Existing law permits a person to vote at any election held within the territory within which the person resides and the election is held if the person is qualified and registered to vote. If a person is entitled to vote at an election, existing law makes voting more than once, or attempting to vote more than once, a crime.

This bill would make it a misdemeanor for any person to vote or to attempt to vote both in an election held in this state and in an election held in another state on the same date. The bill would not prohibit a voter from voting in an election held in this state and in another state if one of the elections is an election held in a landowner voting district or any other district for which an elector is not required to be a resident of the district. By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law permits a person to vote at any election held within the territory within which the person resides and the election is held if the person is qualified and registered to vote. If a person is entitled to vote at an election, existing law makes voting more than once, or attempting to vote more than once, a crime.

This bill would make it a misdemeanor for any person to vote or to attempt to vote both in an election held in this state and in an election held in another state on the same date. The bill would not prohibit a voter from voting in an election held in this state and in another state if one of the elections is an election held in a landowner voting district or any other district for which an elector is not required to be a resident of the district. By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law permits a person to vote at any election held within the territory within which the person resides and the election is held if the person is qualified and registered to vote. If a person is entitled to vote at an election, existing law makes voting more than once, or attempting to vote more than once, a crime.

This bill would state the intent of the Legislature to enact legislation that prohibits a person from voting in certain elections or for certain offices in both California and another state.

 THIRD READING  

Bill No: AB 1539

Author: Berman (D), et al.

Amended: 3/23/23 in Assembly

Vote: 21

SENATE ELECTIONS & C.A. COMMITTEE: 7-0, 6/6/23

AYES: Glazer, Nguyen, Allen, McGuire, Menjivar, Newman, Umberg

SENATE PUBLIC SAFETY COMMITTEE: 4-0, 7/11/23

AYES: Bradford, Ochoa Bogh, Skinner, Wiener

NO VOTE RECORDED: Wahab

SENATE APPROPRIATIONS COMMITTEE: 7-0, 9/1/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

ASSEMBLY FLOOR: 66-0, 5/11/23 (Consent) - See last page for vote

SUBJECT: Elections: double voting

SOURCE: Santa Clara District Attorney’s Office

DIGEST:

This bill prohibits a person from voting in an election in California and in an election in another state on the same date.

ANALYSIS:

Existing federal law:

1. Provides that whoever votes more than once in an election, as specified, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
2. Provides that this prohibition applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico.

Existing state law:

1. Defines “election,” for the purposes of the Elections Code, as any election including a primary that is provided for under the Elections Code.
2. Provides that every person is guilty of a crime punishable by imprisonment for 16 months or two or three years, or in a county jail not exceeding one year, who does any of the following:
   1. Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.
   2. Being entitled to vote at an election, votes more than once, attempts to vote more than once, or knowingly hands in two or more ballots folded together at that election.
   3. Impersonates or attempts to impersonate a voter at an election.
3. Requires an affidavit of voter registration to include the voter's place of residence, among other information and defines "residence" for voting purposes as a person's domicile.
4. Provides that for the purposes of the state's election laws, the domicile of a person is that place in which the person’s habitation is fixed, wherein the person has the intention of remaining, and to which, whenever the person is absent, the person has the intention of returning. Provides that at a given time, a person may have only one domicile.
5. Provides that a person who is qualified and registered to vote may vote at any election held within the territory within which the person resides and the election is held.
6. Provides that except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding $1,000, or both.

This bill:

1. Provides that a person who votes or attempts to vote in an election held in this state and in an election held in another state on the same date is guilty of a misdemeanor.
2. Provides that this bill does not prohibit a voter from voting in an election held in this state and an election held in another state on the same date if one of the elections is an election in a landowner voting district or any other district for which an elector is not required to be a resident of the district.

Background

Double Voting. The situation that was the impetus for this bill involved a couple who, on multiple instances between 2010 and 2018, voted in elections held on the same day in both California and Oregon. While it is likely against the law in most cases for a person to vote in an election held in California and in an election held in another state on the same day, it is not necessarily the case that such conduct would violate California law, depending on the domicile of the person involved.

Under California law, a person generally is eligible to vote in an election only if that person resides in the territory where the election is held. State law defines residence for voting purposes in a manner such that a person can have only one residence at a time. Other states generally also require a person to reside in the state in order to vote in elections in the state. Furthermore, while state laws vary in their definitions of “residence” for voting purposes, states generally do provide that a person can have only one residence for voting purposes at a time. Accordingly, it is unlikely that a person would be considered a legal resident of two different states at the same time for voting purposes.

For example, under California and Oregon’s election laws, a person could legally be a resident of California, or a resident of Oregon, but not both at the same time. Furthermore, both California and Oregon make it a crime for a person to vote in an election if the person is not entitled to do so. As a result, if a person votes in an election held on the same day in both California and Oregon, and that person is legally a resident of California, then that person likely has violated Oregon law by voting in an election in Oregon while not being a resident of that state. On the other hand, if the person is legally a resident of Oregon, then the person likely violated California law by voting in an election in California while not a resident of the state.

While it is a crime under California law for a person to vote more than once or to attempt to vote more than once in an election, it appears that this law does not cover a situation where a person votes in California and in another state in elections held on the same day. As detailed above, California law defines the term “election” as “any election…provided for under the Elections Code.” Accordingly, an election held in another state likely would not be considered an “election” under state law, and a person who voted in California and another state on the same day likely would not be considered to have voted more than once in an election for the purpose of California law. Oregon law, on the other hand, expressly prohibits a person from voting or attempting to vote both in an election held in that state and in another state on the same date (Oregon Revised Statutes 260.715). A violation of that prohibition is a felony (Oregon Revised Statutes 260.993). The language in this bill is similar to the language in the Oregon statute, but differs in that the violation is a felony in Oregon law, but a misdemeanor in this bill.

Other States. According to information from the National Conference of State Legislatures (NCSL), while state laws generally prohibit a person from voting more than once in the same election, the statutory language varies from state-to-state. For example, some states explicitly make it a crime for a person to vote in more than one state; other states prohibit voting twice in the same election, but don’t expressly state whether voting in elections in two different states that are held on the same day would be considered voting twice in the same election. NCSL summarizes state laws related to “voting more than once” as follows:

• 13 states explicitly prohibit voting in more than one state: Alabama, Arizona, Colorado, Kansas, Kentucky, Maine, Missouri, New Hampshire, Oregon, South Dakota, Virginia, Washington, and West Virginia.
• Seven states prohibit voting twice within the state or for the same office: Alabama, Delaware, Hawaii, Illinois, Maryland, Mississippi, and West Virginia.
• 32 states and Washington, D.C., prohibit voting twice in the same election: Alaska, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming.
• In Indiana, voting twice is not explicitly mentioned, but a person may not knowingly apply for or receive a ballot in a precinct other than the precinct in which the person is entitled to vote. In addition, registering to vote more than once is a misdemeanor.

