the proponent was not complicit in those violations, and
even if the chief proponent took disciplinary actions against
the individual who committed the violation. In fact, under
this bill, the chief proponent could be held liable for
election law violations committed by other persons even if the
proponent notified the appropriate authorities immediately
upon learning of the violations. The Oregon law that this
provision is modeled after provides that a person cannot be
held liable if that person notifies the SOS in writing not
later than one business day after obtaining knowledge of the
potential violation. It may be appropriate to amend this bill
to provide that a chief proponent will not be held liable for
violations committed by another person obtaining signatures on
the chief proponent's petition if the chief proponent notifies
the SOS or the AG in a timely manner of the violations.
Additionally, while the Oregon law provides that a person cannot
be held criminally liable for the conduct of petition
circulators, this bill does not contain a similar exception.
Under existing law, most violations of law regarding the
initiative or referendum petition process are misdemeanors,
although certain violations, such as subscribing fictitious
names to an initiative, referendum, or recall petition or
knowingly submitting false or fraudulent signatures, can be
charged as felonies. The committee should consider whether it
would be appropriate to amend this bill to provide that a
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proponent cannot be held criminally liable for the conduct of
petition circulators.
Finally, this bill uses the term "chief proponent"-a term that
is not defined in existing law or in this bill. The committee
staff recommends that the bill be amended either to add a
definition of the term "chief proponent," or to change all
references from "chief proponent" to "proponent." Under
existing law, the term "proponent," in the context of a
statewide initiative or referendum measure, means the person
or persons who submit a draft of a petition proposing the
measure to the AG with a request that he or she prepare a
title and summary of the measure.
10)Proposition 77 and Costa v. Superior Court : The impetus for
one of the provisions in this proposal was Proposition 77 - a
measure that appeared on the November 2005 statewide special
election ballot. The version of Proposition 77 that appeared
on the initiative petitions differed from the version of the
measure that was submitted to the AG for title and summary.
After the differences between the measure that was submitted to
the AG and the measure that was circulated to voters were
discovered, the AG filed suit to remove Proposition 77 from
the ballot. The Superior Court in Sacramento County ordered
the measure off the ballot after finding that the initiative
proponents did not substantially comply with constitutional
and statutory requirements for placing the measure on the
ballot. The Court of Appeal for the Third Appellate District
upheld the ruling of the Superior Court, but the state Supreme
Court ordered that Proposition 77 appear on the ballot,
arguing that there was no evidence that voters who signed the
initiative petitions were misled by the differences between
the two versions. The Supreme Court retained jurisdiction
over the case, and after Proposition 77 failed on the November
ballot, the Supreme Court chose to continue with its
consideration of the case "in order to provide guidance for
future cases." The case was Costa v. Superior Court .
The Supreme Court issued its ruling in Costa on February 16 of
this year. In its ruling, the Court argued that the version
of the initiative "circulated for signature did not mislead
the public or otherwise frustrate or undermine the purposes
underlying any of the applicable constitutional or statutory
provisions or threaten the integrity of the election process,"
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and as such, "Proposition 77 properly was submitted to the
voters." The Supreme Court did not give any guidance to
courts for future challenges as to how those courts are
supposed to determine whether the public or signatories to an
initiative petition were misled or as to how many members of
the public or signatories to an initiative petition would need
to be misled in order for an initiative to be dropped from the
ballot.
This bill expressly prohibits the courts from using the doctrine
of substantial compliance-the doctrine employed by the Supreme
Court in Costa , to excuse a violation of the Elections Code,
except for non-substantive grammatical and spelling errors.
11)Related Legislation : SB 1047 (Bowen) prohibits payment on a
per-piece or per-signature basis for individuals gathering
signatures on petitions or registering voters. SB 1047 is
awaiting referral by the Assembly Rules Committee.
SB 1598 (Bowen) requires an initiative, referendum, or recall
petition to indicate whether it is being circulated by a paid
circulator or volunteer and to include a statement identifying
the five largest contributors in support of the measure. SB
1598 is pending in the Senate Appropriations Committee.
AB 1759 (Umberg), pending on the Senate Floor, requires campaign
committees that are required to file campaign reports
electronically to file an electronic report within 10 business
days of making contributions or independent expenditures of
$5,000 or more to support or oppose the qualification or
passage of a single state ballot measure.
