BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 547 (Gatto)
As Amended June 7, 2011
Hearing date: June 14, 2011
Elections Code
MK:dl
VOTING
HISTORY
Source: Author
Prior Legislation: None
Support: AARP
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD IT BE A MISDEMEANOR FOR A PERSON PROVIDING CARE OR
SUPERVISION TO AN ELDER IN A STATE-LICENSE FACILITY OR PROGRAM TO
COERCE OR DECEIVE THE ELDER INTO VOTING FOR OR AGAINST A CANDIDATE
OR MEASURE CONTRARY TO THE ELDER'S INTENT OR IN THE ABSENCE OF ANY
INTENT OF THE ELDER REGARDING THE VOTE?
PURPOSE
The purpose of this bill is to make it a misdemeanor for a care
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provider in a state-licensed facility to coerce an elder into
voting for or against a candidate or measure contrary to the
elder's intent.
Existing law provides that any person who commits fraud or
attempts to commit fraud, and any person who aids or abets fraud
or attempts to aid or abet fraud, in connection with any vote
cast, to be cast, or attempted to be cast, is guilty of a
felony, punishable by imprisonment for 16 months or two or three
years. (Elections Code � 18500.)
Existing law provides every person is guilty of a felony
punishable by imprisonment 16 months or two or three years who
furnishes any voter wishing to vote, who cannot read, with a
ballot, informing or giving that voter to understand that it
contains a name written or printed thereon different from the
name which is written or printed thereon, or defrauds any voter
at any election by deceiving and causing him or her to vote for
a different person for any office than he or she intended or
desired to vote for. (Elections Code � 18573.)
Existing law provides "elder" means any person residing in this
state, 65 years of age or older. (Welfare and Institutions Code
� 15610.27.)
This bill provides that a person is guilty of a misdemeanor who,
while providing care or direct supervision to an elder in a
state-license or state-subsidized facility or program, coerces
or deceives the elder into voting for or against a candidate or
measure contrary to the elder's intent or in the absence of any
intent of the elder regarding that vote.
This bill provides that the penalty would be a fine not to
exceed $10,000 for each vote cast.
This bill provides that the definition of elder has the same
meaning as set forth in Welfare and Institutions Code Section
15610.27.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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1. Need for This Bill
According to the author:
With the state's population of senior citizens over the
age of 65 expected to double over the next twenty years,
policy makers must now start to make forward looking
policy changes to anticipate the needs of that
demographic in a number of policy areas. Though most of
these discussions have centered on subjects such as
health care and retirement benefits, one area that is
equally deserving of consideration is voting and voting
rights of this population.
With a rising number of our seniors finding themselves
in living situations where they are under continuous
care and/or supervision, there has been a growing body
of work by scholars and policy makers studying how to
best protect the voting rights of this population when
some may find themselves in living situations where
there is a danger of intimidation, deception, or
coercion when it comes to participation in elections.
Congress has even recognized this as an issue of
importance, commissioning a report by the General
Accounting Office (GAO) on the integrity of the voting
process in long-term care facilities �Elderly Voters:
Information on Promising Practices Could Strengthen the
Integrity of the Voting Process in Long-term Care
Facilities (GAO-10-6, Nov. 2009)]. The report noted:
?the number of elderly people who exercise their
right to vote through alternative voting methods,
such as absentee, early, and Election Day mail-in
ballots may grow as more elderly individuals
reside in long-term care facilities. These
residents may also have limited dexterity,
impaired eyesight, or cognitive impairments, such
as dementia, that can make them dependent on
others to read or mark a ballot, regardless of
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where the ballot is cast. This makes them
vulnerable to fraud and undue influence from
relatives, long-term care facility staff, campaign
workers, or candidate supporters, who sometimes
provide assistance when casting their vote.
Another issue relating to senior citizens and voting has
to do with those who suffer from Alzheimer's disease or
dementia in nursing homes. There have been instances
documented in the national press of staff requesting
absentee ballots for patients and submitting the ballots
to voting officials to be counted.
It has been difficult to document more cases of this
phenomenon due to the fact that many of these seniors
are unaware or are simply unable to comprehend that this
deception or coercion is taking place; and even in the
cases where there may be awareness, a senior may be
unable to do anything to rectify the situation,
particularly if there is intimidation going on or if
there are no family members either alive or close by to
turn to.
In order to take a proactive policy stance on the voting
rights of senior citizens, �this bill] would make it a
misdemeanor for anyone providing care or direct
supervision to an individual who is 65 years of age or
to coerce or deceive the individual into voting for or
against a candidate or measure contrary to the
individual's intent. This measure would be an important
first step towards developing a more comprehensive
policy on the voting rights of California's growing
population of senior citizens.
2. New Misdemeanor for a Caregiver to Coerce an Elder to Vote
This bill makes it a misdemeanor for a person who, while
providing care or direct supervision to an elder in a
state-licensed or state-subsidized facility or program, coerces
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or deceives the elder into voting for or against a candidate or
measure contrary to the elder's intent or in the absence of any
intent of the elder regarding that vote. The penalty would be a
fine not to exceed $10,000 for each vote cast.
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Current penalty assessments are approximately $270% <1> so a
$10,000 fine is actually approximately $37,000. This bill makes
the fine up to $10,000 per vote cast, so a caregiver who
collects ballots from a multiple individuals after helping them
vote could be subject to multiple $10,000 fines, plus penalty
assessments, if his or her behavior in getting the person to
vote was found to be coercive. Is this an appropriate fine for
a misdemeanor?
IS A $10,000 FINE PER VOTE CAST AN APPROPRIATE FINE FOR A
MISDEMEANOR VIOLATION OF COERCING AN ELDER IN A CARE HOME TO
VOTE?
3. Fine Only Misdemeanor ?
This bill creates a new misdemeanor with only a fine as a
punishment. Generally, misdemeanors include jail time. Should
this bill provide for up to 6 months in jail along with the fine
of $10,000 per vote cast?
SINCE THIS IS A MISDEMEANOR, SHOULD THERE BE A JAIL PENALTY?
4. Impact on Current Penalties ?
Existing law already makes it a felony to "defraud any voter at
any election by deceiving and causing him or her to vote for a
different person for any office than he or she intended or
desired to vote for." (Elections Code �18573) This would
include defrauding an elder to vote for a different person than
he or she intended to vote and thus could overlap with this bill
in which case the prosecutor could be forced to charge the
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<1> Until the budget year 2002-2003, there was 170% in penalty
assessments applied to every fine, the current penalty
assessments are approximately 270%. (See Penal Code � 1464;
Penal Code � 1465.7; Penal Code � 1465.8 Government Code �
70372; Government Code � 7600.5 Government Code � 76000 et seq;
Government Code � 76104.6)
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misdemeanor. In order to avoid that potential problem, this
bill should be amended to say: "Nothing in this section shall
preclude prosecution under any other applicable section."
SHOULD THE BILL MAKE IT CLEAR THAT IT IS NOT INTENDED TO
PRECLUDE PROSECUTION UNDER ANY OTHER SECTION?
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