Federal Prohibition. As detailed above, existing federal law—as part of the federal Voting Rights Act—prohibits voting more than once in an election. NCSL notes, however, that it “has been unable to find a prosecution of any person under that statute for voting in multiple states at the same time (for instance, voting for state and federal offices in the 2016 election in State X and for state offices in State Y, when the voter owns residences in both states),” and concludes that “the question of whether federal law prohibits such voting practices remains unresolved.”

The Elections Crimes Branch of the Public Integrity Section of the United States Department of Justice (USDOJ) publishes a periodic Federal Prosecution of Election Offenses Manual that is designed to “assist[] federal prosecutors and investigators to discharge the responsibility of the Department of Justice in attacking corruption of the election process with all available statutes and theories of prosecution.” The most recent edition of that manual, published in December 2017, discusses the federal prohibition against voting more than once in an election not in the context of a person who casts multiple ballots under the person’s own name in a single election. Instead, the manual identifies the prohibition as “most useful as a statutory weapon against frauds that do not involve the participation of voters in the balloting acts attributed to them.” Specifically, the manual states that “[m]ost cases prosecuted under the multiple-voting statute have involved defendants who physically marked ballots outside the presence of the voters in whose names they were cast – in other words, without the voters’ participation or knowledge.” The manual further notes that the federal prohibition “may also be applied successfully to schemes when the voters are present but do not participate in any way, or otherwise consent to the defendant’s assistance, in the voting process.” In light of this discussion, it is unclear whether the USDOJ views the federal prohibition against voting more than once in an election as providing a basis for prosecuting a person who votes under the person’s own name in more than one state at the same federal election.

Elections in Landowner Voting Districts. As detailed above, state law generally requires a person to be a resident of a jurisdiction in order to vote in elections in that jurisdiction. The one notable exception is for elections in landowner voting districts, where only landowners in the district are eligible to vote in district elections. For some landowner voting districts, a landowner is not required to reside in the district in order to be eligible to vote in district elections.

State law authorizes the creation of landowner voting districts in recognition of the fact that certain special districts with limited powers have a disproportionate effect on landowners. In some landowner voting districts, the economic burden and benefit of the district's operation may be entirely limited to landowners. In such a situation, landowners may be willing to form a special district (and thus to bear the costs of operating the district) only if they are guaranteed to have operational control over the district. The United States Supreme Court has found that landowner voting districts can be constitutionally permissible only where a district does not "exercise what might be thought of as 'normal governmental' authority, but its actions disproportionately affect landowners." Salyer Land Co. v. Tulare Water District (1973) 410 US 719. In California, levee districts, water storage districts, reclamation districts, and some water districts are landowner voting districts.

Because a person does not necessarily need to be a resident of landowner voting district in order to be eligible to vote in the district’s elections, it is possible that a person could be legally entitled to vote in an election in a landowner voting district in California while residing in another state and voting in an election in that state on the same day. To account for that scenario (and for elections in similar districts in other states), this bill provides that it does not apply to a situation where a person votes in elections in California and another state on the same day, but one of the elections is in a district for which an elector is not required to be a resident of the district.

Comments

According to the author, voter fraud is exceedingly rare and it is vitally important that any instances not be used to promote baseless claims to undermine confidence in our elections. Nevertheless, it recently came to my attention that the Santa Clara County District Attorney discovered that a couple residing in the county had voted in both California and Oregon in November 2010, 2012, 2014, 2016, and 2018. After discovering this pattern of multi-state double voting, the District Attorney also found that California law does not prohibit this conduct. Thirteen other states currently prohibit such conduct and AB 1539 adds California to the list of states where someone cannot vote or attempt to vote in two elections that are occurring on the same day.

Related/Prior Legislation

AB 31 (Cristina Garcia, 2015), among other provisions, would have required the Attorney General to investigate and prosecute a violation of fraudulent voting or attempting to vote in a jurisdiction in which the person does not reside for voting purposes. AB 31 was set, but not heard by the Assembly Elections and Redistricting Committee.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• The Office of the Secretary of State (SOS) indicates that it would incur first-year costs of $2.9 million, and $2.1 million annually thereafter, as a result of the bill (General Fund). Staff notes that this bill would not impose new statutory requirements on SOS.
• This bill would result in unknown court workload cost pressures to the extent this bill results in increased litigation as a result of its creation of a new misdemeanor for voting in two states on the same day. (Trial Court Trust Fund, General Fund). See Staff Comments for additional details.

SUPPORT: (Verified 9/1/23)

Santa Clara District Attorney’s Office (source)

American Federation of State, County, and Municipal Employees

OPPOSITION: (Verified 9/1/23)

Election Integrity Project California, Inc.

ARGUMENTS IN SUPPORT: In a letter supporting AB 1539, American Federation of State, County, and Municipal Employees writes, in part, the following:

Election administration is designated to the individual states in the United States Constitution. As such, there are few systems in place to help states coordinate and ensure that voters who maintain residences in multiple states are only voting in one state. During election years, residents who have recently moved may remain on their previous state’s voter rolls. This has been proven to be exploited, as occurred recently in Santa Clara County where a resident who also maintains a home in Oregon voted in both states during the same election.

Although existing law bans the phenomenon of double voting in California’s jurisdiction, it does not cover instances of voting both in California and another state. AB 1539 would ensure the phenomenon of “multi-state double voting” is banned in California, thus closing a loophole in our electoral process. By passing AB 1539 California would join with 13 other states that ban multi-state double voting. With bills like AB 1539, we can help with the integrity of California elections and our democratic process.

ARGUMENTS IN OPPOSITION: In a letter opposing AB 1539, Election Integrity Project California, Inc. writes, in part, the following:

Voters need to know that their state officials, legislators and law enforcement officials are protective of their rights, especially their civil right to be secure in knowing that each citizen gets ONE vote, that no one is more “equal” than anyone else, and that the penalty for breaching that trust is severe enough to be a powerful deterrent.

The connotation of “misdemeanor” is a simple misstep, an “oops”, a slight lapse in judgement that has minor impact on any individual or society. It is a deed that lacks malicious intent and is easily forgivable, to be “paid” for with a sensible fine and/or a little community service.

Doing anything with the intent to manipulate the electoral process or the outcome of any election is NOT an “oops.” It does NOT lack malicious intent and IS an attack on the very democratic process at the heart of our great Republic. Under current CA law, voting twice, whether within the same state or in two different states, is a felony. It needs to remain a felony, not be downgraded to a simple misdemeanor.

ASSEMBLY FLOOR: 66-0, 5/11/23

AYES: Addis, Aguiar-Curry, Alanis, Bains, Bennett, Berman, Boerner, Bryan, Calderon, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Low, Lowenthal, Maienschein, Mathis, McKinnor, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Weber, Wicks, Wilson, Zbur, Rendon

NO VOTE RECORDED: Alvarez, Arambula, Bauer-Kahan, Bonta, Juan Carrillo, Cervantes, Dixon, Hart, Lee, McCarty, Ortega, Jim Patterson, Ward, Wood

Prepared by: Scott Matsumoto / E. & C.A. / (916) 651-4106

9/2/23 16:58:31

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 1539 (Berman) - Elections: double voting

Bill Summary:

AB 1539 would prohibit a person from voting in an election in California and in an election in another state on the same date.

