BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 308
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          Date of Hearing:  March 31, 2009

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                  Paul Fong, Chair
                  AB 308 (Cook) - As Introduced:  February 17, 2009
           
          SUBJECT  :  Special absentee voters.

           SUMMARY  :  Requires elections officials to send a special runoff  
          ballot, on which a voter may rank all the candidates, to every  
          overseas voter for any election for which there may be a runoff  
          election held within 90 days of that election.  Requires the  
          elections official to tally a vote for the highest ranked  
          candidate on a special runoff ballot if the overseas voter that  
          cast the special runoff ballot does not return a regular ballot  
          for the runoff election.  Specifically,  this bill  :

          1)Requires the elections official to send a "special runoff  
            ballot" to every special absentee voter, as defined, who is  
            temporarily living outside the United States, at every  
            election for which there may be a runoff election held within  
            90 days of that election.

          2)Requires the special runoff ballot to be sent to the voter in  
            addition to the regular runoff ballot.

          3)Requires the special runoff ballot to contain a list of all  
            offices (and a list of the candidates for those offices) being  
            contested for which there may be a runoff election held within  
            90 days of that election.

          4)Allows the special absentee voter to indicate his or her order  
            of preference for each candidate for each office on the  
            special runoff ballot.

          5)Requires the special runoff ballot to be received by the  
            elections official by the close of polls on the day of the  
            runoff election in order to be eligible to be counted.

          6)Provides that, in the event of a runoff election, the  
            elections official shall tabulate each special runoff ballot  
            as a vote for the candidate in the runoff election who is  
            ranked highest on the ballot.

          7)Requires the elections official to tabulate the regular ballot  








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            instead of the special runoff ballot from a voter if the voter  
            sent both ballots back and both were received before the close  
            of polls on election day.

          8)Requires instructions to be sent with the special runoff  
            ballot to explain the runoff voting process.

           EXISTING LAW  :

          1)Defines "special absentee voter" as an elector who is any of  
            the following:

             a)   A member of the armed forces of the United States or any  
               auxiliary branch thereof;

             b)   A citizen of the United States temporarily living  
               outside the territorial limits of the United States or the  
               District of Columbia;

             c)   Serving on a merchant vessel documented under the laws  
               of the United States; or,

             d)   A spouse or dependent of a member of the armed forces or  
               any auxiliary branch thereof.

          2)Provides that an application for a vote by mail (VBM) ballot  
            by a special absentee voter or by an overseas voter shall be  
            deemed an affidavit of registration and an application for  
            permanent VBM voter status. Provides that such an application  
            shall be accepted only if it contains the voter's name,  
            residence address for voting purposes, the address to which  
            the ballot is to be sent, the voter's political party for a  
            primary election and the voter's signature.

          3)Requires the county elections official to mail a ballot to all  
            special absentee voters and overseas voters who are permanent  
            VBM voters as soon as possible on or after the 60th day prior  
            to an election.

          4)Permits a special absentee voter to register to vote and apply  
            for a ballot by facsimile transmission.  Allows an elections  
            official to send a ballot by mail, facsimile, or electronic  
            transmission to a special absentee voter.

          5)Allows a special absentee voter who is temporarily living  








                                                                  AB 308
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            outside of the United States to return his or her ballot by  
            facsimile transmission.

          6)Allows a special absentee voter who is unable to appear at his  
            or her polling place because of being recalled to service  
            after the final day for applying for a VBM ballot to appear  
            before the elections official in the county in which the voter  
            is registered to apply for a VBM ballot.

           FISCAL EFFECT  :  Unknown.  State-mandated local program; contains  
          reimbursement direction.

           COMMENTS  :   

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

               Voters living overseas face several obstacles in exercising  
               their right to vote. These include slow communications and  
               mail delivery as well as unfamiliar and confusing  
               procedures for applying for absentee ballots, receiving  
               their ballots, and returning them. There is also a threat  
               to voter privacy and election integrity posed by some of  
               the proposals to use fax and email to facilitate these  
               burdens. Active military personnel in combat roles are in  
               the most difficult situation of all, since they are very  
               mobile and in locations where traditional postal mail is  
               understandably erratic.

               The use of a ranked ballot insures that the tight deadlines  
               imposed by the two-round runoff election format will not  
               leave out overseas voters, including those in the armed  
               forces. It has already been used successfully in Louisiana  
               and Arkansas and was recently adopted in South Carolina as  
               well. The number of elections in California that would be  
               affected is relatively small, however, every voter's right  
               to vote is sacrosanct, and every election is important.

           2)Facilitating Voting by Overseas Voters  :  Over the last six  
            years, the Legislature has made a number of changes to state  
            law to facilitate voting by military voters and other  
            California residents who are outside of the United States.  AB  
            188 (Maze), Chapter 347, Statutes of 2003, streamlined a  
            number of provisions of state law to make it easier for  
            overseas voters to receive their ballots and cast a vote.   
            Among other provisions, AB 188 did the following:








                                                                  AB 308
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                  Specified that an application for a VBM ballot by an  
               overseas voter was deemed to be a request for voter  
               registration (if the voter was not already registered to  
               vote) and an application for permanent VBM voter status.   
               While California law previously allowed an application for  
               a VBM ballot made by federal post card application to serve  
               as an affidavit for registration, such an application would  
               register the voter for that election only.  AB 188 allowed  
               any VBM ballot request received from an overseas voter to  
               be considered a request for voter registration, and the  
               voter's registration was permanent.

