BILL ANALYSIS
AB 2101
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Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2101 (Fong) - As Introduced: February 18, 2010
PROPOSED CONSENT (As Proposed to Be Amended)
SUBJECT : ELECTIONS: INITIATIVE OR VOTER REGISTRATION FRAUD
KEY ISSUE : SHOULD A COURT BE ALLOWED TO ISSUE AN ORDER
PROHIBITING A PERSON WHO HAS BEEN CONVICTED OF INITIATIVE OR
VOTER REGISTRATION FRAUD FROM RECEIVING ANY MONEY IN THE FUTURE
FOR CIRCULATING PETITIONS OR REGISTERING VOTERS, WITH SPECIFIED
PROTECTIONS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill seeks to prevent someone who is convicted of
initiative or voter registration fraud from being paid to
circulate petitions or register voters. The author notes that
there have been numerous complaints in recent years about
dishonest signature gatherers. Often people who register voters
or gather signatures on petitions are often paid a "bounty" for
each person that they register. As a result, the author
contends, signature gatherers and people registering voters have
a financial incentive to mislead voters to get them to sign a
petition or to re-register to vote. This bill takes a narrow
approach by allowing courts to issue an order banning only those
individuals actually convicted of voter registration fraud from
being paid in the future to collect signatures on initiative
petitions or for registering voters. The bill recently passed
the Assembly Elections & Redistricting Committee by a 6-0 vote.
The American Civil Liberties Union expressed earlier concerns
about the bill's lack of an express mechanism to permit an
individual to petition the court in the future for
reconsideration based on extenuating circumstances, and the
author has agreed to amend the bill as proposed to be amended to
address that concern. The author has also agreed to two
additional amendments, one dealing with the remedy available for
violation of the court order, the other adding a reasonable
limit on the duration of the court order modeled after a similar
law in the State of Arizona. There is no known opposition to
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the measure.
SUMMARY : Permits a court to prevent someone who is convicted of
initiative fraud or voter registration fraud from being paid to
circulate petitions or register voters. Specifically, this
bill :
1)Permits a court, upon finding a person guilty of engaging in
prohibited voter registration activities, to issue an order
prohibiting that person from receiving money or other valuable
consideration for assisting another person to register to vote
by receiving the completed affidavit of registration.
Provides that such an order is in addition to any other
penalty imposed by state law.
2)Permits a court, upon finding a person guilty of engaging in
prohibited conduct regarding the circulation of an initiative,
referendum, or recall petition, to issue an order prohibiting
that person from receiving money or other valuable
consideration for gathering signatures on an initiative,
referendum, or recall petition. Provides that such an order
is in addition to any other penalty imposed by state law.
EXISTING LAW :
1)Prohibits various conduct with respect to the registration of
voters, including the following:
a) Registering a person, including oneself, who is not
entitled to register to vote;
b) Registering a fictitious person to vote;
c) Registering a person to vote under a false name or
address;
d) Interfering with the return of a completed affidavit
of voter registration;
e) Refusing to return a completed affidavit of
registration;
f) Altering the content of an affidavit of registration
without the consent of the affiant; and,
g) Misusing the information from an affidavit of
registration.
2)Prohibits various conduct with respect to the circulation of
an initiative, referendum, or recall petition, including the
following:
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a) Misrepresentation by the circulator of a petition of
the contents, purport, or effect of the petition;
b) Refusal by the circulator to allow a petition signer
to read the petition;
c) Obscuring the summary of a measure prepared by the
Attorney General from the view of a prospective signer;
d) Offering or giving money or other valuable
consideration in exchange for a person's signature on a
petition;
e) Affixing or soliciting false or forged signatures, or
fictitious names, on a petition;
f) Using the information on a petition that has been
signed by voters, including the voters' signatures, for
any purpose other than the qualification of the measure
for the ballot; and,
g) Making a false affidavit concerning a petition.
COMMENTS : This bill seeks to permit a court to prevent someone
who is convicted of initiative fraud or voter registration fraud
from being paid to circulate petitions or register voters. In
support, the author states:
Stories about voters being misled into signing initiative
petitions that they do not support or having their party
affiliations changed without their consent are all too
common.
In the last two election cycles, individuals registering
voters in Southern California have been arrested and
charged in schemes to change voters' registrations from
Democratic to Republican without the voters' consent.
Additionally, numerous complaints in recent years have
uncovered a common tactic of dishonest signature gatherers,
who tell voters that they need to sign multiple times to
have their signature counted on an initiative petition.
These signature gatherers then get voters to sign other
initiative petitions without disclosing to the voter what
those petitions would do.
Unfortunately, such problems are all too common because
people who register voters or gather signatures on
petitions are often paid a "bounty" for each person that
they register or for each signature that they gather. As a
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result, signature gatherers and people registering voters
have a financial incentive to mislead voters to get them to
sign a petition or to re-register to vote.
Previous efforts to limit the ability to pay "bounties" for
collecting signatures on petitions or registering voters
have failed due to concerns that such laws may make it more
difficult for grassroots organizations to gather signatures
on petitions and register voters.
In reflection of those concerns, AB 2101 takes a narrower
approach. AB 2101 cracks down on initiative fraud and
voter registration fraud by allowing courts to ban
individuals who are convicted of fraud from being paid to
collect signatures on initiative petitions or for
registering voters. Law abiding citizens who are paid to
register voters and collect signatures on petitions would
not be affected by this bill. Instead, this bill takes aim
at those who have been convicted of fraudulent behavior,
and gives judges the tools to prevent those individuals
from continuing to threaten the integrity of California's
elections.
