Senate Standing Committee on Elections and Constitutional Amendments

Here. This is the Senate Committee on Elections and constitutional amendments. It's April 2, 2024, a bit after 9:30 in room 2100. We encourage all Members of this Committee to come to room 2100. So we will start with. We have five bills on our agenda today. The first one is SB 1174 by Senator Min. We also have SB 1293 by Senator Ochoa Bogh, SB 1328 by Senator Bradford, SB 1404 by Senator Glazer, and SB 1476 by me. So we don't yet have a quorum.

So we will establish a quorum in a bit. So we will now go ahead and hand it over to Senator Min for SB 1174. Welcome and thank you.

Thank you, Madam Chair, and thank you, Committee Members. I'm glad you joined us and made this more than just the chair this morning. SB 1174 would ensure that local governments cannot implement voter identification laws in local elections. Of course, we've seen a lot of recent claims of rampant voter fraud, that the 2020 election was stolen.

This big lie has been an unfortunate part of a narrative driven by Donald Trump and certain of his supporters to try to cast aspersions on the integrity of elections, even when we have not seen any evidence to show that widespread voter ID is an issue. And yet, nonetheless, we have seen voter ID laws pass in a number of states which harken back to an era of Jim Crow type barriers to voting.

We know that the essence of democracy is the franchise and that voter participation is critical. We also know that there is a really critical body of evidence, a fairly overwhelming body of evidence, showing that voter ID laws often serve to disenfranchise lower income voters, young voters, lower propensity voters.

And as a principle, I think that this Bill tries to get at the problem we've seen, including in cities I represent, such as Huntington Beach, of cities trying to implement their own voter ID laws above and beyond, independent of those of the state, casting aspersions, raising questions around the integrity of the state elections procedures without providing any evidence whatsoever that these have problems. These also potentially have chilling effects on federal, state, and county elections, lowering participation.

And just to be clear, California already has robust identification procedures to register to vote. California voters provide their driver's license number, or California ID number, or the last four digits of their Social Security number. They provide a signature which is then verified by election officials. And we know right now we're seeing the congressional District 16. The process of curing signatures which may not match shows that the system is working.

But this is unfortunately part of the landscape we're seeing in this post Trump era SB 1174 would ensure that voters do not face the unnecessary barrier of voter ID laws in local elections, but also make clear the principle that any voter ID laws are the province of the State of California, not of individual jurisdictions. Here to testify in support of the Bill are Ruth Dawson, legislative attorney with ACLU California Action, and Joey Flegel-Mishlove, political action apprentice at AFSCME California.

And as they come forward, the lead witnesses. We're going to establish a quorum.

Great.

So, assistant, please call the roll.

[Roll Call]

Okay, we have a quorum. So now we will return to Senator Min's Bill and your lead witnesses. Welcome.

Good morning. Good morning. Chair Blakespear and Members, my name is Ruth Dawson, legislative attorney with ACLU California Action, and I'm pleased to testify in strong support of SB 1174 by Senator Minh. This Bill would, one, reaffirm that voting rights and election integrity, including voter verification, are Members of statewide concern and two, make clear that charter cities are prohibited from enacting voter ID requirements for municipal elections. Voter ID laws perpetuate the harmful myth of voter fraud and do nothing to improve election integrity.

Election officials, studies, experts and courts have repeatedly confirmed that instances of voter fraud are exceedingly rare. However, numerous studies and data show that voter ID requirements do impose severe and disparate burdens on voters, and, in particular, voters of color. The California Legislature has long understood the harms of voter ID requirements, and state law does not impose a voter ID requirement at the ballot box.

The Secretary of State and county elections officials verify voter eligibility and ensure election integrity for local, state and federal elections in a manner that is minimally burdened on voters and supports a strong democracy in our state.

As the author outlined, despite California's carefully balanced system, last year, the Huntington Beach City Council placed a voter ID measure on the March 2024 ballot, with the city attorney erroneously arguing that Huntington Beach may impose a voter ID requirement because it is a charter city with home rule authority over municipal elections.

Huntington Beach's position ignores case law that makes the voter ID measure invalid because, one, voting rights and election integrity are matters of statewide concern, and two, the measure conflicts with state law and burdens voting rights hunting. Huntington Beach's measure will no doubt be successfully challenged in court, and in the meantime, SB 1174 will stop any other cities from attempting to pass similar measures that spread misinformation about the integrity of our elections.

And we urge you to support this important Bill to prevent the chipping away of democratic integrity in our state. Thank you so much.

Good morning, Chair Blakespear and Committee Members, thanks again for your time this morning. My name is Joey Flegel-Mishlove. I'm here on behalf of the over 200,000 working people who make up the American Federation of State, County and Municipal employees here in California. AFSCME Members work at all levels of state and local government. We work in our state hospitals, at our UC systems.

We maintain water and utility districts and operate at almost every function of city and county governments in California, including many counties where our workers, our Members, work in our elections office, ensuring our fair and honest election system every year. And so AFSCME Members are deeply invested in our state's electoral apparatus because it's their job to carry out the plans and policies that elected officials enact.

And our Members know that they're best able to serve their communities when the elected officials they work for are truly representative of their communities. So our Members recognize that right now, California is a leader in designing election systems that are fair and are just. But we also recognize that we're not immune to some of these national trends that both Ruth and the Senator mentioned that pull our electoral process towards something that is more arduous and ultimately more exclusive of working people.

So cities implementing voter ID laws threaten to take a major step backwards in California by enforcing policies that make it more difficult to vote, and specifically have been shown to exclude black, Latino, and indigenous community Members from our electoral system. Members of our union, who are long term care workers, have also pointed to many studies showing that voter ID laws tend to disenfranchise people with disabilities and our elderly communities.

So we know that these laws are a real threat to our thriving democracy and would allow our electoral process to misrepresent or ignore communities that our Members work in, live in, and are a part of. And this step backwards, represented by these voter ID laws, we know cannot be justified by these claims of voter fraud, which have been shown time and time again to be overblown and are ultimately dog whistles that work to exclude targeted populations from the voting process.

And so the Members of AFSCME strongly and respectfully recommend an aye vote on SB 1174 so we can continue to protect California's fair and honest election system.

