BILL ANALYSIS
AB 1133
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1133 (Niello) - As Introduced: February 27, 2009
SUBJECT : Gifts for voting.
SUMMARY : Makes it a felony for a person to offer, give, or
receive anything of value in exchange for voting or registering
to vote, or as an inducement for voting or registering to vote.
Specifically, this bill :
1)Makes it a felony for a person, directly or through another
person, to give, offer, or promise any office, place, or
employment to or for any person in order to induce a voter to
register to vote or vote at an election.
2)Makes it a felony for a person, directly or through another
person, to receive, agree, or contract for any money, gift,
loan, or other valuable consideration, office, place or
employment for any person in exchange for voting or for
inducing any other person to vote.
3)Makes it a felony for a person or a controlled committee,
directly or through another person or controlled committee, to
pay, lend, or contribute money or other valuable consideration
to or for any person to induce a voter to vote at an election,
or to reward a voter for having voted at an election.
4)Makes it a felony for a person or committee, directly or
through another person or committee, to pay, lend, or
contribute any money, gift, loan, or other valuable
consideration to any person for registering to vote, or for a
person to receive any money, gift, loan, or other valuable
consideration for registering to vote.
5)Makes it a felony to use or threaten to use force, violence,
coercion, or intimidation to induce or compel another person
to register to vote or to vote at an election, or to hire or
arrange for any other person to use or threaten the use of
force to compel another person to register to vote or vote at
an election.
6)Provides that all of the above felonies are punishable by
AB 1133
Page 2
imprisonment in the state prison for 16 months or two or three
years.
7)Provides that the provisions of this bill shall not be
interpreted to prohibit a person from offering or accepting
transportation to or from a polling place or another location
where a ballot may be cast.
EXISTING LAW :
1)Makes it a felony for a person, directly or through another
person, to give, offer, or promise any office, place, or
employment, or promise to procure or endeavor to procure any
office, place, or employment to or for any voter, or to or for
any other person, in order to induce that voter at any
election to:
a) Refrain from voting; or,
b) Vote or refrain from voting for any particular person.
2)Makes it a felony for a person, directly or through any other
person, to receive, agree, or contract for, before, during or
after an election, any money, gift, loan, or other valuable
consideration, office, place, or employment for himself or any
other person because he or any other person:
a) Voted, agreed to vote, refrained from voting, or agreed
to refrain from voting for any particular person or
measure;
b) Remained away from the polls;
c) Refrained or agreed to refrain from voting; or,
d) Induced any other person to remain away from polls,
refrain from voting, or vote or refrain from voting for any
particular person or measure.
3)Makes it a felony for a person or a controlled committee,
directly or through any other person or controlled committee,
to pay, lend, or contribute, or offer or promise to pay, lend
or contribute, any money or other valuable consideration to or
for any voter or to or for any other person to:
AB 1133
Page 3
a) Induce any voter to:
i) Refrain from voting at any election;
ii) Vote or refrain from voting at an election for any
particular person or measure; or,
iii) Remain away from the polls at an election.
b) Reward any voter for having:
i) Refrained from voting;
ii) Voted for or refrained from voting for any
particular person or measure; or,
iii) Remained away from the polls at an election.
4)Provides that a violation of any of the above felonies shall
be punishable by imprisonment in the state prison for 16
months or two or three years.
5)Makes it a federal crime, punishable by no more than two years
in prison, by a fine, or by both a fine and imprisonment, to
make or offer to make an expenditure to any person in exchange
for that person voting at a federal election or for
registering to vote.
6)Makes it a federal crime, punishable by a fine of not more
than $10,000 or imprisonment not more than five years, or
both, for a person to pay, offer to pay, or accept payment for
registering to vote or for voting in federal elections.
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
Under existing state law, paying someone to vote for a
particular person or measure is illegal, but rewarding a
person for registering to vote or voting is technically
allowed. Consequently, candidates for state and local
office sometimes take advantage of this loophole and try to
AB 1133
Page 4
reward people for voting with gift cards or coupons for a
chicken dinner. Such campaign gimmicks call into question
the equity and legitimacy of the electoral process and
undermine the integrity of its outcomes.
Crucial to the political process is the public's trust in
the system and tolerance for its outcomes. The immediate
and tangible exchange of something of value for registering
to vote or voting manipulates a person's freedom to express
his or her own preference in the sanctity of the voting
booth. Such cajoling challenges the integrity of the
process by raising doubt in the minds of voters that all
votes are equal in worth and expressed without coercion.
A direct exchange between a candidate and a voter also
undermines the mandate of an elected official and creates
among voters an unreasonable expectation of future payment.
Although elected officials are beholden to all who voted,
introducing a reward for voting muddles the relationship
between the official and the voters. Questions arise as to
whether elected officials are more or less accountable to
those that took payment for their vote compared to those
that did not. Also, voters may come to expect candidates
to offer monetary incentives for voting if such campaign
tactics become widespread.
California should remove this potential for electoral abuse
by adopting the standard that exists for federal elections
and ban vote buying all the way across the board.
