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8/6/2019 Fact-Checking Californias Secretary of State: An Analysis of the Evidence Presented for Senate Bill 168
1/47
California
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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.
98
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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ATruthinCopyritranspart
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