Fact-Checking California’s Secretary of State: An Analysis of the Evidence Presented for Senate Bill 168

8/6/2019 Fact-Checking Californias Secretary of State: An Analysis of the Evidence Presented for Senate Bill 168

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wereusedincounting33casesoffalsifyingpetitions,meaningthatpresumablytherecordscovered19

ofthe33cases.

OnMay27,2011theSecretarysofficeprovidedadditionalinformation,writing:

Ofthose33cases,18caserecordshavebeendestroyedbecausetheyareovertenyearsold,inaccordancewithourretentionpolicy.Ofthe15remainingcasefiles,

only

five

contain

court

documents

that

identify

convictions.

Twoof the individualsalready identified from thepress releaseswere included in the fiveadditional

documents.Oneof these two individualswasa person convicted of anoninitiativepetition related

crime.

AfurtheranalysisofthepressreleasesprovidedbytheSecretaryofStatesofficeshowsthatfiveofthe

nineteencaseswerentactuallyrelatedtofalsifyingpetitions:

Two people were convicted of forgery on nominating petitions, which are governed by a

differentsectionoftheElectionsCodeandnotaddressedbySB168atall.

Onepersonwasconvictedofcastingtwoballotsduringthe1996generalelectionsomething

notrelatedtopetitioningofanykind.

Onepersonwasconvictedofvoter registration fraudagainunrelated topetitioningandnot

coveredbySB168.

Oneindividualwasconvictedofmisusingpetitioninformationafterheusedapetitionsigners

informationtoaskherforadate.Nofalsificationorfraudwasalleged.

AddingItUpIn testifyingbefore theLegislature,CaliforniaSecretaryofStateDebraBowenandherofficecited33

convictionsforfalsifyingpetitionsovera16yearperiodasjustificationforpassageofSenateBill168,

whichregulatesthecirculatingofpetitionsforinitiative,referendum,andrecallcampaigns.Todate,the

Secretarysofficehasprovideddocumentationthatappearstocover22ofthe33allegedconvictions.

Therecordsprovidedshowthatatleastfiveofthose22convictionswereforcrimesnotaddressedby

SenateBill168because itsprovisionsdontaffectpeoplecirculatingpetitionstonominatecandidates

forthelegislatureorotherelectedpositions.Theresultingerrorrateamongthe22documentedcasesis

23percent. Inotherwords,roughlyonequarterof thedocumentedcaseswereofcrimescompletely

unrelatedtothelegislationtheywerecitedtosupport.

Ifcasesforwhichsomerecord isavailable(inthe formofpressreleases)werecounted incorrectly, it

drawsintoseriousquestionwhetherthe11cases,forwhichthereappeartobenorecords,wereinfact

relatedtoinitiative,referendumorrecallpetitionsand,therefore,relevanttoSenateBill168.

Even if allof the 11 remaining cases, forwhichnodocumentshavebeenprovided,were related to

initiativeandreferendumpetitions,theresultingrateoffraudisstillsurprisinglylow.Assumingthatno

morethanfivecaseswereunrelated,thatleavesafraudrateof1.75casesperyear(19942010).Putin

perspective, the Secretarys office has indicated that state officials verified at least 26,541,044

signaturesjustover4.4millionperyearbetween2003and2008alone.Takingintoaccounttherate


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of1.75casesoffraudperyear,approximately2.3millionsignaturesarecollectedforeveryoneinstance

offraud.Intermsofcrimeratestatistics,thefraudratesince1994isjustover0.005per100,000.

FraudDropsSharplyAll of the fraud convictions are thework of the Election Fraud Investigation Unit,which began its

operation in 1994.According to the Secretary of State, the bulk of the 33 alleged convictionswere

prosecuted

in

the

early

years

of

the

states

new

investigation

and

prosecution

program.

In

fact,

in

the

seven years from 1994 to 2000, there were 23 convictions for fraud in petitions for initiatives,

referendumsandrecalls:anaverageof3.3convictionsayear.Inthedecadethatfollowed,from2001to

2010, there were only five total convictions related to fraud in initiative, referendum and recall

petitioning,oroneconvictioneverytwoyears.

Overtime,therateofconvictionshasdeclinedquitesignificantly.Forthelastdecade,theyearlyrateof

convictionsdroppedbyawhopping85percentfromwhatitmeasuredfrom1994to2000.Assumingthe

Secretaryof Statesofficehas exercised a relatively consistent levelofdiligence in investigating and

prosecutingpetitionrelatedoffensessince1994,itsuggeststhatthedeclineinconvictionsforfraudisa

resultofthesuccessofearlierprosecutionsandconvictions.Theenforcementoflongstandingpetition

laws appears to have alreadyprovided significant and effective deterrence against breaking petition

rules.