Fiscal Impact:

• The Office of the Secretary of State (SOS) indicates that it would incur first-year costs of $2.9 million, and $2.1 million annually thereafter, as a result of the bill (General Fund). Staff notes that this bill would not impose new statutory requirements on SOS.
• This bill would result in unknown court workload cost pressures to the extent this bill results in increased litigation as a result of its creation of a new misdemeanor for voting in two states on the same day. (Trial Court Trust Fund, General Fund). See Staff Comments for additional details.

Background:

Under current law, a person generally is eligible to vote in an election only if that person resides in the territory where the election takes place. State law defines residence for voting purposes in a manner such that a person can have only one residence at a time. Other states generally also require a person to reside in the state in order to vote in elections in the state. Furthermore, while state laws vary in their definitions of “residence” for voting purposes, states generally do provide that a person can have only one residence for voting purposes at a time. Consequently, it is unlikely that a person would be considered a legal resident of two different states at the same time for voting purposes.

While it is a crime under state law for a person to vote more than once or to attempt to vote more than once in an election, it appears that this law does not cover a situation where a person votes in California and in another state in elections held on the same day. Current law defines the term “election” as “any election…provided for under the Elections Code.” Accordingly, an election held in another state likely would not be considered an “election” under state law, and a person who voted in California and another state on the same day likely would not be considered to have voted more than once in an election for the purpose of California law.

Proposed Law: This bill would do the following:

• Provide that a person who votes or attempts to vote in an election held in this state and in an election held in another state on the same date is guilty of a misdemeanor.
• Provide that this bill does not prohibit a voter from voting in an election held in this state and an election held in another state on the same date if one of the elections is an election in a landowner voting district or any other district for which an elector is not required to be a resident of the district.

Related Legislation: AB 31 (Cristina Garcia, 2015), among other provisions, would have required the Attorney General to investigate and prosecute a violation of fraudulent voting or attempting to vote in a jurisdiction in which the person does not reside for voting purposes. The bill was not heard by the Assembly Committee on Elections and Redistricting.

Staff Comments:

SOS indicates that this bill would lead to significant additional workload. Specifically, it would require SOS to (1) coordinate with other states to receive participation history for voters that participated in elections that were held on the same day, (2) compare the voter participation history data for an election on that day, and (3) analyze, research and determine if there were any instances of that type of potential double voting. SOS notes that it would require fourteen additional positions to perform the necessary workload.

For years with presidential elections, any workload resulting from this bill would generally come from (1) day of the general election, when voting occurs in the other 49 states, and (2) the day of the primary election, when considerably fewer than 49 states would be also be conducting their vote. As an example, data from National Conference of State Legislatures indicates that 13 other states will be holding their 2024 primary election on the same date as California. Additionally, there would be workload when voting occurs in the 49 other states during nonpresidential years’ general elections. Consequently, it is unclear what duties the new positions would perform once the workload from these three days per four-year election cycle is completed.

It is unknown how many additional actions would be brought as a result of the implementation of this bill. However, it generally costs about $8,000 to operate a courtroom for one eight-hour day. Although courts are not funded on the basis of workload, increased pressure on the trial courts and staff may create a need for increased funding for courts from the General Fund to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 budget includes an ongoing $105 million backfill from the General Fund in order to address declining revenue to the Trial Court Trust Fund.

Any local government costs resulting from the mandate in this measure are not state-reimbursable because the mandate only involves the definition of a crime or the penalty for conviction of a crime.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 1539 (Berman) - Elections: double voting

Bill Summary:

AB 1539 would prohibit a person from voting in an election in California and in an election in another state on the same date.

Fiscal Impact:

• The Office of the Secretary of State (SOS) indicates that it would incur first-year costs of $2.9 million, and $2.1 million annually thereafter, as a result of the bill (General Fund). Staff notes that this bill would not impose new statutory requirements on SOS.
• This bill would result in unknown court workload cost pressures to the extent this bill results in increased litigation as a result of its creation of a new misdemeanor for voting in two states on the same day. (Trial Court Trust Fund, General Fund). See Staff Comments for additional details.

Background:

Under current law, a person generally is eligible to vote in an election only if that person resides in the territory where the election takes place. State law defines residence for voting purposes in a manner such that a person can have only one residence at a time. Other states generally also require a person to reside in the state in order to vote in elections in the state. Furthermore, while state laws vary in their definitions of “residence” for voting purposes, states generally do provide that a person can have only one residence for voting purposes at a time. Consequently, it is unlikely that a person would be considered a legal resident of two different states at the same time for voting purposes.

While it is a crime under state law for a person to vote more than once or to attempt to vote more than once in an election, it appears that this law does not cover a situation where a person votes in California and in another state in elections held on the same day. Current law defines the term “election” as “any election…provided for under the Elections Code.” Accordingly, an election held in another state likely would not be considered an “election” under state law, and a person who voted in California and another state on the same day likely would not be considered to have voted more than once in an election for the purpose of California law.

Proposed Law: This bill would do the following:

• Provide that a person who votes or attempts to vote in an election held in this state and in an election held in another state on the same date is guilty of a misdemeanor.
• Provide that this bill does not prohibit a voter from voting in an election held in this state and an election held in another state on the same date if one of the elections is an election in a landowner voting district or any other district for which an elector is not required to be a resident of the district.

Related Legislation: AB 31 (Cristina Garcia, 2015), among other provisions, would have required the Attorney General to investigate and prosecute a violation of fraudulent voting or attempting to vote in a jurisdiction in which the person does not reside for voting purposes. The bill was not heard by the Assembly Committee on Elections and Redistricting.

Staff Comments:

SOS indicates that this bill would lead to significant additional workload. Specifically, it would require SOS to (1) coordinate with other states to receive participation history for voters that participated in elections that were held on the same day, (2) compare the voter participation history data for an election on that day, and (3) analyze, research and determine if there were any instances of that type of potential double voting. SOS notes that it would require fourteen additional positions to perform the necessary workload.

For years with presidential elections, any workload resulting from this bill would generally come from (1) day of the general election, when voting occurs in the other 49 states, and (2) the day of the primary election, when considerably fewer than 49 states would be also be conducting their vote. As an example, data from National Conference of State Legislatures indicates that 13 other states will be holding their 2024 primary election on the same date as California. Additionally, there would be workload when voting occurs in the 49 other states during nonpresidential years’ general elections. Consequently, it is unclear what duties the new positions would perform once the workload from these three days per four-year election cycle is completed.

It is unknown how many additional actions would be brought as a result of the implementation of this bill. However, it generally costs about $8,000 to operate a courtroom for one eight-hour day. Although courts are not funded on the basis of workload, increased pressure on the trial courts and staff may create a need for increased funding for courts from the General Fund to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 budget includes an ongoing $105 million backfill from the General Fund in order to address declining revenue to the Trial Court Trust Fund.