Thank you.

Thank you, Joey. Sorry for butchering.

Well, thank you to both of your primary witnesses. Now we will call any support witnesses who are here. You may come to the microphone and share your name and organization.

Good morning, chair Members. My name is Dora Rose with the League of Women Voters of California. We are in very strong support. We also have the proxy of Asian Americans advancing justice, Asian Law Caucus. They also are very strong support. Thank you.

Thank you. Any other lead witnesses in support? Okay, we will now move on to lead witnesses in opposition. Do we have any other. Do we have any lead witnesses in opposition? Seeing none. Do we have any other opposition witnesses who'd like to come to the microphone? Okay. Thank you all for your support. And we will now bring the discussion back to the Members. Yes, Senator Newman.

Thank you, Madam Chair. So, Senator Min, glad to support this Bill. I'd asked to be added as a co-author, as Miss Dawson pointed out. I mean, this is sure to be challenged and fairly sure to be overturned, but, you know, let's do what is necessary now. You know, two years ago, I did a Bill that extended protections to election workers who find themselves increasingly threatened. There's unfortunately a nexus here, and I appreciate what you're trying to do.

Anything that we can do to restore sort of sense and dignity to the electoral process is a good thing, because as you pointed out, there are no problems with voter fraud in California. There are problems with politics, but let's take the politics out of elections. So appreciate the Bill. Glad to support it.

I appreciate that. And we'll add you as a co author as soon as we can. And we just add that I've repeatedly asked the City of Huntington Beach majority, which is behind this measure, to produce evidence of voter fraud. In fact, Senator Nguyen and I were at a City Council meeting together where I made this request. We have not received any evidence from them that there's any instances of voter fraud.

And the Orange County registrar is actually well reputed for being maybe the best registrar in the country. Very clean elections, very efficient. I've heard no complaints of voter fraud at all in Orange County, let alone in Huntington Beach. That would justify this. At the same time, I would just add that this seems like a deliberate attempt to try to undermine faith in our process. This was accompanied initially by a companion proposal to also install video surveillance of ballot boxes and voting centers.

So, you know, again, this just does seem to be a dog whistle at the end of the day.

Thank you. Yes, Senator Nguyen.

Thank you, Madam Chair. I've got a few questions I wanted to ask first. Will this Bill remove the passage that was passed by Huntington Beach?

There is nothing passed by Huntington, the charter. Yes, the charter in primary. I think this would make clear that what they're proposing to do is not permissible under California State law. As you know, I think the Attorney General and Secretary of State have already issued an opinion letter to the City Council and to the city attorney, Michael Gates, proclaiming their belief that this would be illegal under California law.

Under current California law?

Not superseding what you're trying to do today? So what I'm trying to is there current law that preempts Hunton beach voters from voting to pass voter ID? 53% of the voters in Huntington Beach voted for it. And so it goes back to, is there a current law that prohibits them from doing so? And if the answer is yes, then do you need this Bill?

So if I can answer the question as the ACLU attorney. Ruth. Ruth, sorry for getting your list. I'm sorry, Ruth. I've got it right here. Ruth Dawson said, and we could have her come up to clarify. But the Attorney General and ACLU and many others have taken the position that under current case law, what Huntington Beach has done is illegal and is not valid, and that is the subject of the litigation currently.

I will also say that Michael Gates, as part of the charter amendment, issued an opinion that the Attorney General, the Secretary of State, and many others have said was erroneous. That being said, having reviewed this, I think there's some ambiguity in the law. I believe that there's two questions here, as the ACLU attorney, Ruth Dawson pointed out. One is, is this a matter of statewide concern, or is it something that charter cities can legislate under home rule?

Second is the question of, does this have a chilling effect on federal, state and county elections? Now, on the first question, I think it's a little ambiguous. The Attorney General, ACLU and Secretary of State have taken the position that this is illegal.

On the second question, I think that is very clear that should Huntington Beach try to hold their elections at the same time and place as federal, state and county elections and to impose their own unique voter ID requirements, that that would clearly have a chilling effect. That would be acknowledged as illegal by any court that looked at it.

The open question is whether, if they did their own elections at a separate time and place as the federal, state and county elections, whether that would be chilling or not. And again, that's a subject to litigate. But I would just say that you can parse it like this. If I tell a bunch of voters, you have to bring 10 forms of voter ID to the polls to vote, even if that's only applicable to municipal elections.

A lot of voters might just assume rationally that that also applied to their ability to vote in other elections. And so that could be seen as having a chilling effect. So again, I'm not going to argue ultimately, judges and potentially circuit courts and potentially the Supreme Court of California may decide on this issue. But what this Bill does is make very, very clear that this is not permissible under California law.

So to answer the question, what I'm hearing, because you were quoted stating that it is, that you seem, I just lost my shoot. You were quoted stating that you think it seems unlawful. And so basically what putting,

I didn't say that. I said that the Attorney General, the Secretary of State and many groups have taken the position that this is unlawful under current law. However, that being said, it's the subject of litigation. This Bill would make clear that it is unlawful. But I could have Miss Dawson, she's the expert in this area.

Senator, let me just quote you in the newspaper, in the register. "As I noted back in early August, Huntington Beach proposal to Institute new voter ID requirements and ballot box monitoring seemed unlawful and likely to lead to voter intimidation and racial profiling." So you made a statement in the register that you back then felt that this seems to be unlawful, and now you're proposing a Bill. To me, it seems like it wasn't unlawful.

Now you're making sure that it is going to be unlawful by proposing this Bill.

And I'm trying to clarify, I'm not saying that at all. I'm saying, and this is consistent with the quote you're taking from the Orange County Register, that, in fact, that it could be seen as unlawful. A lot of people view this as unlawful. It also depends on how it's deployed. For example, the ballot box monitoring, I think, would have been unlawful under any circumstance. That's not the subject of this particular legislation. As far as the voter ID requirements, they are clearly unlawful under many circumstances.

If, for example, as I mentioned, if they were held on elections, if you impose voter ID requirements on elections that are at the same time and place as federal, state and county elections, that would clearly be illegal. No city can do that, right. The question, if I may finish, is if Huntington Beach did its own elections at a separate time and place and tried to impose their own voter ID requirements, is that illegal under current California law?

