BILL ANALYSIS
AB 1133
Page 1
Date of Hearing: April 28, 2009
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1133 (Niello) - As Introduced: February 27, 2009
SUMMARY : Makes it a felony punishable by 16 months, 2 or 3
years in the state prison for a person to offer, give, or
receive money or other valuable consideration 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 punishable by 16 months, 2 or 3 years in the
state prison 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 punishable by 16 months, 2 or 3 years in the
state prison 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 punishable by 16 months, 2 or 3 years in the
state prison 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 punishable by 16 months, 2 or 3 years in the
state prison 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,
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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 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.
(Elections Code Section 18520.)
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. (Elections Code Section
18521.)
3)Makes it a felony, punishable by imprisonment in the state
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prison for 16 months, 2 or 3 years, for a person or 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 do any of the following:
a) Induce any voter to refrain from voting at any election;
b) Induce any voter to vote or refrain from voting at an
election for any particular person or measure;
c) Induce any voter to remain away from the polls at an
election;
d) Reward any voter for having refrained from voting;
e) Reward any voter for having voted for any particular
person or measure;
f) Reward any voter for having refrained from voting for
any particular person or measure; or,
g) Reward any voter for having remained away from the polls
at an election. (Elections Code Section 18522.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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 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.
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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 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% voter
turnout. Given the fact that these voter 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
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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 a thing 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)Prison Overcrowding and Court Ordered Population Cap : The
California Policy Research Center (CPRC) recently issued a
report on the status of California's prisons. The report
stated, "California has the largest prison population of any
state in the nation, with more than 171,000 inmates in 33
adult prisons, and the state's annual correctional spending,
including jails and probation, amounts to $8.92 billion.
Despite the high cost of corrections, fewer California
prisoners participate in relevant treatment programs than
comparable states, and its inmate-to-officer ratio is
considerably higher. While the nation's prisons average one
correctional officer to every 4.5 inmates, the average
California officer is responsible for 6.5 inmates. Although
officer salaries are higher than average, their ranks are
spread dangerously thin and there is a severe vacancy rate."
(Petersilia, Understanding California Corrections, California
Policy Research Center, May 2006). California's prison
population will likely exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
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overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, pg. 1, 2 (2007).]
On February 9, 2009, a United States district court three-judge
panel issued a tentative ruling mandating the State of
California to resolve chronic prison overcrowding. In the
tentative ruling, the judges stated "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
conditions." Given the fact that California prisons are
housing twice the population they were built to accommodate
and with the prospect of early release of inmates imminent,
should the Legislature further contribute to the state's
mounting overcrowding problem by creating several new felonies
for offering inducements for voting, having voted, or
registering to vote?
5)Prior Legislation : AB 2227 (Furutani), of the 2007-08
Legislative Session, would have made it a felony for a person,
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political party, or a controlled committee to pay, or offer,
or promise to pay, any money or other valuable consideration
to any voter to induce that voter to vote at an election. AB
2227 was held in the Senate Elections Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Governor's Office of Planning and Research
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744