Any local government costs resulting from the mandate in this measure are not state-reimbursable because the mandate only involves the definition of a crime or the penalty for conviction of a crime.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 1539 Hearing Date: July 11, 2023

Subject: Elections: double voting

HISTORY

Source: Santa Clara District Attorney

Prior Legislation: None applicable

Support: AFSCME

Opposition: None known

Assembly Floor Vote: 66 - 0

PURPOSE

The purpose of this bill is to prohibit a person from voting in an election in California and in an election in another state on the same date.

Existing law defines “election,” for the purposes of the Elections Code, as any election including a primary that is provided for under the Elections Code. (Elections Code §318)

Existing law provides that every person is guilty of a crime punishable by imprisonment for 16 months or two or three years, or in a county jail not exceeding one year, who does any of the following:

1. Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.
2. Being entitled to vote at an election, votes more than once, attempts to vote more than once, or knowingly hands in two or more ballots folded together at that election.
3. Impersonates or attempts to impersonate a voter at an election. (Elections Code §18560)

Existing law requires an affidavit of voter registration to include the voter's place of residence, among other information. (Elections Code §2150) Defines "residence" for voting purposes as a person's domicile. (Elections Code §349(a))

Existing law provides that for the purposes of the state's election laws, the domicile of a person is that place in which the person’s habitation is fixed, wherein the person has the intention of remaining, and to which, whenever the person is absent, the person has the intention of returning. Provides that at a given time, a person may have only one domicile. (Elections Code §349(b))

Existing law provides that a person who is qualified and registered to vote may vote at any election held within the territory within which the person resides and the election is held. (Elections Code §2000(a))

Existing law provides that except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding $1,000, or both. (Penal Code §19)

Existing federal law provides that whoever votes more than once in an election, as specified, shall be fined not more than $10,000 or imprisoned not more than five years, or both. Provides that this prohibition applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico. (52 USC §10307(e))

This bill provides that a person who votes or attempts to vote in an election held in this state and in an election held in another state on the same date is guilty of a misdemeanor.

This bill provides that this bill does not prohibit a voter from voting in an election held in this state and an election held in another state on the same date if one of the elections is an election in a landowner voting district or any other district for which an elector is not required to be a resident of the district.

COMMENTS

1. Need for This Bill

According to the author:

Voter fraud is exceedingly rare and it is vitally important that any instances not be used to promote baseless claims to undermine confidence in our elections. Nevertheless, it recently came to my attention that the Santa Clara County District Attorney discovered that a couple residing in the county had voted in both California and Oregon in November 2010, 2012, 2014, 2016, and 2018. After discovering this pattern of multi-state double voting, the District Attorney also found that California law does not prohibit this conduct. Thirteen other states currently prohibit such conduct and AB 1539 would add California to the list of states where someone cannot vote or attempt to vote in two elections that are occurring on the same day.

2. Double-Voting

As noted in the author’s statement, the situation that was the impetus for this bill involved a couple who, on multiple instances between 2010 and 2018, voted in elections held on the same day in both California and Oregon. While it is likely against the law in most cases for a person to vote in an election held in California and in an election held in another state on the same day, it is not necessarily the case that such conduct would violate California law, depending on the domicile of the person involved.

Under California law, a person generally is eligible to vote in an election only if that person resides in the territory where the election is held. State law defines residence for voting purposes in a manner such that a person can have only one residence at a time. Other states generally also require a person to reside in the state in order to vote in elections in the state. Furthermore, while state laws vary in their definitions of “residence” for voting purposes, states generally do provide that a person can have only one residence for voting purposes at a time. Accordingly, it is unlikely that a person would be considered a legal resident of two different states at the same time for voting purposes.

For example, under California and Oregon’s election laws, a person could legally be a resident of California, or a resident of Oregon, but not both at the same time. Furthermore, both California and Oregon make it a crime for a person to vote in an election if the person is not entitled to do so. As a result, if a person votes in an election held on the same day in both California and Oregon, and that person is legally a resident of California, then that person likely has violated Oregon law by voting in an election in Oregon while not being a resident of that state. On the other hand, if the person is legally a resident of Oregon, then the person likely violated California law by voting in an election in California while not a resident of the state.

While it is a crime under California law for a person to vote more than once or to attempt to vote more than once in an election, it appears that this law does not cover a situation where a person votes in California and in another state in elections held on the same day. As detailed above, California law defines the term “election” as “any election…provided for under the Elections Code.” Accordingly, an election held in another state likely would not be considered an “election” under state law, and a person who voted in California and another state on the same day likely would not be considered to have voted more than once in an election for the purpose of California law. Oregon law, on the other hand, expressly prohibits a person from voting or attempting to vote both in an election held in that state and in another state on the same date (Oregon Revised Statutes 260.715). A violation of that prohibition is a felony (Oregon Revised Statutes 260.993). This bill would make it a misdemeanor to vote in California and another state on the same day.

3. Other States

According to information from the National Conference of State Legislatures (NCSL), while state laws generally prohibit a person from voting more than once in the same election, the statutory language varies from state-to-state. For example, some states explicitly make it a crime for a person to vote in more than one state; other states prohibit voting twice in the same election, but don’t expressly state whether voting in elections in two different states that are held on the same day would be considered voting twice in the same election. NCSL summarizes state laws related to “voting more than once” as follows:

• 13 states explicitly prohibit voting in more than one state: Alabama, Arizona, Colorado, Kansas, Kentucky, Maine, Missouri, New Hampshire, Oregon, South Dakota, Virginia, Washington, and West Virginia.
  
• Seven states prohibit voting twice within the state or for the same office: Alabama, Delaware, Hawaii, Illinois, Maryland, Mississippi, and West Virginia.
  
• 32 states and Washington, D.C., prohibit voting twice in the same election: Alaska, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming.
  
• In Indiana, voting twice is not explicitly mentioned, but a person may not knowingly apply for or receive a ballot in a precinct other than the precinct in which the person is entitled to vote. In addition, registering to vote more than once is a misdemeanor.
  

4. Federal Prohibition

As detailed above, existing federal law—as part of the federal Voting Rights Act—prohibits voting more than once in an election. NCSL notes, however, that it “has been unable to find a prosecution of any person under that statute for voting in multiple states at the same time (for instance, voting for state and federal offices in the 2016 election in State X and for state offices in State Y, when the voter owns residences in both states),” and concludes that “the question of whether federal law prohibits such voting practices remains unresolved.”

The Elections Crimes Branch of the Public Integrity Section of the United States Department of Justice (USDOJ) publishes a periodic Federal Prosecution of Election Offenses Manual that is designed to “assist[] federal prosecutors and investigators to discharge the responsibility of the Department of Justice in attacking corruption of the election process with all available statutes and theories of prosecution.” The most recent edition of that manual, published in December 2017, discusses the federal prohibition against voting more than once in an election not in the context of a person who casts multiple ballots under the person’s own name in a single election. Instead, the manual identifies the prohibition as “most useful as a statutory weapon against frauds that do not involve the participation of voters in the balloting acts attributed to them.” Specifically, the manual states that “[m]ost cases prosecuted under the multiple-voting statute have involved defendants who physically marked ballots outside the presence of the voters in whose names they were cast – in other words, without the voters’ participation or knowledge.” The manual further notes that the federal prohibition “may also be applied successfully to schemes when the voters are present but do not participate in any way, or otherwise consent to the defendant’s assistance, in the voting process.” In light of this discussion, it is unclear whether the USDOJ views the federal prohibition against voting more than once in an election as providing a basis for prosecuting a person who votes under the person’s own name in more than one state at the same federal election.

