BILL NUMBER: AB 2941 CHAPTERED 09/27/04 CHAPTER 821 FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2004 APPROVED BY GOVERNOR SEPTEMBER 27, 2004 PASSED THE ASSEMBLY AUGUST 24, 2004 PASSED THE SENATE AUGUST 19, 2004 AMENDED IN SENATE AUGUST 9, 2004 AMENDED IN ASSEMBLY MAY 20, 2004 AMENDED IN ASSEMBLY APRIL 27, 2004 AMENDED IN ASSEMBLY APRIL 14, 2004 INTRODUCED BY Assembly Member Bates (Coauthors: Assembly Members Benoit, Dutton, Harman, La Malfa, Maddox, Maze, Pacheco, and Strickland) (Coauthors: Senators McPherson and Oller) FEBRUARY 20, 2004 An act to amend, repeal, and add Sections 3102 and 3103 of, and to add and repeal Section 3103.5 of, the Elections Code, relating to elections, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 2941, Bates. Special absentee voters: voting by facsimile. Existing law permits an absent voter to return a ballot by mail to the elections official from whom it came or by personal delivery to the elections official or to a precinct board member at any polling place within the jurisdiction. This bill would permit a special absentee voter who is temporarily living outside of the territorial limits of the United States or the District of Columbia to return his or her ballot by facsimile transmission to the elections official. The ballot would have to be received by the closing of the election day polls and accompanied by an identification envelope and an oath of voter declaration in a prescribed form. A special absentee voter would be encouraged to return his or her ballot by facsimile transmission only when necessary for the ballot to be received on election day. This bill would require that the special absentee voter agree to waive his or her right to a secret ballot, but the elections official would nevertheless be required to adopt appropriate procedures to protect the secrecy of ballots returned by facsimile transmission. The elections official would be required to determine the voter's eligibility to vote by comparing the voter's signature from the materials returned by facsimile transmission to the signature on the voter's affidavit of registration. This bill would require the Secretary of State to report to the Legislature by December 31, 2008, regarding the number of ballots returned by facsimile transmission and the benefits and problems resulting from the return of ballots by facsimile transmission. This bill would remain in effect only until January 1, 2009. By requiring that local elections officials implement the provisions of this bill regarding the return by special absentee voters of ballots by facsimile transmission, 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, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. This bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 3102 of the Elections Code is amended to read: 3102. (a) Applications for the ballots of special absentee voters shall be received and, except as provided in Section 3103.5, the ballots shall be received and canvassed, at the same time and under the same procedure as absent voter ballots, insofar as that procedure is not inconsistent with this chapter. (b) This section shall remain in effect only until January 1, 2009, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2009, deletes or extends that date. SEC. 2. Section 3102 is added to the Elections Code, to read: 3102. (a) Applications for the ballots of special absentee voters shall be received, and the ballots shall be received and canvassed at the same time and under the same procedure as absent voter ballots, insofar as that procedure is not inconsistent with this chapter. (b) This section shall become operative January 1, 2009. SEC. 3. Section 3103 of the Elections Code is amended to read: 3103. (a) Any application made pursuant to this chapter that is received by the elections official prior to the 60th day before the election shall be kept and processed on or after the 60th day before the election. (b) The elections official shall immediately send the voter a ballot in a form prescribed and provided by the Secretary of State. The elections official shall send with the ballot a list of all candidates who have qualified for the ballot by the 60th day before the election and a list of all measures that are to be submitted to the voters and on which the voter is qualified to vote. The voter shall be entitled to write in the name of any specific candidate seeking nomination or election to any office listed on the ballot. (c) Notwithstanding Section 15341 or any other provision of law, any name written upon a ballot for a particular office pursuant to subdivision (b) shall be counted for the office or nomination, providing the candidate whose name has been written on the ballot has, as of the date of the election, qualified to have his or her name placed on the ballot for the office, or has qualified as a write-in candidate for the office. (d) Except as provided in Section 3103.5, the elections official shall receive and canvass special absentee voter ballots described in this section under the same procedure as absent voter ballots, insofar as that procedure is not inconsistent with this section. (e) In the event that a voter executes a special absentee ballot pursuant to this section and an application for an absentee ballot pursuant to Section 3101, the elections official shall cancel the voter's permanent absent voter status, and process the application in accordance with Chapter 1 (commencing with Section 3000). (f) Notwithstanding any other provision of law, a special absentee voter who qualifies pursuant to this section may, by facsimile transmission, register to vote and apply for an absent voter's ballot. Upon request, the elections official may send to the qualified special absentee voter either by mail, facsimile, or electronic transmission the special absentee ballot or, if available, an absent voter's ballot pursuant to Chapter 1 (commencing with Section 3000). (g) This section shall remain in effect only until January 1, 2009, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2009, deletes or extends that date. SEC. 4. Section 3103 is added to the Elections