And what I would tell you is that many people, including the highest legal officer in California, believe that is the case. However, there is some ambiguity about there. This has not been decided as a precise matter on this narrow issue under case law is my understanding, and so I defer to the experts.

I would say that Miss Dawson, probably could give you a more fulsome answer than I'm giving you right now, but I would just say that this Bill just clarifies very quickly and clearly that this is illegal. There's no ifs, ands, or buts.

So if this is what I'm hearing, that this policy should be litigated and it should go to the court. So why this Bill? Why don't you just let it be litigated? 53% of the City of Huntington Beach voted for this measure. They feel that in their own city that they would like voter ID. And regardless of the reason, the pros and cons. I'm not here to argue or, you know, to have that debate here.

It's for me that I'm looking at 53% of the voters wants local control every day. All we see in, within the local government is that the State of California, the state legislative body, continues to impose against cities. And now that cities like Huntington Beach is a chartered city, they can't even get the voters to vote on something and be okay with it. I mean, they're actually, they didn't implement themselves as a council. They brought it to the voters.

And there were three measures this last election, the primary. Not all three passed. Two passed and one didn't. It shows you that the voters of Huntington Beach are very well versed. They're looking at their ballot initiatives, they're reading it, and they made their choices. And so, I mean, you know, everybody thought, I mean, because I represent Huntington Beach and, and I get to represent it after, you know, continuously, you get to represent because of pre redistricting.

And so the new district is actually 100% in my city. In my district.

The city is 100% in your district.

You're right. 100% of the city is in my district.

And I have about half.

Until 2024, untill the end of this election cycle because it's pretty redistricting. So my point is that what I'm looking at, this is another attempt to just do away with local government control. And now we're also talking about charter school. I mean, charter city, charter city. They chose to be charter city. They chose a different path than General law city. And they're supposed to be given a lot more discretionary on what they get to do with their city locally.

This Bill passes, at my understanding, this Bill passes, it will invalidate immediately what the voters of Huntington Beach just voted on this last election. Is that correct?

So you had a lot there. I'm going to try to unpack it just part at a time. You talk about local control. Look, there's always a balance we strike between local control and the broader principles that we, as the state Legislature, want to make sure are enforced across the State of California and sacrosanct in America. And California is the right to vote. Right? That is. Period.

And so 53% of any city said, hey, we want to take away the rights to vote or make it harder for certain people to vote. I would say that's wrong, and I don't, again, and I would say that voter ID requirements, heightened voter ID requirements, may be appropriate if there was a problem presented and evidence of that. We have not seen any. And I don't believe, as a matter of principle, that that is a issue that local government should decide.

Local government should not decide who gets to vote or not in California. Everyone should be encouraged to vote. We encourage wide participation. We have high participation in this state. And again, as was pointed out by witnesses, we have not seen any evidence of fraud, despite all the false big lie claims that this election was stolen, that there was a bunch of voter fraud that took place. If we see evidence, we, as a state Legislature, ought to act on that.

We have not seen evidence, but this is a matter of, I think, of universal principles, that the State of California should be. The state should be the body that decides who gets to vote in the state. What ID requirements, what certifications are necessary. That should not be a matter for local jurisdictions to decide whether or not 53% of people who vote in, by the way, a Low turnout election decide to inhibit the franchise or make it harder for some people to vote.

You keep on stating that voter asking people to show their ID makes it harder to vote. Help me understand that. Why doesn't.

Because right now, everything we do every day, you go to the bank, you have to show your ID. You go to DMV, you have to show your ID. You go to the airport, you have to show your ID. You go to your Doctor's office, you have to show your ID. You go to concert venues, theaters, you show your ID. You go to the bar or the restaurant and get a drink, you show your ID. You go to a tattoo parlor, you show an ID. You go to a gas station or liquor store, you show your ID. And did you know that the Secretary of State's office across from this building, you have to show your ID to get into that building.

You either show your state ID or a California ID to get into that building. So how does it make it so? Are you saying that none of these facilities should have any requests? An ID at all.

That's not what I'm saying.

So we should ask the Secretary of State's office to not show their ID. But that's my thing. Is that how, why is it, what makes showing a vote, showing an ID makes it harder to vote?

Because I've not heard from the proponents on the ballot measure in Huntington Beach stated that, zero, you know, we don't want people to vote. We are trying to eliminate people to vote. We are trying to make it difficult for people to vote. That was not the statement they made, and that was not on a ballot measure either. You know, and so help me understand, why is it. Why would it make it harder for someone to vote? Show your ID?

To answer the question, I would just say you're, I think, mixing two concepts here. One is who should be responsible for the verification processes around votes? And the answer, in my mind, is the State of California. Not, not. We don't want 100 cities proposing their own different voter ID and registration certification requirements. One, two, we also know that voter ID requirements, as they're called, have been used to intimidate voters of color, younger voters, Low propensity voters.

We saw this happen recently in Arizona, and I'm sure that my witnesses could speak to this Madam Chair, may I have permission?

If it's okay, I'd love to have them speak, but I'm aware of the data suggesting that there was a lot of intimidation where you had private vigilantes showing up and intimidating people of color trying to vote and saying, let me see your ID. It became very, very intimidating for voters, certain types of voters to come out and vote because they were concerned about the harassment they'd received once these laws. And again, remember that this initial proposal was not just a voter ID requirement.

That might be an ID, might be something more than that, because we don't know. Huntington Beach gets to decide. Ultimately, paired with ballot box monitoring, which think about how that sounds to the average person, particularly the average person who might be subject to a lot of police stops, who is used to being harassed in public. Like, those are the voters that are going to be intimidated by this, that all the data suggests are less likely to vote if these types of things happen.

And by the way, there are still some people in society, even today, who don't have driver's licenses or other types of photo IDs. And I don't believe your Costco card typically works when you try to vote under these types of requirements. So, you know, you have younger people, you have some older people, you have people that may be disabled or, you know, that don't, may not have this. So there's a lot of data out there showing that these types of ID requirements actually do inhibit voting.

