Fact-Checking California’s Secretary of State
Fact-Checking California’s Secretary of State:
An Analysis of the Evidence Presented for Senate Bill 168
California is known throughout the world as a leader in the use of citizen initiative and referendum. Polls consistently show that Californians overwhelmingly support their right to petition state laws, constitutional amendments, and acts of the Legislature onto the ballot. However, citizens from across the political spectrum believe the process could be reformed to better serve the people.
On July 15, 2011, the California Assembly passed Senate Bill 168 and sent it to Governor Jerry Brown’s desk. According to the bill summary prepared by the California Legislative Counsel, the bill “would provide that it is a misdemeanor for a person to pay or to receive money or any other thing of value based on the number of signatures obtained on a state or local initiative, referendum, or recall petition and would prescribe penalties for doing so. By creating a new crime, the bill would impose a state-mandated local program.”
According to the Legislative Counsel a “new crime” is created by the bill, with fines as high as $25,000 and imprisonment of up to one year in a county jail or both for those found guilty of paying by the signature. Anyone found guilty of accepting per-signature payment would be subject to a fine of up to $1,000 and imprisonment of up to six months in a county jail or both.
Supporters of SB 168 argue that the bill is aimed at preventing fraud, and that payment based on the productivity of petition circulators encourages fraudulent conduct. Opponents counter that there is no evidence indicating that payment to people circulating petitions based on the number of signatures obtained increases or contributes to fraudulent behavior and they point to a federal court decision in Colorado recently blocking enforcement of a similar, though less severe law, on constitutional grounds.
Legislators relied on testimony from Secretary of State Debra Bowen and her office that efforts of the state Elections Fraud Investigation Unit (EFIU) had resulted in 33 convictions for “falsifying petitions” between 1994 and 2010. For months Citizens in Charge Foundation has been seeking more detailed information on these convictions from the Secretary of State under California’s Public Records Act. So far, the documents obtained indicate that the conviction data provided by the Secretary of State may not be accurate.
Less Than 33
Through documents obtained from Bowen’s office thus far, it appears that a significant percentage of the people counted in the 33 alleged petition fraud convictions were found guilty of offenses not related to initiative, referendum or recall petitions. On May 23, 2011, in response to our request for information on the 33 cited convictions, the Secretary of State provided copies of 21 pages of press releases containing information about a total of 19 individuals. The Secretary indicated that the press releases were used in counting 33 cases of falsifying petitions, meaning that presumably the records covered 19 of the 33 cases.
On May 27, 2011 the Secretary’s office provided additional information, writing:
Of those 33 cases, 18 case records have been destroyed because they are over ten years old, in accordance with our retention policy. Of the 15 remaining case files, only five contain court documents that identify convictions.
Two of the individuals already identified from the press releases were included in the five additional documents. One of these two individuals was a person convicted of a non-initiative petition related crime.
A further analysis of the press releases provided by the Secretary of State’s office shows that five of the nineteen cases weren’t actually related to falsifying petitions:
• Two people were convicted of forgery on nominating petitions, which are governed by a different section of the Elections Code and not addressed by SB 168 at all.
• One person was convicted of casting two ballots during the 1996 general election—something not related to petitioning of any kind.
• One person was convicted of voter registration fraud—again unrelated to petitioning and not covered by SB 168.
• One individual was convicted of misusing petition information after he used a petition signer’s information to ask her for a date. No falsification or fraud was alleged.
Adding It Up
In testifying before the Legislature, California Secretary of State Debra Bowen and her office cited 33 convictions for falsifying petitions over a 16 year period as justification for passage of Senate Bill 168, which regulates the circulating of petitions for initiative, referendum, and recall campaigns. To date, the Secretary’s office has provided documentation that appears to cover 22 of the 33 alleged convictions. The records provided show that at least five of those 22 convictions were for crimes not addressed by Senate Bill 168 because its provisions don’t affect people circulating petitions to nominate candidates for the legislature or other elected positions. The resulting error rate among the 22 documented cases is 23 percent. In other words, roughly one quarter of the documented cases were of crimes completely unrelated to the legislation they were cited to support.
If cases for which some record is available (in the form of press releases) were counted incorrectly, it draws into serious question whether the 11 cases, for which there appear to be no records, were in fact related to initiative, referendum or recall petitions and, therefore, relevant to Senate Bill 168.
Even if all of the 11 remaining cases, for which no documents have been provided, were related to initiative and referendum petitions, the resulting rate of fraud is still surprisingly low. Assuming that no more than five cases were unrelated, that leaves a fraud rate of 1.75 cases per year (1994-2010). Put in perspective, the Secretary’s office has indicated that state officials verified at least 26,541,044 signatures—just over 4.4 million per year—between 2003 and 2008 alone. Taking into account the rate of 1.75 cases of fraud per year, approximately 2.3 million signatures are collected for every one instance of fraud. In terms of crime rate statistics, the fraud rate since 1994 is just over 0.005 per 100,000.
Fraud Drops Sharply
All of the fraud convictions are the work of the Election Fraud Investigation Unit, which began its operation in 1994. According to the Secretary of State, the bulk of the 33 alleged convictions were prosecuted in the early years of the state’s 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, referendums and recalls: an average of 3.3 convictions a year. In the decade that followed, from 2001 to 2010, there were only five total convictions related to fraud in initiative, referendum and recall petitioning, or one conviction every two years.
Over time, the rate of convictions has declined quite significantly. For the last decade, the yearly rate of convictions dropped by a whopping 85 percent from what it measured from 1994 to 2000. Assuming the Secretary of State’s office has exercised a relatively consistent level of diligence in investigating and prosecuting petition-related offenses since 1994, it suggests that the decline in convictions for fraud is a result of the success of earlier prosecutions and convictions. The enforcement of longstanding petition laws appears to have already provided significant and effective deterrence against breaking petition rules.
Citizens in Charge Foundation is now working to obtain additional records from Secretary of State Bowen’s office but, based on what has been released so far, the actual number of fraud prosecutions in California is significantly lower than the number presented to the legislature by the Secretary of State in support of SB 168: lower by 23 percent.
Additionally, the statistics released by Secretary Bowen’s office concerning fraud convictions involving initiative, referendum and recall petitions strongly suggest that a new law is simply not needed, because prosecutions and convictions won in the 1990s may be responsible for a dramatic 85 percent reduction in instances of verified fraud.
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“Fact-Checking California’s Secretary of State: An Analysis of the Evidence Presented for Senate Bill 168” is part of Citizens in Charge Foundation’s Truth in Governance Project. Truth in Governance produces fact-based reports on the initiative and referendum process in the United States. Truth in Governance reports research and quantify cases of ballot initiative fraud, identify sources of initiative campaign funding, and provide information on legal precedents and state-by-state initiative procedures. For more information, visit the project homepage.