5. Elections in Landowner Voting Districts

As detailed above, state law generally requires a person to be a resident of a jurisdiction in order to vote in elections in that jurisdiction. The one notable exception is for elections in landowner voting districts, where only landowners in the district are eligible to vote in district elections. For some landowner voting districts, a landowner is not required to reside in the district in order to be eligible to vote in district elections.

State law authorizes the creation of landowner voting districts in recognition of the fact that certain special districts with limited powers have a disproportionate effect on landowners. In some landowner voting districts, the economic burden and benefit of the district's operation may be entirely limited to landowners. In such a situation, landowners may be willing to form a special district (and thus to bear the costs of operating the district) only if they are guaranteed to have operational control over the district. The United States Supreme Court has found that landowner voting districts can be constitutionally permissible only where a district does not "exercise what might be thought of as 'normal governmental' authority, but its actions disproportionately affect landowners." Salyer Land Co. v. Tulare Water District (1973) 410 US 719. In California, levee districts, water storage districts, reclamation districts, and some water districts are landowner voting districts.

Because a person does not necessarily need to be a resident of landowner voting district in order to be eligible to vote in the district’s elections, it is possible that a person could be legally entitled to vote in an election in a landowner voting district in California while residing in another state and voting in an election in that state on the same day. To account for that scenario (and for elections in similar districts in other states), this bill provides that it does not apply to a situation where a person votes in elections in California and another state on the same day, but one of the elections is in a district for which an elector is not required to be a resident of the district.

6. Argument in Support

AFSCME supports this bill stating:

Election administration is designated to the individual states in the United States Constitution. As such, there are few systems in place to help states coordinate and ensure that voters who maintain residences in multiple states are only voting in one state. During election years, residents who have recently moved may remain on their previous state’s voter rolls. This has been proven to be exploited, as occurred recently in Santa Clara County where a resident who also maintains a home in Oregon voted in both states during the same election.

Although existing law bans the phenomenon of double voting in California’s jurisdiction, it does not cover instances of voting both in California and another state. AB 1539 would ensure the phenomenon of “multi-state double voting” is banned in California, thus closing a loophole in our electoral process. By passing AB 1539 California would join with 13 other states that ban multi-state double voting.

-- END –

SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Steven Glazer, Chair

2023 - 2024 Regular

Bill No: 1539 Hearing Date: 6/6/23

Subject:

DIGEST

This bill prohibits a person from voting in an election in California and in an election in another state on the same date.

ANALYSIS

Existing federal law:

1. Provides that whoever votes more than once in an election, as specified, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
2. Provides that this prohibition applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico.

Existing state law:

1. Defines “election,” for the purposes of the Elections Code, as any election including a primary that is provided for under the Elections Code.
   
2. Provides that every person is guilty of a crime punishable by imprisonment for 16 months or two or three years, or in a county jail not exceeding one year, who does any of the following:
   1. Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.
   2. Being entitled to vote at an election, votes more than once, attempts to vote more than once, or knowingly hands in two or more ballots folded together at that election.
   3. Impersonates or attempts to impersonate a voter at an election.
3. Requires an affidavit of voter registration to include the voter's place of residence, among other information and defines "residence" for voting purposes as a person's domicile.
4. Provides that for the purposes of the state's election laws, the domicile of a person is that place in which the person’s habitation is fixed, wherein the person has the intention of remaining, and to which, whenever the person is absent, the person has the intention of returning. Provides that at a given time, a person may have only one domicile.
5. Provides that a person who is qualified and registered to vote may vote at any election held within the territory within which the person resides and the election is held.
6. Provides that except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding $1,000, or both.

This bill:

1. Provides that a person who votes or attempts to vote in an election held in this state and in an election held in another state on the same date is guilty of a misdemeanor.
2. Provides that this bill does not prohibit a voter from voting in an election held in this state and an election held in another state on the same date if one of the elections is an election in a landowner voting district or any other district for which an elector is not required to be a resident of the district.

BACKGROUND

Double Voting. The situation that was the impetus for this bill involved a couple who, on multiple instances between 2010 and 2018, voted in elections held on the same day in both California and Oregon. While it is likely against the law in most cases for a person to vote in an election held in California and in an election held in another state on the same day, it is not necessarily the case that such conduct would violate California law, depending on the domicile of the person involved.

Under California law, a person generally is eligible to vote in an election only if that person resides in the territory where the election is held. State law defines residence for voting purposes in a manner such that a person can have only one residence at a time. Other states generally also require a person to reside in the state in order to vote in elections in the state. Furthermore, while state laws vary in their definitions of “residence” for voting purposes, states generally do provide that a person can have only one residence for voting purposes at a time. Accordingly, it is unlikely that a person would be considered a legal resident of two different states at the same time for voting purposes.

For example, under California and Oregon’s election laws, a person could legally be a resident of California, or a resident of Oregon, but not both at the same time. Furthermore, both California and Oregon make it a crime for a person to vote in an election if the person is not entitled to do so. As a result, if a person votes in an election held on the same day in both California and Oregon, and that person is legally a resident of California, then that person likely has violated Oregon law by voting in an election in Oregon while not being a resident of that state. On the other hand, if the person is legally a resident of Oregon, then the person likely violated California law by voting in an election in California while not a resident of the state.

While it is a crime under California law for a person to vote more than once or to attempt to vote more than once in an election, it appears that this law does not cover a situation where a person votes in California and in another state in elections held on the same day. As detailed above, California law defines the term “election” as “any election…provided for under the Elections Code.” Accordingly, an election held in another state likely would not be considered an “election” under state law, and a person who voted in California and another state on the same day likely would not be considered to have voted more than once in an election for the purpose of California law. Oregon law, on the other hand, expressly prohibits a person from voting or attempting to vote both in an election held in that state and in another state on the same date (Oregon Revised Statutes 260.715). A violation of that prohibition is a felony (Oregon Revised Statutes 260.993). The language in this bill is similar to the language in the Oregon statute, but differs in that the violation is a felony in Oregon law, but a misdemeanor in this bill.

Other States. According to information from the National Conference of State Legislatures (NCSL), while state laws generally prohibit a person from voting more than once in the same election, the statutory language varies from state-to-state. For example, some states explicitly make it a crime for a person to vote in more than one state; other states prohibit voting twice in the same election, but don’t expressly state whether voting in elections in two different states that are held on the same day would be considered voting twice in the same election. NCSL summarizes state laws related to “voting more than once” as follows:

• 13 states explicitly prohibit voting in more than one state: Alabama, Arizona, Colorado, Kansas, Kentucky, Maine, Missouri, New Hampshire, Oregon, South Dakota, Virginia, Washington, and West Virginia.
  