Similar Laws in Other States : The provisions of this bill are
similar to laws enacted in Arizona and Oregon in 2009 which
prohibit petition circulators who are convicted of fraud from
being compensated for collecting signatures on initiative,
referendum, or recall petitions. In 2009, Oregon's Legislature
approved and the Governor signed HB 2005, which among other
provisions prohibits a person from being eligible to register as
a petition circulator if that person has had criminal or civil
penalties imposed against him or her for a violation of the
state's laws governing the circulation of petitions. In
Arizona, the Legislature approved and the Governor approved SB
1091, which among other provisions prohibits a person convicted
of engaging in a pattern of petition fraud from participating in
any initiative, referendum, or recall campaign for five years.
Author's Amendments : Following passage in the Elections
Committee, the author's office worked with committee counsel to
address several areas of potential concern, either raised
earlier by the American Civil Liberties Union or committee
counsel. As a result of this cooperative effort, the author has
agreed to the following amendments to the measure, as proposed
to be amended:
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New Mechanism for Potential Review of the Ban Order Based on
Purported Extenuating Circumstances : As noted, this bill
permits a court to issue an order preventing someone who is
convicted of voter registration fraud from being paid to
circulate petitions or register voters. The bill previously did
not provide any express mechanism for review of the court's
order. Thus an individual banned under the measure from
participating in paid voter registration or petition circulation
activities arguably did not have any means to petition the court
in the future to review or reverse the order for any reason due
to alleged changed or extenuating circumstances. The author
therefore has agreed to amend the bill as follows to address
this issue:
On page 2, delete lines 9 and 10 and insert:
(b) A person against whom an order is issued may, upon a
showing of good cause, petition the court for reconsideration of
the court's order.
On page 2, delete lines 21 and 22 and insert:
(b) A person against whom an order is issued may, upon a
showing of good cause, petition the court for reconsideration of
the court's order.
Criminalizing the Violation of a Civil Court Order : This bill
states that any person found in violation of the civil order
issued by the court, prohibiting their participation in voter
registration or petition circulation for pay, is guilty of a
criminal misdemeanor. While potential punishment for a
violation of the court's civil order would appear warranted,
using criminal sanctions for the violation of the civil order
seems inappropriate. Reasonable civil penalties would appear
more appropriate to satisfy the aim of deterrence, and more
appropriate in punishing a violation of a civil court order.
The author therefore has agreed to amend the bill as follows to
address this issue:
On page 2, following new subdivision (b) in Section 1 of the
bill as detailed above, insert:
(c) A person who violates an order issued by the court pursuant
to subdivision (a) may be subject to a civil penalty not to
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exceed $25,000 (twenty five thousand dollars).
On page 2, following new subdivision (b) in Section 2 of the
bill as detailed above, insert:
(c) A person who violates an order issued by the court pursuant
to subdivision (a) may be subject to a civil penalty not to
exceed $25,000 (twenty five thousand dollars).
Indefinite Ban on Participating in Voter Registration and
Petition Circulation : This bill arguably could permit a court
to issue a lifetime order preventing someone who is convicted of
initiative or voter registration fraud from ever again being
paid to circulate petitions or register voters in perpetuity.
Similar legislation in Arizona limits the prohibition to five
years. The author therefore has agreed to amend the bill to
track the Arizona approach to this issue as follows:
On page 2, following new subdivision (c) in Section 1 of the
bill as detailed above insert:
(d) A person against whom an order is issued may be prohibited
from participating for a period of up to five years in the voter
registration activities described in subdivision (a).
On page 2, following new subdivision (c) in Section 2 of the
bill as detailed above insert:
(d) A person against whom an order is issued may be prohibited
from participating for a period of up to five years in the
signature gathering activities described in subdivision (a).
ARGUMENTS IN SUPPORT : In support, the California Association of
Clerks and Election Officials state:
This proposal will prohibit those found in violation of
voter registration or petition circulation activities from
being paid or receiving other consideration for
participating in these activities. Paid voter registration
and petition circulation drives provide motive for those
inclined to falsify these documents. Removing the payment
if a person is found guilty of these prohibited activities
will hopefully eliminate that motive and strengthen the
existing penalties for such illegal activities.
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Previous Legislation : SB 34 (Corbett) of 2009 would have made
it a misdemeanor for a person to pay or to receive money or any
other thing of value based on the number of signatures collected
on a state or local initiative, referendum, or recall petition.
SB 34 was vetoed by the Governor, who expressed concern that it
could "make it more difficult for grassroots organizations to
gather the necessary signatures and qualify measures for the
ballot."
SB 1686 (Denham) of 2008 would have made it a misdemeanor,
punishable by a fine not exceeding $5,000, by imprisonment in a
county jail not exceeding one year, or by both the fine and
imprisonment, for a person, company, organization, company
official, or other organizational officer in charge of a person
who circulates an initiative, referendum, or recall petition to
knowingly direct or permit the person to make a false affidavit
concerning the initiative, referendum, or recall petition. SB
1686 was vetoed by the Governor, though he did not express any
policy objections to the bill.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Clerks and Election Officials
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334