BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: SB 370 HEARING DATE:
4/21/09
AUTHOR: RUNNER ANALYSIS BY:
Darren Chesin
AMENDED: 4/1/09
FISCAL: YES
SUBJECT
Elections: voting
DESCRIPTION
Overview
This bill would make four distinct and substantive changes
to the conduct of elections in California, each of which is
discussed in greater detail below. In brief, this bill
would:
Provide that a person on probation for the conviction of
a felony is not eligible to register to vote.
Require that the identification (return) envelope for a
vote by mail (VBM) ballot include the last four digits of
the voter's California driver's license or identification
card number or, if unavailable, the last four digits of
the voter's social security number and would require this
information be verified before counting the ballot.
Provide that a VBM ballot of uniformed services voters or
their spouses or dependents must be cast by Election Day
but may be received by elections officials up to 21 days
after the election.
Require a person who desires to vote at the polls on
Election Day to show specified proof of identification
and would require the Department of Motor Vehicles (DMV)
to waive the fee for an identification card requested for
satisfying this requirement.
Felony Probation and Voter Eligibility
The California Constitution provides that a United States
citizen 18 years of age and a resident in this state may
vote and that the Legislature shall provide for the
disqualification of electors while mentally incompetent or
imprisoned or on parole for the conviction of a felony.
Existing statutory law similarly provides that a person is
eligible to register to vote in California if he or she is
a United States citizen, a resident of California, not in
prison or on parole for the conviction of a felony, and at
least 18 years of age at the time of the next election.
Existing law generally allows persons who are subject to a
felony sentence by a court to be released on "probation"
which means the suspension of the imposition or execution
of a sentence and the order of conditional and revocable
release in the community under the supervision of a
probation officer.
Existing law prohibits probation, unless in the interest of
justice stated in the record, for persons who are convicted
of specified crimes, which include various weapons
violations, crimes where great bodily injury occurs, and
specified second violations. Various other statutes
prohibit or restrict probation for other specified crimes.
This bill would additionally provide that a person on
probation for conviction of a felony is also ineligible to
register to vote in California and, commencing in 2011,
would require county elections officials to cancel the
voter registration for these probationers upon notice from
the clerk of the superior court.
Vote By Mail Ballot Envelopes
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Existing law provides that a person wishing to register to
vote who has a valid California driver's license or
identification card must include the license or
identification card number on the affidavit of voter
registration. If the person does not have a valid driver's
license or identification card then he or she must provide
the last four digits of his or her social security number.
If the person has not been issued a social security number,
the state must assign the applicant a unique number that
will serve to identify the applicant for voter registration
purposes.
Existing law requires that the identification envelope for
returning a VBM ballot contain specified information,
including the voter's signature, which must be verified
before the ballot can be counted.
This bill would additionally require that a VBM return
envelope must include the last four digits of the voter's
California driver's license or identification card number
or, if unavailable, the last four digits of the voter's
social security number and a security flap to conceal the
voter's information during mailing. As with the signature,
the four-digit number would have to be verified by the
elections official before the ballot could be counted.
Armed Forces Vote by Mail Ballots
Existing law defines "special absentee voter" as an elector
who is any of the following:
A member of the armed forces of the United States or any
auxiliary branch thereof;
A citizen of the United States temporarily living outside
the territorial limits of the United States or the
District of Columbia;
Serving on a merchant vessel documented under the laws of
the United States; or,
A spouse or dependent of a member of the armed forces or
any auxiliary branch thereof.
Existing law permits a special absentee voter who is
temporarily living outside of the United States to return
his or her ballot by facsimile transmission. Special
absentee ballots can be requested and provided as early as
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60 days prior to an election (normal VBM ballots cannot be
requested or provided until 29 days prior to an election)
Existing law requires all VBM ballots, including special
absentee voter ballots, to be received by the elections
official no later than 8 p.m. on Election Day.
This bill would instead provide that the VBM ballot of a
member of the United States Armed Forces who is an "absent
uniformed services voter" and which is postmarked or
signed and dated by election day may be received by the
elections official up to 21 days after an election. As
defined in this bill by a cross reference to federal law,
an "absent uniformed services voter" means a member of a
uniformed service on active duty who, by reason of such
active duty, is absent from the place of residence where
the member is otherwise qualified to vote.
Voter Identification
Existing law requires a voter at the polls to announce his
or her name and address to a precinct officer. When the
precinct officer finds the voter's name in the roster, the
voter is required to write his or her name and residence
address on the roster and is provided a ballot.
Existing law permits a voter to vote a provisional ballot
if his or her qualification or entitlement to vote cannot
be immediately established upon examination of the roster
of voters for the precinct or upon examination of the
records on file with the county elections official.