• Seven states prohibit voting twice within the state or for the same office: Alabama, Delaware, Hawaii, Illinois, Maryland, Mississippi, and West Virginia.
  
• 32 states and Washington, D.C., prohibit voting twice in the same election: Alaska, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming.
  
• In Indiana, voting twice is not explicitly mentioned, but a person may not knowingly apply for or receive a ballot in a precinct other than the precinct in which the person is entitled to vote. In addition, registering to vote more than once is a misdemeanor.
  

Federal Prohibition. As detailed above, existing federal law—as part of the federal Voting Rights Act—prohibits voting more than once in an election. NCSL notes, however, that it “has been unable to find a prosecution of any person under that statute for voting in multiple states at the same time (for instance, voting for state and federal offices in the 2016 election in State X and for state offices in State Y, when the voter owns residences in both states),” and concludes that “the question of whether federal law prohibits such voting practices remains unresolved.”

The Elections Crimes Branch of the Public Integrity Section of the United States Department of Justice (USDOJ) publishes a periodic Federal Prosecution of Election Offenses Manual that is designed to “assist[] federal prosecutors and investigators to discharge the responsibility of the Department of Justice in attacking corruption of the election process with all available statutes and theories of prosecution.” The most recent edition of that manual, published in December 2017, discusses the federal prohibition against voting more than once in an election not in the context of a person who casts multiple ballots under the person’s own name in a single election. Instead, the manual identifies the prohibition as “most useful as a statutory weapon against frauds that do not involve the participation of voters in the balloting acts attributed to them.” Specifically, the manual states that “[m]ost cases prosecuted under the multiple-voting statute have involved defendants who physically marked ballots outside the presence of the voters in whose names they were cast – in other words, without the voters’ participation or knowledge.” The manual further notes that the federal prohibition “may also be applied successfully to schemes when the voters are present but do not participate in any way, or otherwise consent to the defendant’s assistance, in the voting process.” In light of this discussion, it is unclear whether the USDOJ views the federal prohibition against voting more than once in an election as providing a basis for prosecuting a person who votes under the person’s own name in more than one state at the same federal election.

Elections in Landowner Voting Districts. As detailed above, state law generally requires a person to be a resident of a jurisdiction in order to vote in elections in that jurisdiction. The one notable exception is for elections in landowner voting districts, where only landowners in the district are eligible to vote in district elections. For some landowner voting districts, a landowner is not required to reside in the district in order to be eligible to vote in district elections.

State law authorizes the creation of landowner voting districts in recognition of the fact that certain special districts with limited powers have a disproportionate effect on landowners. In some landowner voting districts, the economic burden and benefit of the district's operation may be entirely limited to landowners. In such a situation, landowners may be willing to form a special district (and thus to bear the costs of operating the district) only if they are guaranteed to have operational control over the district. The United States Supreme Court has found that landowner voting districts can be constitutionally permissible only where a district does not "exercise what might be thought of as 'normal governmental' authority, but its actions disproportionately affect landowners." Salyer Land Co. v. Tulare Water District (1973) 410 US 719. In California, levee districts, water storage districts, reclamation districts, and some water districts are landowner voting districts.

Because a person does not necessarily need to be a resident of landowner voting district in order to be eligible to vote in the district’s elections, it is possible that a person could be legally entitled to vote in an election in a landowner voting district in California while residing in another state and voting in an election in that state on the same day. To account for that scenario (and for elections in similar districts in other states), this bill provides that it does not apply to a situation where a person votes in elections in California and another state on the same day, but one of the elections is in a district for which an elector is not required to be a resident of the district.

COMMENTS

1. According to the author: Voter fraud is exceedingly rare and it is vitally important that any instances not be used to promote baseless claims to undermine confidence in our elections. Nevertheless, it recently came to my attention that the Santa Clara County District Attorney discovered that a couple residing in the county had voted in both California and Oregon in November 2010, 2012, 2014, 2016, and 2018. After discovering this pattern of multi-state double voting, the District Attorney also found that California law does not prohibit this conduct. Thirteen other states currently prohibit such conduct and AB 1539 would add California to the list of states where someone cannot vote or attempt to vote in two elections that are occurring on the same day.
2. Argument in Support. In a letter supporting AB 1539, American Federation of State, County, and Municipal Employees writes, in part, the following:

Election administration is designated to the individual states in the United States Constitution. As such, there are few systems in place to help states coordinate and ensure that voters who maintain residences in multiple states are only voting in one state. During election years, residents who have recently moved may remain on their previous state’s voter rolls. This has been proven to be exploited, as occurred recently in Santa Clara County where a resident who also maintains a home in Oregon voted in both states during the same election.

Although existing law bans the phenomenon of double voting in California’s jurisdiction, it does not cover instances of voting both in California and another state. AB 1539 would ensure the phenomenon of “multi-state double voting” is banned in California, thus closing a loophole in our electoral process. By passing AB 1539 California would join with 13 other states that ban multi-state double voting. With bills like AB 1539, we can help with the integrity of California elections and our democratic process.

1. Argument in Opposition. In a letter opposing AB 1539, Election Integrity Project California, Inc. writes, in part, the following:

Voters need to know that their state officials, legislators and law enforcement officials are protective of their rights, especially their civil right to be secure in knowing that each citizen gets ONE vote, that no one is more “equal” than anyone else, and that the penalty for breaching that trust is severe enough to be a powerful deterrent.

The connotation of “misdemeanor” is a simple misstep, an “oops”, a slight lapse in judgement that has minor impact on any individual or society. It is a deed that lacks malicious intent and is easily forgivable, to be “paid” for with a sensible fine and/or a little community service.

Doing anything with the intent to manipulate the electoral process or the outcome of any election is NOT an “oops.” It does NOT lack malicious intent and IS an attack on the very democratic process at the heart of our great Republic. Under current CA law, voting twice, whether within the same state or in two different states, is a felony. It needs to remain a felony, not be downgraded to a simple misdemeanor.

1. Suggested Amendment. The bill creates a new Elections Code 18560.1 related to “double voting” making it a misdemeanor to vote or attempt to vote in an election in this state and another state on the same day. Existing Elections Code Section 18560 defines “fraudulent voting” and lists actions that are crimes punishable as a felony or a misdemeanor, including voting twice in the same election. Committee staff recommends that Section 18560 be amended to align the penalties for double voting and voting twice so that both circumstances are subject to the same punishment. Alternatively, the bill could be amended to clarify that double voting in two states on the same date is voter fraud.
2. Double Referral. If approved by this committee, AB 1539 will be referred to the Committee on Public Safety.

RELATED/PRIOR LEGISLATION

AB 31 (Cristina Garcia) of 2015, among other provisions, would have required the Attorney General to investigate and prosecute a violation of fraudulent voting or attempting to vote in a jurisdiction in which the person does not reside for voting purposes. AB 31 was set, but not heard by the Assembly Committee on Elections and Redistricting.

