BILL ANALYSIS
SB 1050
Page 1
Date of Hearing: June 21, 2005
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Tom Umberg, Chair
SB 1050 (Bowen) - As Introduced: February 22, 2005
SENATE VOTE : 23-15
SUBJECT : Elections: write-in candidates.
SUMMARY : Requires a write-in vote to be counted if the intent
of the voter can be determined, even if the voter has failed to
mark or slot the voting space next to the write-in space on the
ballot. Specifically, this bill :
1)Provides that, for a voting system in which write-in spaces
appear directly below the list of candidates for each office
and provide a voting space, the voting space next to the
write-in space shall be marked or slotted as directed in the
voting instructions for the convenience of the elections
official counting the ballot.
2)Specifies that, notwithstanding the provision that provides
that the voting space next to the write-in space shall be
marked or slotted as directed in the voting instructions, the
failure by a voter to mark or slot the voting space next to
the write-in space shall not preclude the voter's ballot for a
qualified write-in candidate from being counted if the intent
of the voter can be determined.
EXISTING LAW provides:
1)For voting systems in which write-in spaces appear directly
below the list of candidates for each office and provide a
voting space, no write-in vote shall be counted unless the
voting space next to the write-in space is marked or slotted
as directed in the voting instructions.
2)For voting systems in which write-in spaces appear separately
from the list of candidates for that office and do not provide
a voting space, the name of the write-in candidate, if
otherwise qualified, shall be counted if it is written in the
manner described in the voting instructions.
FISCAL EFFECT : This bill is keyed non-fiscal.
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COMMENTS :
1)Purpose of the Bill : According to the author:
Elections Code Section 15340 allows voters to write the
name of any candidate for any public office, including that
of President and Vice President of the United States, on
the ballot of any election.
Elections Code Section 15342 states a vote for any write-in
candidate for office shall be counted if the voting space
next to the write-in space is also marked as directed in
the voting instructions. Reasonable facsimiles of the
spelling of a qualified write-in candidate's name can be
counted for that candidate as well, as long as the oval
next to the name is filled in.
This bill amends Elections Code Section 15342 to make it
clear that the requirement to mark the voting space next to
the write-in candidate's name is solely for the convenience
of the elections official counting the ballot. A voter who
casts a ballot for a write-in candidate is entitled to have
that vote counted, even if they don't fill in the oval next
to the candidate's name, if the intent of the voter can be
determined.
Some of the elections officials who argue against this
measure do so by saying it will require them to look at
every ballot by hand. This is simply incorrect.
What an elections official would do would be to, for
example in the San Diego mayor's race, set the vote
tabulator to count or kick out ballots where there was no
oval filled in for that particular race. Then, the
elections officials would count those ballots by hand,
which they'd have to do anyway if the oval had been filled
in because there's no other way to determine which name was
written into the space.
2)San Diego Mayor's Race : Donna Frye was a qualified write-in
candidate for mayor in the city of San Diego at the November
2004 general election. When the official canvass of election
results was completed, it showed Frye finishing second to
incumbent mayor Dick Murphy by 2,108 votes. A recount,
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requested by five media organizations and two Frye supporters,
uncovered a total of 5,551 ballots in which a voter wrote-in
Frye's name on the ballot in the correct location, but did not
darken the oval next to the write-in space. Had those ballots
been counted for Frye, she would have won the election by
3,443 votes. However, the registrar of voters in San Diego
County refused to count those votes, citing state law that
requires the oval to be filled-in in order for a write-in vote
to count.
This bill states that the requirement that the oval next to a
write-in space be filled-in is for the convenience of the
elections official, and that the failure of a voter to mark or
slot the voting space shall not preclude the voter's ballot
for a qualified write-in candidate from being counted, if the
intent of the voter can be determined. Had this bill been in
effect prior to the San Diego mayor's race, the 5,551 ballots
in which a voter wrote-in Frye's name on the ballot in the
correct location, but did not darken the oval next to the
write-in space, would have been counted.
3)Litigation : On December 30, 2004, a lawsuit was filed on
behalf of two Donna Frye supporters arguing that the 5,551
ballots in which a voter wrote-in Frye's name, but did not
darken the oval next to the write-in space, should be counted.
The attorney that filed the lawsuit contended that because
San Diego's city charter does not explicitly require the oval
next to the write-in space to be darkened, the city charter
should take precedence over the state's election law and the
votes should be counted.
On February 2, 2005, a state judge rejected that lawsuit,
stating "I find that Elections Code 15342(a) should be given
its plain meaning. What it means is what is says: To vote, to
cast your vote, you have to fill in the oval." This case was
appealed, but the appeal was dropped shortly after San Diego
Mayor Dick Murphy announced his resignation.
4)Is This Bill Overly Burdensome on Elections Officials ? This
bill requires every write-in vote to be counted, regardless of
whether the voter filled in the oval next to the space for a
write-in vote, if the voter's intent can be determined, even
if there is no possibility that the write-in candidate could
win the election. As a result, this bill will result in a
significant increase in workload and costs for elections
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officials when completing the official canvass of election
results.