                 Made all overseas voters permanent VBM voters, thereby  
               eliminating the need for overseas military voters and other  
               overseas voters to request a VBM ballot for each separate  
               election.

                 Required that all overseas voters be mailed a VBM ballot  
               60 days before the election, to ensure that the voter has  
               sufficient time to receive, complete, and return his or her  
               ballot.  Also repealed a requirement that these overseas  
               voters make certain written declarations in order to be  
               eligible to receive their VBM ballot 60 days before the  
               election.

                 Allowed the elections official to send an overseas voter  
               his or her ballot by electronic transmission.

            In 2004, the Legislature approved and the Governor signed AB  
            2941 (Bates), Chapter 821, Statutes of 2004, which permits  
            special absentee voters who are temporarily living outside the  
            United States to return their ballots by facsimile  
            transmission.  AB 2941 was modeled after the procedures  
            adopted by the Secretary of State (SOS) for the 2003 recall  
            election, when the SOS had first ordered ballots returned from  
            overseas voters by fax to be counted.  AB 2941 was intended to  
            accommodate voters who, due to potential delays in  
            international mail delivery and structural barriers present in  
            combat areas, may not be able to receive, vote, and return a  
            ballot in the 60-day period provided for overseas voters.   
            Last year, the Legislature approved and the Governor signed AB  
            2786 (Salas), Chapter 252, Statutes of 2008, which extended  
            the sunset date on the provisions of AB 2941.









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            In addition to these procedures, California law allows  
            overseas voters to register to vote and apply for ballots by  
            facsimile and allows the elections official to transmit a  
            ballot to an overseas voter by facsimile or other electronic  
            transmission.

           1)Voter Confusion  :  Under the provisions of this bill, overseas  
            voters will receive two similar ballots at the same time for  
            certain elections.  One ballot will be for the first round of  
            the election, while the second ballot will be the "special  
            runoff ballot" that is being provided in the event that (1)  
            there is a runoff election, and (2) the voter does not have  
            enough time to complete and return the regular ballot for that  
            runoff election.  Depending on the races and/or measures that  
            are on the ballot at the initial election, the two ballots may  
            contain all the same races and candidates, or the first ballot  
            may contain races and/or measures that do not appear on the  
            special runoff ballot.  On the first ballot, the voter will  
            vote for his or her preferred candidate - just as he or she  
            would in any other election - while on the special runoff  
            ballot, the voter would rank the candidates in order of  
            preference.  Additionally, to the extent that there is a  
            runoff, the same voter will receive a regular ballot for that  
            runoff election at which he or she will vote for his or her  
            preferred candidate, rather than ranking the candidates in  
            order of preference.

          As a result, if this bill becomes law, at certain elections,  
            overseas voters will receive three different ballots for two  
            elections, even though ultimately, only two of those ballots  
            (at most) will be counted.  Additionally, the ballots will use  
            two different voting methods - two of the ballots will ask the  
            voter to choose his or her preferred candidate, while the  
            third ballot will instruct the voter to rank candidates in  
            order of preference.  Given these circumstances, it is likely  
            that there will be at least some voter confusion as to which  
            election each ballot is for, when to return each ballot, how  
            to vote on each ballot, and whether to vote in the same race  
            three times on three different ballots for just two elections  
            (an election and a runoff election).

           2)Other States  :  The committee is aware of three states that  
            currently require that overseas voters be sent a runoff ballot  
            for use in a runoff election if one is necessary.  Those three  
            states are Arkansas, Louisiana, and South Carolina.  In those  








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            states, the "runoff ballot" was implemented largely out of  
            necessity due to the close proximity of state runoff elections  
            to the first round election.  In Louisiana, a runoff election  
            is held just one month after the statewide general election.   
            In Arkansas, a runoff election is held just three weeks after  
            the statewide primary election.  And in South Carolina, a  
            runoff election is held just two weeks after the statewide  
            primary election. The proximity of these runoff elections to  
            the initial round of voting makes it next to impossible for  
            overseas voters to receive and return a ballot for the runoff  
            election.

          In California, however, runoff elections are not typically held  
            in such close proximity to first round elections.  In special  
            elections held to fill vacancies in the Legislature or  
            Congress, the runoff election (if necessary) is held 8 or 9  
            weeks after the first round.  As such, it's unclear whether  
            the situation that prompted Arkansas, Louisiana, and South  
            Carolina to adopt the procedure to send runoff ballots to  
            overseas voters exists in California.

           3)Previous Legislation  :  AB 1662 (Cook) of 2007 was  
            substantially similar to this bill.  AB 1662 was held on the  
            Senate Appropriations Committee's suspense file.  
           
           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Legion, Department of California

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :    Ethan Jones / E. & R. / (916) 319-2094