BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: SB 34 HEARING DATE:
3/31/09
AUTHOR: CORBETT ANALYSIS BY:
Darren Chesin
AMENDED: 3/27/09
FISCAL: YES
SUBJECT
Petitions: compensation for signatures
DESCRIPTION
Existing law provides that a voter or a person who is
qualified to register to vote in this state may circulate
an initiative, referendum petition or recall petition as
specified.
Existing law does not prohibit a person from paying or
receiving money for the circulation of petitions for
signatures nor does it prohibit paying or receiving payment
based on the number of signatures gathered.
Existing law requires that state or local initiative
petitions must contain the following notice in 12-point
type:
"NOTICE TO THE PUBLIC
THIS PETITION MAY BE CIRCULATED BY A PAID SIGNATURE
GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK."
This bill would prohibit a person from paying or receiving
money or any other thing of value based on the number of
signatures obtained on a state or local initiative,
referendum, or recall petition. Violation of this
prohibition would constitute a misdemeanor.
This bill also states that nothing in it prohibits the
payment for signature gathering not based, either directly
or indirectly, on the number of signatures obtained on a
state or local initiative, referendum, or recall petition.
BACKGROUND
Bounty Hunters . To qualify an initiative to be placed on
the statewide ballot, proponents must gather hundreds of
thousands of signatures. The need to collect this large
number of signatures within a limited timeframe has given
rise to an industry of petition management firms that pay
signature gatherers a bounty based on the number of
signatures they collect.
The individuals who are paid to collect signatures on
initiative, referendum, or recall petitions are commonly
referred to as "bounty hunters." According to the
Secretary of State's Election Fraud Investigation Unit
(EFIU):
Between 1994 and 2005 the EFIU opened 184 cases of
falsified petitions.
There have been 22 bounty hunters convicted for
falsifying petitions following EFIU investigations.
There are currently 34 open cases of falsified petitions.
There are four cases of falsified petitions currently
pending with District Attorney's Offices.
Other States . According to the National Conference of
State Legislatures, it is common for initiative sponsors to
pay circulators on a per-signature basis to gather petition
signatures. Payments typically range from $1 to $3 per
signature, and occasionally are as high as $10 per
signature. Critics argue that this encourages fraud --
since a circulator who collects more signatures will earn
more money, circulators who are paid per signature are more
likely to commit acts of fraud such as forging signatures
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or misrepresenting the content of the petition in order to
encourage people to sign.
In three states (North Dakota, Oregon and Wyoming),
initiative sponsors are banned from paying petition
circulators per signature. Instead, they may pay a flat
fee or an hourly salary. These laws have been challenged
in the courts with mixed results. North Dakota and
Oregon's provisions have been upheld by the U.S. 9th and
8th Circuit Courts, respectively. However, similar
provisions in Idaho, Maine, Mississippi and Washington were
held unconstitutional by federal district courts.
More on Relevant 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 February, 2001, the U.S. 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
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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 U.S. Ninth Circuit Court of Appeals
ruled that an Oregon law that prohibited payment to
electoral petition signature gatherers on a 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.
COMMENTS
1.According to the author , in California and throughout the
country there are increasing reports of ballot initiative
fraud in the signature gathering process. Quite often,
signature gathering firms compensate circulators based on
the number of signatures they gather which may encourage
some circulators to collect signatures by any means
necessary. Many circulators deliberately misrepresent
information and forge signatures of both voters and
nonvoters.
Specific cases of fraud in Montana, Nevada, and Oklahoma
included circulators who forged signatures onto their
petitions of names they chose from a phonebook. Others
have inserted carbon paper and a second petition beneath
the original one, without the persons' knowledge, to get
their signature on another petition. Similar accusations
of corruption are also common in California.
This bill intends to address this issue by banning the
possibility of paying per signature.
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2.Prior Legislation . SB 1047 (Bowen) and AB 2946 (Leno),
both from the 2005-06 session, contained provisions
similar to this bill that prohibit payment on
per-signature basis for individuals circulating
petitions. SB 1047 was eventually dropped by the author
while AB 2946 was vetoed. In his veto message, the
Governor stated, in part:
"The prohibitions on per-signature payments will
make it more difficult for grass-roots
organizations to get the necessary signatures in
the time allotted. As I have said before making
the process more difficult may be fine for those
opposed to the initiative process or those who
profit from it, but it is not for everyday
Californians with an idea for reform."
POSITIONS
Sponsor: Author
Support: Secretary of State
Oppose: Capitol Resource Family Impact
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