Code, to read: 3103. (a) Any application made pursuant to this chapter that is received by the elections official prior to the 60th day before the election shall be kept and processed on or after the 60th day before the election. (b) The elections official shall immediately send the voter a ballot in a form prescribed and provided by the Secretary of State. The elections official shall send with the ballot a list of all candidates who have qualified for the ballot by the 60th day before the election and a list of all measures that are to be submitted to the voters and on which the voter is qualified to vote. The voter shall be entitled to write in the name of any specific candidate seeking nomination or election to any office listed on the ballot. (c) Notwithstanding Section 15341 or any other provision of law, any name written upon a ballot for a particular office pursuant to subdivision (b) shall be counted for the office or nomination, providing the candidate whose name has been written on the ballot has, as of the date of the election, qualified to have his or her name placed on the ballot for the office, or has qualified as a write-in candidate for the office. (d) The elections official shall receive and canvass special absentee voter ballots described in this section under the same procedure as absent voter ballots, insofar as that procedure is not inconsistent with this section. (e) In the event that a voter executes a special absentee ballot pursuant to this section and an application for an absentee ballot pursuant to Section 3101, the elections official shall reject the voted ballot previously cast, cancel the voter's permanent absent voter status, and process the application in accordance with Chapter 1 (commencing with Section 3000). (f) Notwithstanding any other provision of law, a special absentee voter who qualifies pursuant to this section may, by facsimile transmission, register to vote and apply for an absent voter's ballot. Upon request, the elections official may send to the qualified special absentee voter either by mail, facsimile, or electronic transmission the special absentee ballot or, if available, an absent voter's ballot pursuant to Chapter 1 (commencing with Section 3000). (g) This section shall become operative January 1, 2009. SEC. 5. Section 3103.5 is added to the Elections Code, to read: 3103.5. (a) (1) A special absentee voter who is temporarily living outside of the territorial limits of the United States or the District of Columbia may return his or her ballot by facsimile transmission. To be counted, the ballot returned by facsimile transmission must be received by the voter's elections official no later than the closing of the polls on election day and must be accompanied by an identification envelope containing all of the information required by Section 3011 and an oath of voter declaration in substantially the following form: OATH OF VOTER I, ______________________, acknowledge that by returning my voted ballot by facsimile transmission I have waived my right to have my ballot kept secret. Nevertheless, I understand that, as with any absent voter, my signature, whether on this oath of voter form or my identification envelope, will be permanently separated from my voted ballot to maintain its secrecy at the outset of the tabulation process and thereafter. My residence address is _____________________________________________. (Street Address) (City) (ZIP Code) My current mailing address is _______________________________________. (Street Address) (City) (ZIP Code) My e-mail address is ______________. My facsimile transmission number is _________. I am a resident of __________ County, State of California, and I have not applied, nor intend to apply, for an absentee ballot from any other jurisdiction for the same election. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated this _____ day of _____, 20____. (Signed) ___________________________________________________________ voter (power of attorney cannot be accepted) YOUR BALLOT CANNOT BE COUNTED UNLESS YOU SIGN THE ABOVE OATH AND INCLUDE IT WITH YOUR BALLOT AND IDENTIFICATION ENVELOPE, ALL OF WHICH ARE RETURNED BY FACSIMILE TRANSMISSION. (2) Notwithstanding the voter's waiver of the right to a secret ballot, each elections official shall adopt appropriate procedures to protect the secrecy of absentee ballots returned by facsimile transmission. (3) Upon receipt of an absentee ballot returned by facsimile transmission, the elections official shall determine the voter's eligibility to vote by comparing the signature on the return information with the signature on the voter's affidavit of registration. The ballot shall be duplicated and all materials preserved according to procedures set forth in this code. (4) Notwithstanding paragraph (1), a special absentee voter who is permitted to return his or her ballot by facsimile transmission is, nonetheless, encouraged to return his or her ballot by mail or in person if possible. A special absentee voter should return a ballot by facsimile transmission only if doing so is necessary for the ballot to be received before the close of polls on election day. (b) The Secretary of State shall make a recommendation to the Legislature, no later than December 31, 2008, on the benefits and problems, if any, derived from permitting qualified special absentee voters to return their ballots by facsimile transmission, and shall include in the recommendation the number of ballots returned by facsimile transmission pursuant to this section. (c) This section shall remain in effect only until January 1, 2009, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2009, deletes or extends that date. SEC. 6. Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund. SEC. 7. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: To ensure that special absentee voters who are temporarily living outside the territorial limits of the United States or the District of Columbia are provided the opportunity in time for the November 2, 2004, statewide general election to return their ballots by facsimile transmission, it is necessary that this act take immediate effect.