At the same time, that might be a trade off we might consider making as the state Legislature if there was evidence of rampant voter fraud. But that is the part that is missing here. This is a solution in search of a problem. At no point in time did any of the majority Members of Huntington Beach, the City Council, or any of the other advocates I'm aware of around the state actually ever show evidence that this is a problem. If this is a problem, we should act.

But I don't think it should be city councils that act. It should be the state Legislature. And that is what this Bill is about. But if I could, if I might have one of my witnesses testify on some of the evidence around.

I'm not sure that's necessary right now, unless you would like to hear from them again. But there are some other people who have questions, too. So let's make sure.

Thank you, Madam Chair. I don't, I'm not here to, for me, I'm more interested in what our legal counsels, I'm not here interested in hearing from outside legal counsel because they're just going to be one of the other folks who's going to, you know, be part of the lawsuit. So I'm, I'm, you know, all due respect, I'm not here to hear from legal opinions of others for or against the measure. I guess it comes back to is this.

What I find very troublesome is that one, you know, the talks of this being, it seems unlawful, it is law unlawful. And yet then right after the ballot is passed by the voters in Huntington Beach, now we have a law that's pending, or Bill that's pending.

To be fair, I propose this legislation long before the bill came up for a vote.

And so I, and it goes back to, like I said, I'm not here debating about, you know, the voter ID. It's more of that. There's voters who supports this in Huntington Beach and they feel that that's the confidence they need and want.

And this is, and the council never proposed in using your Costco ID or your school ID. It's a government ID that we all use for everything else we do every day, all day long, that we all hold our ID. And so, you know, one, I believe this Bill is unnecessary and two, that this is just really penalizing one city who is doing what they believe their residents want and it show that that's the case.

And last is that this will invalidate and take away the voters voices that just went through in March. This would invalidate Huntington Beach voter ID measure that it just got passed. And so for that, I'm asking us, I encourage my colleagues to join me in standing up for local government and local control, because every day, everything we do up here is just pounding on local cities and not allowing them to do what they do best and what they know is best for their residents.

So with that, Madam Chair, I respectfully ask for no vote.

I appreciate your comments, and I just note that this would also affect the other cities that are considering the same or similar measures around the state.

Okay. Thank you. Let's go to Senator Umberg.

Thank you, Madam Chair. Thank you, Senator Min, for bringing this forward. Just a couple of points. In terms of this vote in Huntington Beach, basically a solution in search of a problem. There is virtually no evidence of any sort of systemic voter fraud, number one. Number two is it's my understanding that when you register to vote, you actually have to verify, one, that you are a citizen, and two, that you live at the place you say you're living. Is that your understanding?

That is correct, yeah. All right.

And so that there is a verification process just as part of the registration.

With the signature to match as well.

Signature matches as well. In terms of public policy, it seems to me to be our responsibility to enact public policy that we think is appropriate for the state. I happen to agree with you that this is public policy that is appropriate for the state. We're not penalizing Huntington Beach in any way. They suffer no penalty other than not being able to ask for voter ID, which you and I believe is contrary to state law.

But I want to thank you for clarifying it, because clarifying the law through litigation is one expensive in two clogs of courts. So by doing this, I'm hoping that we will expedite that public policy decision. So thank you for that. Lastly, in terms of the will of the voters, and indeed the will of the voters, is something that we should be attended there, too.

But in our own county, in Orange County, a long time ago, a very long time ago, there were folks dressed as police officers posted at polling places with big signs that said noncitizens may not vote. And those police officers, they weren't actually police officers. There were folks dressed as police officers asking folks for voter ID.

At the time. Apparently, it wasn't illegal to do that. It is illegal to do that now. And I think we would all agree that that is a practice that we surely should not countenance we wouldn't want to have police officers or pretend police officers asking for folks. But at the time, I happened to be very attuned to it because I was running for office.

We did a poll, and it turns out that people thought that was a really good idea, much to my shock and chagrin, that they thought that was a good idea. But notwithstanding the fact that the folks thought that was a good idea, that seems like apparent to one good public policy. And it seems also, it seems such that when we look back today, we would think that there's no way that the public would believe that. So the public mood shifts now and again.

Anyway, let me conclude by urging aye vote, and thanking you for bringing this forward.

Thank you, Senator.

Thank you. Any other comments from Committee Members? I'll just say that. I just want to note that District Attorney Todd Spitzer has said publicly multiple times that he's investigated every single allegation of voter fraud in Orange County, and none of them have had any merit. So it's not as if it hasn't been looked at. So I think it's. I think your Bill is really important, and I appreciate you bringing it. Do we have a motion? Did you. Senator Menjivar. Okay, she's moved the Bill.

Senator Newman's already moved it. Okay, good. Thank you for clarifying that. So let's go ahead and take the roll.

I'm sorry. I didn't allow him to close. Would you like to close?

I respectfully ask for your aye vote.

Okay.

[Roll Call]

Okay, so the motion is due pass to the Committee on Local Government, and the vote is six to one.

Thank you, Madam Chair. Thank you, Members.

Thank you. I think. I don't see. Okay, good. Okay, next, we are going to take up our consent item. We have one item on consent, SB 1476. Does any Member want to pull any item from consent? Seeing no one moving to do that, could we please call the roll?

Consent item, SB 1476.

[Roll Call]

Okay, the consent calendar has been adopted, and we will now move on to Bill number SB 1293 from Ochoa Bogh. I see her sitting ready, so you may come to the microphone and please present your Bill. And if you have any lead witnesses in support, they are welcome to come forward.

Good morning, Madam Chair Members. Before I begin, I'd like to accept the Committee's amendments and thank the Committee staff for working with my office. Thank you very much. Senate Bill 1293 would require the published copy of notice of intention in a recall election to omit the signatures and street addresses of the proponents. Since 1911, California's recall has given voters the power to remove elected officials before their term expires.

In order to trigger a recall election, recall petitioners must file a notice of intention with the elections officer and serve a copy to the person being recalled. A copy of the notice includes names, addresses, and signatures must then be published in a newspaper of General circulation. While this may have made sense before information became widely and easily available via the Internet, in today's climate of retaliatory politics, releasing such personal identifying information could lead to intimidation, harassment, and, in extreme cases, violence.