For instance, at the November 2004 general election, the 79th
Assembly District had two candidates that appeared on the
ballot, with one additional candidate that qualified as a
write-in candidate. The winning candidate received 78,565
votes and the other candidate who appeared on the ballot
received 13,584 votes. The write-in candidate received 27
votes. More than 10,000 ballots in the 79th Assembly District
were left blank.
Under existing law, which requires the bubble next to the space
for a write-in vote to be filled-in if the write-in vote is to
be counted, the elections official needed to manually examine
the ballots on which a voter had filled in the space for a
write-in vote to complete the canvass. Under this bill,
however, the elections official would need to manually examine
all 10,000+ ballots that did not have a bubble filled-in, even
though there was no chance that those 10,000 votes would have
changed the outcome of the election.
In addition, this problem is likely to be especially significant
for those races that are further down on the ballot, where a
large number of voters do not cast a vote. In November 2004,
voters in the Kings River Conservation District chose from
among four candidates for one at-large seat. While 43,943
voters who lived in the Conservation District cast a ballot at
the November 2004 election, 11,974 did not cast a ballot in
the race for Conservation District board member. The winning
candidate received just 11,452 votes, more than 500 votes
fewer than the total number of ballots left blank in that
race. Under this bill, elections officials could be forced to
visually examine thousands of ballots in this and hundreds of
other districts where voters frequently decline to vote for a
candidate. Although races that are further down on the ballot
do not typically have qualified write-in candidates, if even a
small number of such races have qualified write-in candidates,
this bill will dramatically increase the workload for
elections officials.
The committee may wish to consider whether this bill, as
currently written, would apply too broadly and impose too
great a burden on county elections officials.
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5)Undiscovered Overvotes ? This bill specifies that the
requirement that the oval next to the write-in space be marked
or slotted is for the convenience of the elections official
counting the ballot, and that the failure to mark this space
shall not preclude a write-in vote from being counted if the
intent of the voter can be determined. The author has
suggested that county elections officials could comply with
this bill by programming the vote tabulating machines to
separate out those ballots on which a voter failed to fill in
the oval for any candidate in any race in which there is a
qualified write-in candidate.
However, it appears that this procedure would result in the
improper tabulation of votes. Essentially, this bill
establishes that a write-in vote for a qualified write-in
candidate is a valid vote, regardless of whether the voter
filled in the corresponding oval. As such, if a voter filled
in the bubble corresponding to Candidate Brown, who appeared
on the ballot and the same voter also wrote in the name of
qualified write-in Candidate Smith for the same race, but did
not fill in the oval next to the write-in space, under the
provisions of this bill, that ballot should be treated as an
overvote. However, under the process for completing the
canvass described by the author, this ballot would not be
separated out by the vote tabulating machine. Instead, such a
ballot would improperly be counted as a valid vote for
Candidate Brown, as the vote tabulating machine would not
recognize the fact that the voter had also written-in the name
of Candidate Smith.
6)Referral to the Appropriations Committee : This bill has been
keyed non-fiscal by Legislative Counsel. Nonetheless, as
noted in Comment #4 above, this bill could dramatically
increase the workload and costs to county elections officials
to complete the official canvass of election results. If this
bill is later determined to contain a reimbursable state
mandate, it could result in substantial state costs. As a
result, the Appropriations Committee has requested that this
bill, if approved by this committee, be re-referred to the
Appropriations Committee. The Assembly Rules Committee has
approved that request.
7)Arguments in Opposition : Secretary of State Bruce McPherson
and the California Association of Clerks and Election
Officials (CACEO) both take an "oppose unless amended"
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position on this bill, proposing that the bill be amended to
apply only in the case of a manual recount. In it's
opposition letter, CACEO writes:
[T]his proposal would require jurisdictions utilizing
optical scan voting systems to visually inspect each side
of every ballot (and for multi-card optical scan voting
systems, each side of every card of every ballot) for
potential write-in votes. This would be extremely costly
and time-consuming. Jurisdictions would not be able to
complete the canvass within the statutory timeframe, and
contests would not be decided for weeks following the
election. Requiring visual inspection of all ballots or
ballot cards would eliminate the advantages of automated
vote count systems.
8)Similar Legislation : AB 43 (Vargas), pending in the Senate
Committee on Elections, Reapportionment and Constitutional
Amendments, provides that, in the event of a recount,
provisions of law governing the counting of write-in votes
shall be liberally construed to ensure that each ballot is
counted if the intent of the voter can be determined,
regardless of whether the voting instructions have been
literally complied with. AB 43 was approved by this committee
by a vote of 4-1, and was approved by the Assembly by a vote
of 45-33.
REGISTERED SUPPORT / OPPOSITION :
Support
Protection & Advocacy, Inc.
Opposition
California Association of Clerks and Election Officials (unless
amended)
Secretary of State Bruce McPherson (unless amended)
Solano County Board of Supervisors
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094