PRIOR ACTION

POSITIONS

Sponsor: Santa Clara District Attorney’s Office

Support: American Federation of State, County, and Municipal Employees

Oppose: Election Integrity Project California, Inc.

-- END --

Date of Hearing: May 3, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1539

Author:(Berman) – As Amended Ver:March 23, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill makes it a misdemeanor for a person to vote or attempt to vote in both an election held in this state and an election held in another state on the same day.

This bill does not prohibit such behavior if one of the elections is an election held in a landowner voting district or any other district for which a voter is not required to be a resident of the district.

FISCAL EFFECT:

1. Potential cost pressures (General Fund (GF) or Trial Court Trust Fund (TCTF)) in the tens of thousands of dollars annually to the trial courts in increased workload, given this bill creates a new crime for voting in two states on the same day A defendant charged with a misdemeanor is entitled to no-cost legal representation and a jury trial. If five new crimes are filed annually statewide and proceed to trial resulting in two days of court time, at an estimated cost of approximately $8,000 for an eight-hour court day, the approximate annual cost to the courts is $80,000. Although courts are not funded on the basis of workload, increased pressure on staff and the TCTF may create a need for increased court funding from the GF to perform existing duties. The Governor’s 2023-24 state budget already proposes $109.3 million in ongoing GF revenue to continue backfilling the TCTF for expected revenue declines.
2. Potential non-reimbursable costs in the tens of thousands of dollars annually for increased incarceration costs, as misdemeanors are generally punishable by up to six months in county jail or $1,000 in fines. The average annual cost to incarcerate a defendant in county jail is approximately $29,000. California county jails are increasingly overcrowded – particularly since the enactment of the Realignment Act in 2011. Jail overcrowding since 2011 has resulted in court-mandated population caps and increased rates of inmate violence and death. Overcrowding has also resulted in significant state funding for additional jail construction. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the GF because the state has historically granted new funding to counties to offset overcrowding after the 2011 Realignment Act.

COMMENTS:

1. Purpose. According to the author:

Voter fraud is exceedingly rare and it is vitally important that any instances not be used to promote baseless claims to undermine confidence in our elections. Nevertheless, it recently came to my attention that the Santa Clara County District Attorney discovered that a couple residing in the county had voted in both California and Oregon in November 2010, 2012, 2014, 2016, and 2018. After discovering this pattern of multi-state double voting, the District Attorney also found that California law does not prohibit this conduct. Thirteen other states currently prohibit such conduct and AB 1539 would add California to the list of states where someone cannot vote or attempt to vote in two elections that are occurring on the same day.

1. Support and Opposition. This bill is sponsored by the Santa Clara District Attorney’s Office, which argues “This bill closes this loophole and reaffirms that the right to vote adheres to people, not property.” The sponsor notes that in the above-described case, “Oregon law does not have this loophole, so we deferred prosecution to Oregon officials, as Oregon has a law that unambiguously outlaws multi-state double voting.”

This bill is opposed by the Election Integrity Project California, which argues “Under current [state] law, voting twice, whether within the same state or in two different states, is a felony. It needs to remain a felony, not be downgraded to a simple misdemeanor.”

1. Multi-state Voting. Existing state law provides a person is generally eligible to vote in an election if that person resides in the territory where the election is held. State law defines residence for voting purposes in a manner such that a person can have only one residence at a time. Other states rely on similar definitions in their state laws, so it is unlikely a person can be considered a legal resident of two different states at the same time for voting purposes. While existing state law makes it a felony for a person to vote, or attempt to vote, more than once in an election, an election held in another state likely would not be considered an “election” under state law. Thus, a person who votes in California and another state on the same day likely would not be considered to have voted more than once in an election for purposes of state law. This bill makes such an action a misdemeanor, similar to other states that explicitly prohibit such behavior.

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: April 19, 2023

ASSEMBLY COMMITTEE ON ELECTIONS

Isaac G. Bryan, Chair

ABPCA Bill Id:AB 1539 (

Author:Berman) – As Amended Ver:March 23, 2023

SUBJECT: Elections: double voting.

SUMMARY: Prohibits a person from voting in an election in California and in an election in another state on the same date. Specifically, this bill:

1. Provides that a person who votes or attempts to vote in an election held in this state and in an election held in another state on the same date is guilty of a misdemeanor.
2. Provides that this bill does not prohibit a voter from voting in an election held in this state and an election held in another state on the same date if one of the elections is an election in a landowner voting district or any other district for which an elector is not required to be a resident of the district.

EXISTING STATE LAW:

1. Defines “election,” for the purposes of the Elections Code, as any election including a primary that is provided for under the Elections Code. (Elections Code §318)
   
2. Provides that every person is guilty of a crime punishable by imprisonment for 16 months or two or three years, or in a county jail not exceeding one year, who does any of the following:
   1. Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.
   2. Being entitled to vote at an election, votes more than once, attempts to vote more than once, or knowingly hands in two or more ballots folded together at that election.
   3. Impersonates or attempts to impersonate a voter at an election. (Elections Code §18560)
3. Requires an affidavit of voter registration to include the voter's place of residence, among other information. (Elections Code §2150) Defines "residence" for voting purposes as a person's domicile. (Elections Code §349(a))
4. Provides that for the purposes of the state's election laws, the domicile of a person is that place in which the person’s habitation is fixed, wherein the person has the intention of remaining, and to which, whenever the person is absent, the person has the intention of returning. Provides that at a given time, a person may have only one domicile. (Elections Code §349(b))
5. Provides that a person who is qualified and registered to vote may vote at any election held within the territory within which the person resides and the election is held. (Elections Code §2000(a))
6. Provides that except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding $1,000, or both. (Penal Code §19)

EXISTING FEDERAL LAW provides that whoever votes more than once in an election, as specified, shall be fined not more than $10,000 or imprisoned not more than five years, or both. Provides that this prohibition applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico. (52 USC §10307(e))

FISCAL EFFECT: Unknown. State-mandated local program; contains a crimes and infractions disclaimer.

COMMENTS:

1. Purpose of the Bill: According to the author:

Voter fraud is exceedingly rare and it is vitally important that any instances not be used to promote baseless claims to undermine confidence in our elections. Nevertheless, it recently came to my attention that the Santa Clara County District Attorney discovered that a couple residing in the county had voted in both California and Oregon in November 2010, 2012, 2014, 2016, and 2018. After discovering this pattern of multi-state double voting, the District Attorney also found that California law does not prohibit this conduct. Thirteen other states currently prohibit such conduct and AB 1539 would add California to the list of states where someone cannot vote or attempt to vote in two elections that are occurring on the same day.

1. Double Voting: As described by the author above, the situation that was the impetus for this bill involved a couple who, on multiple instances between 2010 and 2018, voted in elections held on the same day in both California and Oregon. While it is likely against the law in most cases for a person to vote in an election held in California and in an election held in another state on the same day, it is not necessarily the case that such conduct would violate California law, depending on the domicile of the person involved.
   