AB 2460 (Evans), pending in the Assembly Appropriations
Committee, requires the SOS to approve an initiative petition
before that petition can be circulated, and provides that no
signatures on an initiative petition section shall be counted
unless the section is identical to the petition approved by
the SOS. AB 2460 was approved by this committee on March 29,
2006, by a vote of 5-0.
12)Previous Legislation : SB 469 (Bowen) of 2005, which was
vetoed by the Governor, would have required an initiative,
referendum, or recall petition to indicate whether it is being
circulated by a paid circulator or volunteer and to include a
statement identifying the five largest contributors in support
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of the measure. In his veto message to SB 469, Governor
Schwarzenegger indicated that he believed the bill "attacks
the initiative process and makes it more difficult for the
people of California to gather signatures and qualify measures
for the ballot."
AB 738 (Nation) of 2005, which was vetoed by the Governor, would
have required an individual who receives compensation to
circulate an initiative, referendum, or recall petition to
wear a badge identifying himself or herself as a paid
signature gatherer. In his veto message to AB 738, Governor
Schwarzenegger noted that existing law requires petitions to
contain a notice that the petition may be circulated by a paid
signature gatherer or a volunteer, and so he saw no compelling
reason to sign the bill.
AB 938 (Umberg) of 2005, which was vetoed by the Governor, would
have required campaign committees that are required to file
campaign reports electronically to file an electronic report
within 10 business days of making contributions or independent
expenditures of $10,000 or more to support or oppose the
qualification or passage of a single state ballot measure. In
his veto message, Governor Schwarzenegger indicated that he
was vetoing the bill because it "sets a higher threshold,
$10,000 rather than $5,000, for disclosure than in existing
law." Governor Schwarzenegger indicated his willingness to
work with the Legislature to close the loophole that AB 938
sought to close.
SB 725 (Scott) of 2001 would have required an initiative,
referendum, or recall petition to reflect whether it is being
circulated by a person paid to collect signatures or by a
volunteer. SB 725 was vetoed by Governor Davis, who argued
that the bill was unnecessary because petitions are already
required to inform voters that the circulator may be a
volunteer or may be paid, and that the voter has the right to
ask.
SB 725 was similar to SB 1219 (Schiff) of 1999 and SB 1979
(Schiff) of 1998, which were vetoed by Governor Davis and
Governor Wilson, respectively.
AB 980 (Pavley) of 2001 would have limited payment on a
per-piece or per-signature basis for individuals gathering
signatures, registering voters, or distributing absentee
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ballot applications. AB 980 was approved by this committee
and by the Assembly Appropriations Committee, but was never
brought up for a vote on the Assembly Floor.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation, AFL-CIO (sponsor)
American Federation of State, County, and Municipal Employees,
AFL-CIO
California Common Cause
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Federation of Teachers
California Professional Firefighters
Central Labor Council of Alameda County, AFL-CIO
Communication Workers of America Local 9415
Communication Workers of America Local 9333
Engineers and Scientists of California
General Teamsters, Warehousemen and Helpers Union Local 890
International Brotherhood of Electrical Workers Local 2295
International Brotherhood of Electrical Workers 9th District
International Alliance of Theatrical Stage Employees Local 728
International Association of Machinists and Aerospace Workers,
District Lodge 725
Ironworkers Local Union 155
Long Beach Firefighters Local 372
Musicians Union Local 6
Napa-Solano Building and Construction Trades Council
Office & Professional Employees Local 3
Plumber's Local 78
Plumbers & Pipefitters Local Union 230
Plumbers, Steamfitters & Refrigeration Fitters Local Union 467
Professional & Technical Engineers, Local 21
San Francisco Labor Council
Script Supervisors/Continuity & Allied Production Specialists
Guild Local 871
Sheet Metal Workers Local 162
Strategic Committee of Public Employees, Laborers' International
Union of North America
Teamsters Union Local 601
Unite Here Local 49
United Food and Commercial Workers Union, Western States Council
United Professional Firefighters of Contra Costa County, IAFF
Local 1230
Opposition
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None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094