BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Debra Bowen, Chair
BILL NO: AB 2946 HEARING DATE:6/28/06
AUTHOR: LENO ANALYSIS BY: Fran Tibon
Estoista
AMENDED: As Proposed To Be Amended
FISCAL: YES
DESCRIPTION
Existing law provides a person who is a voter or who is
qualified to register to vote in this state may circulate
an initiative, referendum petition or recall petition as
specified.
Existing law 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.
This bill 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, based on the
number of voter registration affidavits obtained or
completed, or based on the number of absentee ballot
applications obtained or completed.
This bill provides that any signatures collected in
violation of any provision of state law relating to the
circulation of a statewide initiative, referendum, or
recall petition shall be invalid and shall not count
towards qualification of the initiative, referendum or
recall.
This bill prohibits the doctrine of substantial compliance
from being used by any elections official or court to
excuse a violation of any provision of state law relating
to the circulation of a statewide initiative, referendum,
or recall petition, except for non-substantive grammatical
and spelling errors.
This bill permits any statewide initiative, referendum, or
recall 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, and further provides
that if the AG determines the petition does not comply, he
or she shall notify the proponent as to why the petition
does not comply and allow the proponent to submit a
corrected petition for approval.
This bill requires the ballot title, summary, and 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.
This bill provides that if a proponent of a statewide
initiative, referendum, or recall petition has knowledge of
a violation of any provision of state law relating to the
circulation of a statewide initiative or referendum
petition committed by a person obtaining signatures on the
proponent's petition, the violation by the person obtaining
signatures shall be conclusively considered a violation by
the proponent.
This bill provides that a proponent shall not be liable if
he or she notifies the SOS within one business day after
the proponent obtains knowledge of a potential violation.
This bill provides that if a statewide initiative,
referendum, or recall petition has more than one proponent,
each proponent with knowledge may be held liable, though
this liability does not apply to a violation of law that is
subject to a criminal penalty.
BACKGROUND
The use of the initiative process has increased
exponentially in recent years. To qualify an initiative to
be placed on the ballot, proponents must gather a large
number of signatures. The need to collect tens of
thousands of signatures within a limited timeframe has
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given rise to an industry of signature gathering firms that
pay signature gatherers a bounty based on the number of
signatures they collect.
COMMENTS
1.Wow, You Look Great, Have You Lost Weight ? The author is
planning to amend this bill by deleting sections 1, 4, 5
and 6 of the measure dealing with the funding sources for
initiative signature gathering efforts and requiring
petition signature gatherers to disclose up front whether
they're volunteers or are being paid for their efforts.
2.U.S. 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.
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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.
3.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.
4.Liability for Employee Conduct . This bill provides that
if a 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
proponent's petition, the violation by the person
obtaining signatures shall be conclusively considered a
violation by the proponent. This provision of the bill
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is modeled after a similar provision of Oregon law which
allows the "chief petitioner" to 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.
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 author and committee may wish to consider
whether it would be appropriate to provide a similar
exception in this measure.
5.Proposition 77 and Costa v. Superior Court . The impetus
for one of the provisions in this proposal was
Proposition 77, which 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.
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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. The
doctrine of substantial compliance is intended to
circumvent harsh results engendered by formalistic,
overly technical adherence to the exact words of a
provision of law.
6.Related Legislation . AB 2459 (Oropeza) prohibits a
person from circulating an initiative or referendum
petition unless that person was eligible to register to
vote in the state at the time of the most recent
established election date. AB 2459 is scheduled to be
heard by this committee today. SB 1047 (Bowen) contains
a provision that prohibits payment on a per-piece or
per-signature basis for individuals gathering signatures
on petitions or registering voters. SB 1047 is scheduled
for hearing on June 27 in the Assembly Elections and
Redistricting Committee.
PRIOR ACTION
Assembly Elections and Redistricting Committee 4-2
Assembly Appropriations Committee 13-5
Assembly Floor 48-32
POSITIONS
Sponsor: California Labor Federation, AFL-CIO (co-sponsor)
Service Employees International Union (SEIU)
(co-sponsor)
Support: AFT College Staff Guild, Local 1521A
AFT Guild, Local 1931
AFSCME
Art Directors Guild & Scenic, Title & Graphic
Artists IATSE
Local 800
Bakers' Union, Local No. 85
Butte Glenn Central Labor Council
California Common Cause
California Conference Board of the Amalgamated
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Transit Union
California Conference of Machinists
California Federation of Teachers
California Professional Firefighters
California School Employees Association, AFL-CIO
California Teachers Association
Central Labor Council of Alameda County, AFL-CIO
UNITE HERE Local 49
Communications Workers of America, Local 9333,
9415, 9510
Engineers & Scientists of California
Foundation for Taxpayer and Consumer Rights
General Teamsters, Warehousemen & Helpers Union,
Local 890
International Association of Machinists Local
Lodge 1782
I.A.T.S.E. Local 80
I.A.T.S.E. Local 728
IBEW, Local Union 9, 18, 45, 302, 441, 595, 2295
International Association of Machinists &
Aerospace Workers,
District Lodge 725
Ironworkers Local 155, 377, 433
Kern County Fire Fighters
Laborers' International Union of North America
Local Union 250
Long Beach Fire Fighters, Local 372
Musicians Union Local 6
Napa-Solano Building & Construction Trades
Council
Northern California District Council - ILWU
OP&CMIA Plasterers' Local Union 200
OPEIU, Local 3
Plumber's Local 78
Plumbers & Pipefitters Local Union 230
Plumbers & Steamfitters Local Union 398, 484
Plumbers, Steamfitters & Refrigeration Fitters
Local Union 467
Professional & Technical Engineers, Local 21
San Francisco Labor Council, AFL-CIO
San Mateo County Building & Construction Trades
Council
Santa Clara County Fire Fighters
Santa Rosa Fire Fighters, Local 1401
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Script Supervisors/Continuity & Allied Production
Specialists
Guild, Local 871
SEIU Local 1280
Sheet Metal Workers' International Association
Local
Union 104, and 162
Strategic Committee of Public Employees
Studio Transportation Drivers Teamsters Local 399
Teamsters
Teamsters Automotive, Industrial & Allied Workers
Local 495
Teamsters Local 228, 396, 601, 683, 853
Transport Workers Union of America
Transport Workers Union of America Local 250-A
United Educators of San Francisco (UESF)
UFCW Local 428, 1179, 1428, 1442
United Administrators of San Francisco
United Food & Commercial Workers Union
Unite Here
United Professional Fire Fighters of Contra Costa
County IAFF Local 1230
United Steelworkers Local 418G
Western States Council
Oppose: None received
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