Existing law authorizes a member of the precinct board to
challenge the ability of a person to vote on various
grounds, including that the voter is not the person whose
name appears on the index, is not a precinct resident, is
not a U.S. citizen, has already voted on that day, or is on
parole for the conviction of a felony.
Existing law provides that any person who votes more than
once, attempts to vote more than once, or impersonates or
attempts to impersonate a voter at an election is guilty of
a crime punishable by imprisonment in the state prison for
16 months or two or three years, or in county jail not
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exceeding one year.
Existing federal law , pursuant to the Help America Vote Act
of 2002 (42 U.S.C. 15301, et seq.) requires a voter who
registers to vote by mail and who has not previously voted
to present one of a number of specified documents to
establish identity before receiving a ballot. This
requirement only applies the first time an individual votes
after registering to vote.
This bill instead requires that prior to receiving a ballot
at the polls, all voters must present photo identification
issued by either the United States, the State of California
or an Indian tribe recognized by the United States
government. The name of the individual on the
identification must conform to the name in the individual's
voter registration record. The identification must include
an expiration date which has either not expired at the time
of voting or expired less than two years prior to the
election.
This bill provides that a voter who is unable or refuses to
present proof of his or her identity may vote a provisional
ballot.
This bill would also require the DMV to waive the fee for
an original or replacement identification card requested
for satisfying this voter identification requirement.
BACKGROUND
Felon Voter Eligibility in Other States . According to the
National Conference of State Legislatures (NCSL) and
ProCon.org, individuals with felony convictions are barred
from voting as follows:
30 states bar convicted felons who are in prison, on
parole or on probation from voting (this bill would
include California in this category).
5 states (including California) bar convicted felons who
are in prison or on parole from voting.
13 states and the District of Columbia bar convicted
felons who are in prison from voting.
2 states (Maine and Vermont) do not bar convicted felons
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from voting even while they are in prison.
Voting By Fax . In September 2003, then Secretary of State
(SOS) Kevin Shelley issued a directive to all county
elections officials requiring the counties to accept
absentee ballots returned by fax for the October 7, 2003
statewide recall election. In issuing this directive, the
SOS specifically noted that the compressed schedule for
preparing for the election made it difficult to get ballots
to overseas voters in time for those ballots to be cast and
returned by mail by Election Day. This directive marked
the first time in state history that any California voters
were allowed to cast a ballot by fax.
The following year, the Legislature approved and the
Governor signed AB 2941 (Bates), Chapter 821 of 2004, which
permits special absentee voters who are temporarily living
outside the United States to return their ballots by
facsimile transmission. AB 2941 was modeled after the
procedures adopted by the SOS for the 2003 recall election
for handling absentee ballots returned by fax. AB 2941 was
intended to accommodate voters who, due to potential delays
in international mail delivery and structural barriers
present in combat areas, may not be able to receive, vote,
and return an absentee ballot in the 60-day period provided
for overseas absentee voters. AB 223 (S. Runner), Chapter
359 of 2007, extended the provisions of AB 2941 that allow
certain absentee ballots to be returned by fax to include
military voters who are called for military service in the
last seven days before an election. Any voter in this
situation would be allowed to apply for an absentee ballot
by fax, and would be allowed to return that absentee ballot
by fax as well.
Voter Identification . The Help America Vote Act of 2002
(HAVA) required states to adopt certain voter
identification requirements. Specifically, first time
voters who register by mail and didn't include verification
with their registration form must provide photo
identification, or a copy of a utility bill, bank
statement, government check, paycheck, or other government
document showing the name and address of the applicant when
they go to vote.
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According to the National Conference of State Legislatures
(NCSL), 22 states have broader voter identification
requirements than what HAVA mandates. All voters in these
states are asked to show identification prior to voting -
five of these states (Florida, Georgia, Hawaii, Indiana,
and Louisiana) specify that voters must show a photo
identification, while the other 17 states accept additional
forms of identification that don't necessarily include a
photo.
COMMENTS
1.According to the author : There is no way to verify that a
person casting a ballot at the polling place is actually
the voter they claim to be. Voter identification
requirements reduce the ability of individuals to cast
ballots in another voter's name. Some military voters do
not have enough time to receive and return their vote by
mail ballots before the polls close on Election Day
unless these military voters sacrifice their right to a
secret ballot to the Registrar of voters. While
California law currently requires incarcerated and
paroled felons to repay their debt to society by
completing their sentences in order to regain their
ability to vote, there is a loophole that allows
probationers to vote even from the first day of their
sentence and even if serving probation while being held
in county jail. The criteria to determine the validity
of a vote by mail ballot is too weak to be effective in
protecting voters against someone else casting a vote by
mail ballot in their name. Adding a requirement of a
state driver's license number, state identification card
number, or federal Social Security number is a more
accurate way to verify a voter's identity since those
numbers are more difficult to obtain.