While the Bill would still require all identifying information to be submitted to the elections official and the recalled official, the street addresses and signatures would need to be published in the newspaper. So in closing, or. Do you want me to close now, or. We don't have any lead. So, the power of recall is fundamental part of California's political system and has been available by voters to express dissatisfaction with their elected representatives for more than 100 years.

In our age of digital technology, it is important that we take steps to safeguard the personal information of voters who choose to engage in the electoral process. I respectfully ask for an aye vote.

Okay, thank you. Senator, do you have any other lead witnesses?

We have none today.

Okay. Are there any support witnesses who would like to come to the microphone to offer support? Seeing none. Do we have any opposition witnesses? Seeing none. Any opposition, other testimony? Seeing none. We will go now to the Members. Any questions?

Let me say, as somebody who has been served recall papers, seems like a reasonable change to me. Glad to move it.

Okay, great. So that's our motion from Senator Newman. The motion is due pass as amended, to the Committee on Judiciary. Assistant, please call the roll.

[Roll Call]

Thank you.

Okay, thank you, Senator. It's six. That Bill is six to zero and it is on call. So next we have. I do not see Senator Bradford in the room, but we will. We will have Senator Allen presenting Senator Glazer's Bill, SB 1404, when he returns, which will be shortly. So we will have a brief recess now.

Well, thank you so much, Madam Chair. Folks on this Committee, some. We've always had some turnover, but you'll remember that our former chair, Senator Glazer, who unfortunately, is not here. Right. Yeah, we're going to protect his privacy. But we did. We did a deep dive into issues relating to audits and some of the challenges that have taken place at the Franchise Tax Board with regards to a real robust oversight of lobbying disclosure reports and statements. And it was a really fascinating and eye-opening hearing.

And I know a number of you remember that hearing. So coming out of that work, the former chair, Senator Glazer, has pulled together this Bill, SB 1404, which transfers the responsibility for conducting audits of the lobbying disclosure reports and statements from the Franchise Tax Board to the Fair Political Practices Commission, and increases a fee to Fund those audits.

And this is being done because in the end of the day, there is a strong sense that, both in terms of resources and focus, that the FPPC is the right place to do this work. They're the ones that are tasked with the oversight of our electoral and disclosure system. As we know, the Franchise Tax Board has an entirely different portfolio. And I think that showed when we were having our discussion and our hearing a few months back. And that's what motivates this Bill.

The Bill enjoys the support of several important good government groups from across the political spectrum, including California Common Cause, the California Taxpayers Association, and with that, I respectfully ask for an aye vote.

Okay, thank you. Do you have any lead witnesses in support?

I think so, yes.

Good morning.

Good morning.

Lindsay Nicano, senior legislative counsel with the Fair Political Practices Commission. The Commission is in support of SB 1404. The Bill would transfer the lobbying audit workload from the FTB to the. Excuse me, the FPPC. The Commission currently has an audit division which conducts certain campaign audits and which also has broad discretionary authority under the Political Reform Act to conduct audits of any reports or statements required by the PRA, including lobbyist reports and statements. Audits are a crucial tool for transparency and accountability.

They operate to monitor compliance with the PRA and are the main and most consistent vehicle for discovering lobbying violations. These violations can include failure to file lobbying reports, failure to accurately report expenses or payments, or omitting expenses or payments on reports, and impermissibly giving gifts or contributions to officials or candidates. Even though only a small percentage of the required audits were completed over the last several years, those that were yielded some findings.

Between the years 2000 and 2017, the Commission had 61 enforcement actions based on audit reports conducted by FTB. This number would likely be higher if more of the audit reports had been completed. Of those that were completed, roughly one in 10 of the audits resulted in either a warning letter or an administrative penalty for those audits that resulted in administrative penalties. Many of these uncovered serious violations that likely would not have been found absent the audit.

For example, in the year 2000, a lobbying firm was found to have failed to timely file 11 reports, or about three years worth of quarterly reports, resulting in a $14,000 fine. In 2012, a lobbyist was fined more than $133,000 for making illegal campaign contributions and arranging for gifts for state legislators that were over the limit. This was discovered due to an audit. More recently, in 2016, an audit uncovered that a lobbying firm failed to report a gift to a Senator, resulting in a $4,000 fine.

The Political Reform act, as it was originally passed by the voters and as it currently reads, includes in its core purposes that the activities of lobbyists should be regulated and their finances disclosed in order that improper influence will not be directed at public officials and that adequate enforcement mechanisms should be provided in order that this title will be vigorously enforced. Based on our records, we see that audits serve a necessary and irreplaceable role in the enforcement of the PRA.

The reduction in audits completed has hindered the ability of the Commission to vigorously enforce the rules related to lobbying because violations are going undiscovered and we've seen a decline in lobbying enforcement actions in recent years. Thank you to Senator Glazer for his leadership on this issue. Thank you to Senator Allen for your presentation, and thank you to this Committee for your consideration.

Thank you very much. Let's see. Do we have opposition witnesses? First, I'm sorry. Let me call for anybody in the room who's in support. Okay. Seeing none. If there's an opposition witness and you'd like to come forward, please do so. I think so.

Miss Tom Hiltek. I'm here representing the Institute of Governmental Advocates. IGA is the trade Association that represents professional lobbyists in the State of California. I was pleased to participate in the workshop that Senator Allen discussed last year in which a problem was discovered with respect to audits by the Franchise Tax Board. But that problem was not limited to lobbyists.

In fact, I would submit that the problem at the Franchise Tax Board, with respect to audits is more compelling and more problematic with respect to the numerous thousands of campaign committees that have not been audited over the last decade as well. Under the Political Reform Act, the Franchise Tax Board is responsible for auditing all sorts of campaign committees, all sorts of participants in the political process, including lobbyists. So, for example, most of you should be subject to audit frequently and routinely under the Political Reform Act.

And my guess is most of you have not been subject to an audit in the last decade. Statewide ballot measure campaigns are subject to mandatory audit under the Political Reform act, and none of those have been done in the last several years. Statewide candidates, including candidates for Governor and all of the statewide offices are required to be audited mandatorily. Yet many of those have not been audited over the last several years. So there's clearly a problem at the Franchise Tax Board.

