BILL ANALYSIS AB 308 Page 1 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 AB 308 Page 2 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 Page 3 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 Page 4 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. AB 308 Page 5 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 AB 308 Page 6 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