2.Should Persons on Probation Be Prohibited From Voting ?
Probation may be granted by courts if the interest of
justice would best be served and the purpose of probation
is generally described as rehabilitation. Generally
speaking, probation occurs for the conviction of first
offenses and less serious felonies. Should the
fundamental constitutional right to vote, be denied to
individuals that the legal system has determined can be
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safely returned to the community on probation?
3.A Solution in Search of a Problem ? Requiring photo
identification for polling place voters only addresses
the type of potential fraud whereby an individual claims
to be someone they are not and attempts to vote as that
person. However, the author has not provided, nor is the
Committee otherwise aware of, any evidence that voter
fraud of that type has been occurring in California.
4.What About Bob ? This bill provides that the name on the
voter's identification must conform to the name in their
voter registration record. This requirement could
therefore disenfranchise otherwise qualified voters whose
voter registration records do not reflect a recent name
change due to marriage or other reason. It could also
similarly disenfranchise persons whose identification
contains their legal name (e.g., Robert, James,
Catherine, Elizabeth, etc.) but who registered to vote
under a commonly used nickname (e.g., Bob, Jimmy, Cathy,
Betty, etc.).
5.Free State ID Cards . According to the Department of
Motor Vehicles, it is difficult to estimate how many
identification cards they would now have to issue at no
fee under this bill, but if 50% of the cards issued in
fiscal year 2007-08 qualified, the revenue loss would be
$15.6 million.
6.In-State Military but not Overseas Spouses ? Under this
bill, it is unclear how the elections official would be
able to differentiate between VBM ballots that are
eligible to be received after Election Day and those that
are not, especially since it does not require these
military voters to be overseas in order to qualify.
Furthermore, this bill only applies to members of a
uniformed service on active duty and, unlike the current
definition of "special absentee voter" would not apply to
a civilian voter temporarily living overseas, a voter
serving on a merchant vessel documented under the laws of
the United States, or a spouse or dependent of a member
of the armed forces.
7.How Late is Too Late ? Requiring elections officials to
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accept VBM ballots up to 21 days after the election could
jeopardize the ability of elections officials to certify
the election by the current 28-day deadline. Any
jurisdiction using an instant-runoff (IRV) or ranked
choice (RCV) election system would be additionally
impacted. Currently, the City and County of San
Francisco elects its local candidates via RCV while the
cities of Berkeley, Oakland, and San Leandro are expected
to start using a RCV system in 2010.
8.Clean Up . Section 4 of this bill appears to be
superfluous in light of the most recent amendments.
9.Prior and Related Legislation . The portion of this bill
related to the eligibility to vote of persons on
probation for the conviction of a felony is similar to AB
677 (Conroy) of 1996 which died on the Senate
Appropriations Committee suspense file. This provision
is also found in SB 631 (Walters) which is also pending
before this committee as well as AB 1308 (Hagman) and AB
1415 (Adams) which are pending in the Assembly Committee
on Elections and Redistricting.
The portion of this bill relating to voter identification
is similar to numerous previous bills including SB 173
(Harman) of 2007 which failed passage in this committee.
This provision is also found in SB 465 (Huff) which is
also pending before this committee as well as AB 1356
(Berryhill), AB 1399 (Anderson) and AB 1415 (Adams) which
are pending in the Assembly Committee on Elections and
Redistricting.
The portion of this bill related to military VBM ballots is
similar to SB 582 (Dutton) which is also pending before
this committee as well as AB 1367 (Fletcher) and AB 1415
(Adams) which are pending in the Assembly Committee on
Elections and Redistricting.
The portion of this bill related to information on VBM
ballot envelopes is similar to AB 1424 (Knight) and AB
1415 (Adams) which are pending in the Assembly Committee
on Elections and Redistricting.
POSITIONS
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Sponsor: Author
Support: None received
Oppose: All of Us or None
American Civil Liberties Union
Asian Americans for Civil Rights and Equality
California Coalition for Women Prisoners
California Immigrant Policy Center
Drug Policy Alliance Network
Equal Justice Society
Free Battered Women
Families to Amend California's Three Strikes
Justice Now
Lawyers' Committee for Civil Rights of the San
Francisco Bay Area
Legal Services for Prisoners with Children
National Employment Law Project
Ordain Training Center
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