And I tell you what the Franchise Tax Board told us was it's a resources and personnel problem. This Bill does nothing about the resources or personnel problem at the franchise taxport. The Political Reform act was created almost exactly 50 years ago by the voters of California, and it smartly and appropriately decided that the audit function should be done by a different agency, not the agency that enforces the law.

And that was a good and smart decision, and there's no reason to change that today to solve this problem. What has happened to the Franchise Tax Board is that over the last decade or so, this Legislature has changed the Political Reform Act to increase the requirements for disclosure by all types of participants in politics. So let me give you some examples.

About 15 years ago, 12 years ago, we changed the campaign finance reporting obligation for state candidates, all of you statewide ballot measure committees, to require frequent disclosure of campaign receipts prior to what we used to be called the 16 day period before an election. So for about 40 years, a campaign Committee would have to file a few campaign reports prior to an election. And then the 16 days prior to the election, you'd have to report every day any contribution of $1,000 or more.

We changed that to 90 days before the election about a decade ago. And we require disclosure almost all the time for contributions of $5,000 or more every 10 days. So imagine you're the Franchise Tax Board and you're auditing a Gubernatorial campaign. You used to come in, pull the campaign reports for that candidate. You would see about six campaign reports, and you'd see contribution reports for the last 16 days prior to both the primary and the General election, maybe 100 total campaign reports.

Now that number is thousands, if not tens of thousands of reports. So if you're the Franchise Tax Board, when you assigned a person to do an audit of a statewide candidate, that audit might take a day. Maybe if it was a Gubernatorial campaign, it might take a couple of days. Now it takes weeks. So the workload at Franchise Tax Board has exploded in the lobbying space. 10 years ago, we changed the definition of who a lobbyist is.

For decades, the total number of lobbyists in California was about 1200. That meant probably three or 400 lobbying firms and lobbyist employers. The Franchise Tax Board is required to audit 25% of those, 25% of two or 300. Not a big workload. We changed the definition of lobbyists to include a bunch of people who are having activity over at CalPERS and CalSTRS called placement agents, that turned 1200 into about 2600 lobbyists. In other words, we more than doubled the workload of the Franchise Tax Board.

With respect to auditing lobbyists, 25% of 2600 is a lot more than 25% of 1200. So it's no surprise in my mind that the Franchise Tax Board has not been able to catch up with the workload that this Legislature has imposed on them under the Political Reform act. What they need is more resources and they need more staff. IGA supports that. IGA supports thorough and timely audit of lobbying reports.

What we don't support is transferring this duty to the Fair Political Practices Commission where it has never resided, where there must be separation between the audit function and the enforcement function. That is so important that the Bill actually requires the FPPC to develop basically a firewall between those between this new division and the enforcement division.

You're going to need to wrap it up.

Why build a firewall? Let's leave it at the Franchise Tax Board, is the purpose of that. And lastly, lobbyists shouldn't have to pay for this function. Lobbyists are engaging in First Amendment activity. We do not charge fees to people who are engaging in First Amendment activity. Thank you.

Thank you. Okay, do we have anybody in the audience who would like to testify in opposition? Seeing none, we will come back to the Members. Any questions or comments, Senator Newman.

Briefly, I can see by the look and you want to be brief. Appreciate Mister Hiltek's comments. I would add the best disinfectant, as they say, is sunlight. One of the things that we need to fix is Cal Access. And giving the public access to this information that more than anything, more than audits, I think is an effective check on all of us. And so appreciate your comments today. And I am persuaded, and I'm going to stay off the Bill.

Okay. Thank you, Senator Nguyen.

Mister Hiltack. So since the issue of the Franchise Tax Board is largely the numbers of audits that must be conducted due to the addition of placement agents to the lobbying court, so why is the current provision exempting placements agents not enough?

Can I ask a question, Madam Chair?

Yes.

I think that actually would have a significant effect at Franchise Tax Board if we were to reduce the total number of lobbyists, lobbying firms and lobbyist employers that might be subject to audit by the elimination of placement agents. I think that alone probably would go a long way towards solving this problem. I think there are other areas in the act where we could change thresholds with respect to other types of committees and the like.

That would also help Franchise Tax Board and IGA would stand willing to work with the author to discuss or this Committee to identify areas where we haven't changed the threshold for lobbying or for audits for campaign committees in decades.

So what is a placement agent? Can you kind of help me? For those of us who don't do this for a living, don't look at these laws and what's a placement agent versus a lobbyist.

So about 10 years in 2010, I think there was a lot of controversy regarding people who are trying to influence CalPERS, CalSTRS and some of the other pension funds with respect to the investment into their particular hedge funds, for the most part. And those relationships were they were compensated on a, on a contingent fee basis. So in other words, if you could get CalPERS to invest in your hedge fund, your compensation would be tied to the amount that CalPERS invested.

This Legislature decided that was a practice that it did not like and wanted to curb. And the method that it chose to do that was to determine that all of those people were lobbyists, because under California lobbying law, lobbyists cannot be paid a contingent fee. And so that seemed like a sensible way to do that.

What it did, though, is it adopted all of the thresholds for lobbying, which are quite low when we're talking about people who lobby this building, people who lobby state agencies and the like. And so it ended up adding 1200, 1400, 1600 people to the lobbying rolls that had never really participated.

Okay, thank you.

Can I just clear. The staff and Committee amendments took placement agents out of the Bill, so they're still at the FTB. I just want to make sure the Senator.

Yeah, Senator Nguyen's question was, though, is that not enough? Wouldn't that just solve problems?

Yeah, that's my question, Senator, is that if we, if the Bill allows that, then why continue to move the pathway of moving the lobbying audit and the lobbying and auditing to FTB now, when you reduce the caseload to FPPC. Yeah, I'm sorry, FPPC. When you reduce the workload now for FTB. That's my question. Is it necessary because you already reduce. The concern at the beginning has always been, is there's just too much work they can't audit. So let's move them over to FPPC.