InvestigationOngoingCitizens in Charge Foundation is nowworking to obtain additional records from Secretary of State

Bowensofficebut,basedonwhathasbeenreleasedsofar,theactualnumberoffraudprosecutionsin

CaliforniaissignificantlylowerthanthenumberpresentedtothelegislaturebytheSecretaryofStatein

supportofSB168:lowerby23percent.

Additionally, thestatisticsreleasedbySecretaryBowensofficeconcerningfraudconvictions involving

initiative,referendumandrecallpetitionsstronglysuggestthatanewlawissimplynotneeded,because

prosecutionsandconvictionswoninthe1990smayberesponsibleforadramatic85percentreduction

ininstancesofverifiedfraud.


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AppendicesA. CopyoftheenrolledversionofSenateBill168assenttoGovernorJerryBrown

B. CopyofthefinalflooranalysisforSenateBill168

C. ThedocumentsproducedbySecretaryofStateDebraBowensofficeinsupportoftheclaim

indicatedinthelegislativeanalysisthattherewere33convictionsforfalsifyingpetitions

between1994and2010.


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Senate Bill No. 168

Passed the Senate May 9, 2011

Secretary of the Senate

Passed the Assembly July 14, 2011

Chief Clerk of the Assembly

This bill was received by the Governor this day

of , 2011, at oclock m.

Private Secretary of the Governor


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CHAPTER

An act to add Section 102.5 to the Elections Code, relating topetitions.

legislative counsels digest

SB 168, Corbett. Petitions: compensation for signatures.Under existing law, a person who is a voter or is qualifed to

register to vote in this state may circulate an initiative orreferendum petition, and a person who is a voter may circulate arecall petition.

This bill would provide that it is a misdemeanor for a person topay or to receive money or any other thing of value based on thenumber of signatures obtained on a state or local initiative,referendum, or recall petition and would prescribe penalties fordoing so. By creating a new crime, the bill would impose a

state-mandated local program.The California Constitution requires the state to reimburse localagencies and school districts for certain costs mandated by thestate. Statutory provisions establish procedures for making thatreimbursement.

This bill would provide that no reimbursement is required bythis act for a specifed reason.

The people of the State of California do enact as follows:

SECTION 1. Section 102.5 is added to the Elections Code, toread:

102.5. (a) It shall be unlawful for a person to pay or to receivemoney or any other thing of value based on the number ofsignatures obtained on a state or local initiative, referendum, orrecall petition.

(b) Violation of this section shall be a misdemeanor, as follows:(1) A person or organization who pays a person based on the

number of signatures obtained on a state or local initiative,referendum, or recall petition shall be punished by a fne not toexceed twenty-fve thousand dollars ($25,000), or by imprisonment

98

2SB 168


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in a county jail not to exceed one year, or by both that fne andimprisonment.

(2) A person who is paid based on the number of signaturesobtained on a state or local initiative, referendum, or recall petitionshall be punished by a fne not to exceed one thousand dollars($1,000), or by imprisonment in a county jail not to exceed six

months, or by both that fne and imprisonment.(c) Nothing in this section prohibits the payment for signature

gathering not based, either directly or indirectly, on the numberof signatures obtained on a state or local initiative, referendum, orrecall petition.

SEC. 2. No reimbursement is required by this act pursuant toSection 6 of Article XIIIB of the California Constitution becausethe only costs that may be incurred by a local agency or schooldistrict will be incurred because this act creates a new crime orinfraction, eliminates a crime or infraction, or changes the penaltyfor a crime or infraction, within the meaning of Section 17556 ofthe Government Code, or changes the defnition of a crime within

the meaning of Section 6 of Article XIII B of the CaliforniaConstitution.

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SB 1683


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Approved , 2011

Governor


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BILL ANALYSIS

SB 168

Page 1

SENATE THIRD READING

SB 168 (Corbett)

As Introduced February 3, 2011

Majority vote

SENATE VOTE :23-15

ELECTIONS 5-2 APPROPRIATIONS 10-5

-----------------------------------------------------------------

|Ayes:|Fong, Bonilla, Hall, |Ayes:|Fuentes, Bradford, |

| |Mendoza, Swanson | |Charles Calderon, Campos, |

| | | |Gatto, Hall, Hill, Lara, |

| | | |Mitchell, Solorio |

| | | | |

|-----+--------------------------+-----+--------------------------|

|Nays:|Logue, Valadao |Nays:|Harkey, Donnelly, |

| | | |Nielsen, Norby, Wagner |

| | | | |

-----------------------------------------------------------------

SUMMARY : Prohibits a person from paying another person or being

paid based on the number of signatures obtained on an

initiative, referendum, or recall petition. Specifically, this

bill :

1)Makes it unlawful for a person to pay or to receive money or

any other thing of value based on the number of signaturesobtained on a state or local initiative, referendum, or recall

petition.