   Under California law, a person generally is eligible to vote in an election only if that person resides in the territory where the election is held. State law defines residence for voting purposes in a manner such that a person can have only one residence at a time. Other states generally also require a person to reside in the state in order to vote in elections in the state. Furthermore, while state laws vary in their definitions of “residence” for voting purposes, states generally do provide that a person can have only one residence for voting purposes at a time. Accordingly, it is unlikely that a person would be considered a legal resident of two different states at the same time for voting purposes.
   
   For example, under California and Oregon’s election laws, a person could legally be a resident of California, or a resident of Oregon, but not both at the same time. Furthermore, both California and Oregon make it a crime for a person to vote in an election if the person is not entitled to do so. As a result, if a person votes in an election held on the same day in both California and Oregon, and that person is legally a resident of California, then that person likely has violated Oregon law by voting in an election in Oregon while not being a resident of that state. On the other hand, if the person is legally a resident of Oregon, then the person likely violated California law by voting in an election in California while not a resident of the state.
   
   While it is a felony under California law for a person to vote more than once or to attempt to vote more than once in an election, it appears that this law does not cover a situation where a person votes in California and in another state in elections held on the same day. As detailed above, California law defines the term “election” as “any election…provided for under the Elections Code.” Accordingly, an election held in another state likely would not be considered an “election” under state law, and a person who voted in California and another state on the same day likely would not be considered to have voted more than once in an election for the purpose of California law. Oregon law, on the other hand, expressly prohibits a person from voting or attempting to vote both in an election held in that state and in another state on the same date (Oregon Revised Statutes 260.715). A violation of that prohibition is a felony (Oregon Revised Statutes 260.993). The language in this bill is similar to the language in the Oregon statute.
2. Other States: According to information from the National Conference of State Legislatures (NCSL), while state laws generally prohibit a person from voting more than once in the same election, the statutory language varies from state-to-state. For example, some states explicitly make it a crime for a person to vote in more than one state; other states prohibit voting twice in the same election, but don’t expressly state whether voting in elections in two different states that are held on the same day would be considered voting twice in the same election. NCSL summarizes state laws related to “voting more than once” as follows:

• 13 states explicitly prohibit voting in more than one state: Alabama, Arizona, Colorado, Kansas, Kentucky, Maine, Missouri, New Hampshire, Oregon, South Dakota, Virginia, Washington and West Virginia.
  
• Seven states prohibit voting twice within the state or for the same office: Alabama, Delaware, Hawaii, Illinois, Maryland, Mississippi and West Virginia.
  
• 32 states and Washington, D.C., prohibit voting twice in the same election: Alaska, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia, Wisconsin and Wyoming.
  
• In Indiana voting twice is not explicitly mentioned, but a person may not knowingly apply for or receive a ballot in a precinct other than the precinct in which the person is entitled to vote. And, registering to vote more than once is a misdemeanor.
  

1. Federal Prohibition: As detailed above, existing federal law—as part of the federal Voting Rights Act—prohibits voting more than once in an election. NCSL notes, however, that it “has been unable to find a prosecution of any person under that statute for voting in multiple states at the same time (for instance, voting for state and federal offices in the 2016 election in State X and for state offices in State Y, when the voter owns residences in both states),” and concludes that “the question of whether federal law prohibits such voting practices remains unresolved.”
   
   The Elections Crimes Branch of the Public Integrity Section of the United States Department of Justice (USDOJ) publishes a periodic Federal Prosecution of Election Offenses Manual that is designed to “assist[] federal prosecutors and investigators to discharge the responsibility of the Department of Justice in attacking corruption of the election process with all available statutes and theories of prosecution.” The most recent edition of that manual, published in December 2017, discusses the federal prohibition against voting more than once in an election not in the context of a person who casts multiple ballots under the person’s own name in a single election. Instead, the manual identifies the prohibition as “most useful as a statutory weapon against frauds that do not involve the participation of voters in the balloting acts attributed to them.” Specifically, the manual states that “[m]ost cases prosecuted under the multiple-voting statute have involved defendants who physically marked ballots outside the presence of the voters in whose names they were cast – in other words, without the voters’ participation or knowledge.” The manual further notes that the federal prohibition “may also be applied successfully to schemes when the voters are present but do not participate in any way, or otherwise consent to the defendant’s assistance, in the voting process.” In light of this discussion, it is unclear whether the USDOJ views the federal prohibition against voting more than once in an election as providing a basis for prosecuting a person who votes under the person’s own name in more than one state at the same federal election.
2. Elections in Landowner Voting Districts: As detailed above, state law generally requires a person to be a resident of a jurisdiction in order to vote in elections in that jurisdiction. The one notable exception is for elections in landowner voting districts, where only landowners in the district are eligible to vote in district elections. For some landowner voting districts, a landowner is not required to reside in the district in order to be eligible to vote in district elections.
   
   State law authorizes the creation of landowner voting districts in recognition of the fact that certain special districts with limited powers have a disproportionate effect on landowners. In some landowner voting districts, the economic burden and benefit of the district's operation may be entirely limited to landowners. In such a situation, landowners may be willing to form a special district (and thus to bear the costs of operating the district) only if they are guaranteed to have operational control over the district. The United States Supreme Court has found that landowner voting districts can be constitutionally permissible only where a district does not "exercise what might be thought of as 'normal governmental' authority, but its actions disproportionately affect landowners." Salyer Land Co. v. Tulare Water District (1973) 410 US 719. In California, levee districts, water storage districts, reclamation districts, and some water districts are landowner voting districts.
   
   Because a person does not necessarily need to be a resident of landowner voting district in order to be eligible to vote in the district’s elections, it is possible that a person could be legally entitled to vote in an election in a landowner voting district in California while residing in another state and voting in an election in that state on the same day. To account for that scenario (and for elections in similar districts in other states), this bill provides that it does not apply to a situation where a person votes in elections in California and another state on the same day, but one of the elections is in a district for which an elector is not required to be a resident of the district.
3. Arguments in Support: The sponsor of this bill, the Santa Clara County District Attorney’s Office, writes in support:

Voter fraud is exceedingly rare. However, the scenario covered by the bill recently came to light in Santa Clara County when it was discovered that a couple who own property in California and Oregon cast ballots in both states in the November 2010, 2012, 2014, 2016, and 2018 elections. Their adult child also cast ballots in both states in the November 2016 and 2018 elections. Because existing California law does not explicitly prohibit the alleged conduct, the Santa Clara County District Attorney’s Office could not bring charges. Fortunately, Oregon law does not have this loophole, so we deferred prosecution to Oregon officials, as Oregon has a law that unambiguously outlaws multi-state double voting. AB 1539 provides California with the tools to combat this scenario should it arise again, and we strongly encourage your support.

REGISTERED SUPPORT / OPPOSITION:

Support

Santa Clara County District Attorney’s Office (Sponsor)

Opposition

None on file.

Analysis Prepared by: Ethan Jones / ELECTIONS / (916) 319-2094