But now that you reduce half of the number of folks that are under FTB, why do you still need to move them over? And why is it necessary to fee increase as well?

Okay, two things. First of all, we're not moving the placement agents over, right. We're keeping those at FTB.

Okay.

Okay. The fee is to cover the work. This is a very typical thing where we have a fee associated with the regulatory work for a regulated industry. And the idea is that we're trying not to add any additional burdens onto the state budget. And this is a, you know, it's true that they're, you know, lobbyists have a First Amendment right that's absolutely important and a big part of the, of our system.

But we also have a system whereby they are, they are engaging in regulated work that's highly regulated for a really good reason, because we know how much influence they have over the political process and that there's a, there's merit to, you know, ensuring that a reasonable fee to help the regulating agency do the work is applied. I will say there literally have been, the FTB has been doing basically zero audits.

Yes, they've got limited resources, but the level of disengagement from this board on this particular area of work has been extraordinary. And that includes the placement agents. I don't disagree. I agree with nearly everything that's been said by the opposition witness. But the truth is there just isn't. This work isn't happening over the FTB. And I can only think, and this is something that came up at the hearing that we all participated in last year.

At the end of the day, the folks who go work for FTB want to work on tax issues, and the folks who want to go work at FPPC want to work on this sort of political reform type of work. And that's the rationale that the author has motivates his desire to bring it over to FPPC. They just haven't been doing the work. And these resource challenges exist everywhere. They exist at FPPC as well.

You're not wrong, but the folks, the FPPC is just so much more focused on this kind of work. And that's the rationale behind the Bill.

Was that your close? Okay. Senator Newman?

Yeah, I guess I have to ask. I mean, are we aware of problems, corruption, non reporting, excessive leverage, that have not been exposed as a result of the deficit in audits? Because I'm not. That is not my sense.

Right. So, I mean, is this just because the PRa required, you know, by statute, you know, a fixed number of audits, you know, is there a problem?

Right. And I had asked Mister Hiltag, I mean, what's your sense? My sense is there isn't. Right. Because most of this information is, at least in theory, again, despite the problems with Cal Access available to the public. So I don't have a sense that there are audits that needed, that weren't done, and as a result, we had misbehavior or worse because of it. If you wouldn't mind.

Yeah. I see no evidence of a wide, even, not to say widespread, but any sort of non reporting by lobbyists. The lobbying forums are not complicated. Right. And in the sphere of what's required of public disclosure, lobbying forms are the easiest of all of the forms to fill out the paperwork. The backup that's required to maintain a file is not exhaustive. Lobbying audits typically take, you know, where I was talking about campaigns being days and weeks.

A lobbying audit can be done in our office by Franchise Tax Board in an hour, hour and a half. It's not a big deal. And so are there examples where audits have resulted in finding errors? Absolutely. That's why we have audits. But the solution to this is to get Franchise Tax Board back in the business of doing this by giving them the resources to do it.

And I would argue that as between giving an audit to an independent expenditure committee that may have influenced one of your races and spent millions of dollars, which is not getting audited either, versus auditing a lobbyist employer who paid their lobbyist a couple thousand a month for a couple years is not equivalent. And that we're really focusing on the wrong area.

But the solution shouldn't be to take this job away from Franchise Tax boards that existed for 50 years and bring it over to the FPPC where they don't have staff for this, where they obviously need money to staff up for this. And they're gonna have to build a whole division that is gonna be walled off from the enforcement division.

When we have an agency that has done it for 50 years and done a great job for 50 years who has simply run out of resources to do this. And last year, IGA supported more money for FTB to do this. This Legislature chose not to do that. We encouraged the Legislature to solve that problem.

I guess I would ask. I mean, it's a real question, do we need more audits? And what's the downside of not having more audits?

Okay. Obviously. So I can answer it two different ways. I mean, one is to say that when folks know that there's no audits, it creates a kind of a potentially dangerous situation where folks may feel a greater willingness to be fast and loose. We don't, because we're not having the audits. We don't know whether there are more problems. But the law says that they're supposed to be doing about 300 audits a year, and they do about three. So we could change the law.

I mean, maybe that's, maybe that's.

Or we could staff the positions to make sure we hit the tax points.

We haven't. Right.

They haven't prioritized it. They've got a lot of other work. I'm not, you know, not trying to knock them. Once again, this is not my Bill, but I was here at that hearing, and I remember it clearly.

You were doing so well for a while.

Yeah, right. But I do. I remember the hearing. Right. And I assume some of you were there. I know the Committee's changed a little bit, but it was pretty, there's a massive disconnect between the law and the practice.

But again, the law by design was to remove the audit function from the political sphere. Right. And I think there is some merit there. And so first order of business, probably, is to staff those positions. Fund them, and then see what happens there. And if there's a deficiency after that, maybe revisit. I guess it's not your Bill.

That's a valid approach. I would just posit we ought to do one of these things. This is one approach. I support the former chair's, but if we don't do that, we need to do something similar to what you just suggested.

And we could do that through the budget, but appreciate it.

Yes. In this flesh year of ours.

I'll just weigh in that I support this Bill. I wasn't on the Committee last year when you had these hearings, but it does, I believe that audits do drive the behavior that we want. I think we want people to know the law. We want them to follow the law. We want them to disclose the information. And a lot of times things are very complicated.

I mean, we know that as elected officials that it takes a commitment to be following the regulations that we have, and lobbyists have tremendous access to decision makers, and there is a lot of money in general in politics, and the audit should be taking place. I mean, the fact that we're supposed to be doing 300 of them and there are three a year to me indicates that it is a problem.

And recognizing that the Franchise Tax Board, although they were tasked with this, is not doing it. And the FPPC does have the interest, expertise and ability to do it. Raising the money from the lobbying community to do the audits, to me, makes sense and is something, we haven't raised the fees in years and years and years. And so to me, this seems like a common sense Bill that is addressing a real problem, even if the three audits we are doing haven't uncovered a lot.

I think if we're not doing the audits, we just don't know if there are more problems. And we also. The point is to prevent problems. So when you have audits, I do think it drives behavior change. So I do support this Bill, and I appreciate the context that you shared, and it's useful to know more about that. But I am going to be supporting it today. So is there anyone who would like to make any final comments?