2)Provides that a violation of this bill is a misdemeanor

subject to the following penalties:

a) For a person or organization that pays someone based on

the number of signatures collected, a fine of up to $25,000

and/or imprisonment in a county jail for up to one year;

and,

b) For a person paid based on the number of signatures

collected, a fine of up to $1,000 and/or imprisonment in a

county jail for up to six months.

3)Provides that nothing in this bill prohibits the payment for

signature gathering that is not based, either directly or

SB 168

Page 2

indirectly, on the number of signatures collected on a

petition.

FISCAL EFFECT : According to the Assembly Appropriations

Committee, unknown, likely minor non-reimbursable costs to

cities and counties for prosecution and incarceration, offset to

some extent by fine revenues.

COMMENTS : According to the author, "Some signature gathering

firms compensate circulators based on the number of signatures

they collect. Some circulators reach the deadline to qualify

initiatives by illegally misinforming voters and forging names.

Others have forged signatures onto their petitions by copying

names they chose from a phonebook. Lastly, some have inserted

carbon paper and a second petition behind the original one in

order to collect signatures."

In 1999, the United States Supreme Court examined a Colorado law

that imposed a number of 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.

Although the United States Supreme Court has not ruled on the

constitutionality of prohibiting payment for signature


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collection on a per-signature basis, a number of federal courts

have considered challenges to such laws, with the courts

reaching different conclusions. Federal appellate courts in the

Second, Eighth, and Ninth Circuits upheld laws that prohibited

payments for signature collection on election petitions on a

per-signature basis, while the Sixth Circuit Court of Appeals

struck down a similar law in Ohio. Additionally, a number of

federal district courts have struck down bans on per-signature

payments in other states. In light of the differing opinions

reached by various federal courts on the constitutionality of

laws that prohibit payments on a per-signature basis for

signature gathering on petitions, it is unclear whether a court

challenge to this bill, if enacted, would be successful.

According to the Secretary of State's Election Fraud

Investigation Unit (EFIU), between 1994 and 2010, the EFIUopened 240 cases for falsifying petitions, of which 46 were sent

SB 168

Page 3

to district attorneys for prosecution, resulting in 33

convictions. Since the EFIU was created in 1994, a larger

number of convictions have been obtained for falsified petitions

than for any other election crime except fraudulent voter

registration.

This bill prohibits the payment of individuals on a

per-signature basis for collecting signatures on petitions.

Typically, in California, individuals who are paid to circulate

petitions or register voters on a per-signature or per-piece

basis are independent contractors. However, to the extent that

this bill forces individuals who are paid to circulate petitions

or register voters to be paid an hourly wage, this bill could

also result in these individuals being considered employees

under California law. As such, the individual, corporation, or

group paying individuals to circulate petitions may be required

to pay minimum wage, provide workers' compensation insurance and

unemployment insurance for its employees, and maintain a payroll

system. This may result in higher costs to groups that pay

individuals to circulate petitions. In addition, prohibiting

payment of individuals on a per-signature basis could increase

costs because it may become more difficult to measure the work

product of petition circulators. Potential increased costs may

be partially offset if, by reducing the incentive to submit

fraudulently-obtained signatures, this legislation results inpaid circulators submitting fewer such signatures.

Supporters of this bill contend that paying signature gatherers

on a per-signature basis encourages fraud, because a circulator

who collects more signatures will earn more, and is more likely

to forge signatures or misrepresent the content of a petition in

order to encourage people to sign. Opponents of this bill

contend that outlawing payment for signature collection on a per

signature basis will "make it prohibitively expensive to do an

initiative or a recall and next to impossible to do a

referendum," and argue that there is little evidence that

per-signature payment methods are more prone to fraud than other

methods.

This bill is identical to SB 34 (Corbett) of 2009, which was

vetoed. In his veto message, Governor Schwarzenegger expressed

concern that prohibiting per-signature payments could "make it

more difficult for grassroots organizations to gather the

necessary signatures and qualify measures for the ballot."

SB 168

Page 4

Please see the policy committee analysis for a full discussion

of this bill.

Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094

FN: 0001512


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Documents

Fact-Checking California’s Secretary of State: An Analysis of the Evidence Presented for Senate Bill 168