2)Should Inducements be Prohibited ? As a means of increasing
voter turnout, a campaign or a small business owner will
occasionally offer a small inducement to voters who cast a
ballot. Candidates occasionally have offered food or small
gifts to voters who can prove that they voted in an election,
while restaurant owners and other small business owners
occasionally have offered discounts or free items to voters
who can prove that they voted. Under existing state law, this
inducement can be made only if it is without regard for the
way that the person voted on the candidates and measures that
are on the ballot and if no federal candidate appears on the
ballot. Recent special elections have resulted in low voter
turnout. For example, the special election for the March 24,
2009, 26th Senate District primary race resulted in a 7.91
percent voter turnout. Given the fact that these voter
AB 1133
Page 5
inducements can only be offered at non-federal elections, when
voter turnout generally is low, is it desirable to restrict
creative attempts to boost voter participation?
3)Should Voters Who Accept Items of Little Value for Voting be
Subject to Felony Penalties ? As noted above, it is not
uncommon for commercial establishments to offer free food or
beverages or some sort of discount on election day to people
who demonstrate that they voted. Under the provisions of this
bill, a person could be charged with a felony for accepting a
free cup of coffee or some other similarly valued item from a
retail establishment when showing up on election day and
demonstrating that he or she had voted.
The penalty proposed by this bill for accepting something of
value as a reward for having voted is steeper than the
potential penalties under existing law for interfering with
the return of a completed voter registration card, willfully
interfering with the return of a completed vote by mail
ballot, deliberate misrepresentation by an initiative petition
circulator about the contents of the initiative petition, or
giving a person something of value in exchange for signing an
initiative petition. It seems unlikely that providing a voter
with an item of little value to encourage voter participation
is a more serious threat to the electoral process than the
aforementioned crimes. In light of these facts, the committee
may wish to consider whether the penalties proposed by this
bill are appropriate.
4)Federal Law : State law prohibits a person from giving
anything of value to a voter for having refrained from voting.
However, state law does not currently prohibit a person from
giving a voter something of value for having voted, or to
induce a voter to vote, provided that such payment is not
dependent on voting for or against a particular person or
candidate.
At least two provisions of federal law, on the other hand,
prohibit a person from making a payment or expenditure to a
person for voting in a federal election. 18 U.S.C. 597
provides that any person who "makes or offers to make an
expenditure to any person . . . to vote" shall be fined,
imprisoned for up to two years, or fined and imprisoned.
Additionally, 42 U.S.C. 1973i provides that any person who
"pays or offers to pay or accepts payment . . . for voting
AB 1133
Page 6
shall be fined not more than $10,000 or imprisoned not more
than five years, or both."
However, these provisions apply only to elections in which a
candidate for federal office is on the ballot. As a result,
these provisions apply to most statewide elections, since
regularly scheduled statewide elections include congressional
races. Similarly, the federal law prohibitions would apply to
any special election held to fill a vacancy in the United
States Senate or the United States House of Representatives.
For any election that does not have a federal race on the
ballot, however, these federal prohibitions do not apply. As
such, these provisions would not apply to any special election
at which voters are only considering ballot measures or
candidates for state and local office, nor would they apply to
regularly scheduled local elections that are not held at the
same time as federal elections.
5)Arguments in Support : According to the bill's sponsor, the
Governor's Office of Planning and Research:
Current federal law prohibits any person from giving or
receiving payment for registration to vote or for voting.
However, these provisions only apply to elections in
California when a candidate for federal office is on the
ballot. Under exiting state law, paying someone to vote
for a particular person or measure is illegal, but
rewarding a person for registering to vote or voting is
technically allowed.
Campaign gimmicks such as these that reward voters for
voting call into question the equity and legitimacy of the
electoral process and undermine the integrity of its
outcomes. Assembly Bill 1133 would conform state law with
federal law to prohibit rewarding a person for registering
to vote or voting.
6)Previous Legislation : This bill is similar to AB 2227
(Furutani) of 2008, which would have prohibited a person from
giving anything of value to a voter to induce the voter to
vote or to reward the voter for voting. Unlike this bill,
however, AB 2227 would not have made it a felony for a voter
to receive something of value for having voted at an election.
AB 2227 was approved in the Assembly, but died in the Senate
AB 1133
Page 7
when it was referred to the Senate Elections, Reapportionment
and Constitutional Amendments Committee and never heard in
that committee.
AB 929 (Brewer) of 1999 would have prohibited a person from
giving anything of value to a voter to induce the voter to
vote or to reward the voter for voting, and would have
prohibited a person from receiving anything of value in
exchange for having voted. AB 929 failed passage in this
committee.
1)Double-Referral : This bill has been double-referred to the
Assembly Committee on Public Safety. Due to upcoming
committee deadlines, if this bill is approved in committee
today, it would need to be heard in the Assembly Public Safety
Committee next week. As such, in order to ensure that this
bill can be heard in both policy committees before the
upcoming deadline, if it is the author's or the committee's
desire to amend this bill, it should be passed out of
committee without being amended, but with the author's
commitment to amend the bill in the Assembly Public Safety
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Governor's Office of Planning and Research (sponsor)
Opposition
None on file.
Analysis Prepared by : Qiana Charles / E. & R. / (916)
319-2094