And then I'll turn it back to the chair or, sorry, to the author's substitute today?

I guess I would. Your point is well taken about the lack of resources. I understand your opposition to the fee, which still makes total sense. Would you support a fee so as to get some more resources over the FTB if things stay at the status quo so as to allow them to do more of this work.

So we, lobbyists, presently pay a fee now that is split between the General Fund and the Cal Access program. Lobbying, actually, IGA was the one that suggested a fee to help Cal Access get going. Unfortunately, that has not happened. But $25 of our $50 fee already goes to the General Fund. It's just not dedicated to Franchise Tax Board. So I think there is a source of revenue.

I think also all of the committees that you all are campaigning, your campaign committees, also pay a fee also designed to help fund Cal Access. I think there are sources of revenue that could be dedicated to Franchise Tax Board within the existing system that would not require necessarily an increase in anybody's fees. But we would, but we would, but we would.

Cal Access is a totally different thing. Yeah, but it doesn't have to do with that.

These fees are not funding, 100% going to Cal Access. In other words, like, the lobbying fee is 50% to Cal Access, 50% to the General Fund. So I think there are sources of revenue we could help, maybe you find for that purpose, to help Franchise Tax Board, and we'd be open to looking at that. There are constitutional questions about fees for, for First Amendment activity. There are a couple of state Supreme Courts, not California, but other states, that have invalidated fees because it's First Amendment activity.

So I think $500 is a problem. But that's just one lawyer's opinion.

Yeah, the current fee is $50, so.

Ok. So would you like to close, Senator Allen?

Yeah. Listen, I appreciate the robust conversation. Again, I know that Senator Glazer, I'm sure he's watching this closely and is happy to engage with everybody on this. We know he's a thoughtful, thoughtful chair and thought, thoughtful author, and someone who really did a deep dive into this last year. So I'm glad. I will say I'm glad. I mean, regardless of what happens with this Bill, it's a good conversation for us to have.

I think it's important for more of the Members to really be made aware of how little of this legally mandated work is actually happening, and whether it's a matter of stepping up and giving them greater resources, or switching this work over to the FPPC, having conversations about all of us chipping in to make sure this work's actually happening.

I think it's a really important conversation for us to have, and I do appreciate the author for bringing this forward, and I'm certainly supportive of this Bill, but do appreciate the robust discussion we've had.

And just to confirm, you're accepting the amendments.

Yes, yes. Thank you. He's accepted the amendments, and that will, of course, reduce the burden on the FPPC, as the placement agents will remain under the FTB, under the amendments, among some other things.

Okay. Do we have a motion? Okay. Senator Menjivar is moving the Bill as amended to the Committee on Appropriations. Assistant, please call the roll.

[Roll Call]

Okay, the vote is four to zero, and it. zero, okay, sorry. The vote was five to zero and it's out. So now we are going to. Senator Bradford, this is SB 1328, and we are excited to see you here. Thank you for coming from your chairmanship. Over here, I'll let you present your Bill.

Wow.

Excited to see me? Thank you. SB 1328 updates and makes clear existing law procedures and requirements related to the election technology certified for use in California. California has one of the most stringent voting system testing, certification and use requirements in the country. However, it hasn't existing law as it relates to storage, maintenance and destruction of election data has not kept up with many of the advancements of technology and does not offer clear guidance on the preservation of this data.

SB 1328 is expanding upon the already existing law to clarify procedures and practices that are currently in place. Additionally, this Bill clarifies existing law related to the crime of interfering or attempting to interfere with voting to conform with current technology. Today, my lead witness from Secretary of State's office is Nikesha Robinson, speaking on behalf of this Bill. Thank you. And I respectfully ask for aye vote.

Thank you.

Good morning, Committee and Madam Chair. As stated, I am Nikesha Robinson, deputy Secretary of State over the Help America Vote act and the Office of Voting Systems Technology Assessment. The issue at hand here is we're trying to clarify three things, primarily, one, having standardized retention requirements around voting technology artifacts after each election, respectively, six months or 22 months, depending upon if it's a local election or an election with a statewide contest or federal contest.

The second thing that we're trying to capture is codifying some of the conditions that we traditionally implement during the conditions of certification for the respective voting technologies. And then lastly, updating and clarifying, as the Senator mentioned, some of the conditions that. Sorry, not the conditions, some of the. Sorry, I lost my train of thought. Excuse me. Regarding ballot printers, adding some additional language there to codify some of the conditions that we impose on ballot printers, specifically regarding reporting requirements. Thank you.

Thank you. Do you have any other lead witnesses you'd like to testify? Is there anyone in the room who would like to come forward and add their support?

Good morning, Laura Summer Cotto, on behalf of the California Association of Clerks and Election Officials in support. Thank you.

Okay, thank you. And do we have any lead witnesses in opposition who would like to come forward at this time? Okay. Seeing none in the room, we call any other opposition witnesses to come to the microphone. Seeing none, we will now bring the discussion back to the Members. Do any Members have questions or comments?

Move the Bill.

Okay, well, we will turn it back to Senator Bradford to close before we take up that motion. Go ahead, Senator Bradford.

Thank you, Committee Members and chair. This is just straightforward measure to just update the system as it relates to data, making sure it's not compromised in any way. And I respectfully ask for your vote.

Okay, thank you. We have a motion from Senator Newman, and the motion is do passed to the Committee on Public Safety. Assistant, please call the roll.

Roll Call

Okay, the Bill is seven to zero. And it's out. Congratulations. Okay, we need to lift the call, so the assistant will call.

Lifting call on item file item number two. SB 1293. Motion is do pass as amended to judiciary. Current vote is six to zero. Chair voted aye. Vice Chair voted aye. Allen?

Okay, that Bill is seven to zero, and it is out. Is there any other call to lift? No. Okay. Thank you to all the individuals who participated today. If you were not able to testify today, please submit your comments or suggestions in writing to the Senate Elections and Constitutional Amendments Committee. Your comments and suggestions are important to us, and we want to include your testimony in the official hearing record. The Senate Committee on Elections and constitutional amendments is now adjourned.