BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1340
                                                                  Page  1

          Date of Hearing:  April 21, 2009

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                  Paul Fong, Chair
            AB 1340 (Bonnie Lowenthal) - As Introduced:  February 27, 2009
           
          SUBJECT  :  Absentee voters.

           SUMMARY  :  Allows a ballot from a special absentee voter, as  
          defined, who is temporarily living outside the United States, or  
          who is called for military service within the United States on  
          or after the final day to apply for a vote by mail (VBM) ballot,  
          to arrive up to 10 days after the election and still be counted,  
          provided that the ballot is postmarked on or before election  
          day.  Makes corresponding changes.

           EXISTING LAW  :

          1)Defines a "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 of 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)Requires all VBM ballots to be received by the elections  
            official from whom they were obtained or by the precinct board  
            no later than the close of polls on election day in order to  
            be counted.

          3)Provides that an application for a 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  








                                                                  AB 1340
                                                                  Page  2

            is to be sent, the voter's political party for a primary  
            election and the voter's signature.

          4)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.

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

          6)Allows a special absentee voter who is temporarily living  
            outside of the United States to return his or her ballot by  
            facsimile transmission.

          7)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:

               AB 1340 allows military and overseas voters' ballots that  
               are postmarked on or before Election Day to be counted if  
               they are received by their elections official 10 days after  
               Election Day.

               Special absentee voters confront a variety of challenges  
               when voting that are often out of their control.  Given the  
               time necessary to mail a ballot to a voter overseas and  
               mail the ballot back, the ballot may not be received by the  
               elections official prior to the polls closing on Election  
               Day.  California law allows a special absentee voter to  
               return a voted ballot by facsimile transmission.  However  
               in order to be counted, the ballot must be received by the  
               voter's county elections official before the polls on  
               Election Day and must be accompanied by a signed "oath of  








                                                                  AB 1340
                                                                  Page  3

               voter" declaration acknowledging the voter is waiving their  
               right to cast a secret ballot.

               AB 1340 provides military and overseas voters with another  
               option to send back their ballot - one that will allow them  
               to retain their right to a secret ballot.

               Eighteen other states permit military and overseas voters  
               to exercise an option that is identical or similar to the  
               one found in AB 1340.

           2)Florida Law  :  The issue of counting VBM ballots received after  
            election day gained increased attention during the aftermath  
            of the 2000 Presidential Election in Florida.  VBM ballots  
            cast in Florida that are received from overseas are counted if  
            received up to 10 days after the election, provided that the  
            ballot is signed and dated or postmarked on or prior to  
            election day.  That provision of Florida law is the result of  
            a consent decree, entered into in 1982 due to concerns that  
            overseas voters did not have sufficient time between the  
            primary and general election (which were only a month apart)  
            to receive, vote and return their ballots.

           3)Breaking New Ground  :  If this bill passes, it will represent  
            the first time that California has allowed any ballot which  
            was received after election day to be counted.  Florida's  
            experience with counting ballots that arrive after election  
            day shows that adopting such a policy can result in a vote  
            counting process fraught with uncertainty, ambiguity, and  
            unequal treatment of votes.  In a review of overseas VBM  
            ballots that were counted in Florida in 2000, the New York  
            Times found that hundreds of ballots that arrived after  
            election day and were postmarked after the election were  
            improperly counted.

          The committee should determine whether it wishes to break this  
            new policy ground, particularly given the potential for  
            problems similar to those experienced in Florida.

           4)Illegible and Missing Postmarks  :  It is not uncommon for a  
            postmark to be smudged or otherwise illegible.  Occasionally,  
            mail does not receive a postmark at all.  Under existing law,  
            this is not an issue in California, as all vote by mail  
            ballots are required to be received by the close of polls on  
            election day.  Under this bill, however, an illegible or  








                                                                  AB 1340
                                                                  Page  4

            missing postmark could result in a voter's ballot being  
            discarded.  Voters may be given a false sense of security that  
            their ballots will be counted as long as they are mailed by  
            election day, only to have some ballots disqualified due to  
            the lack of a legible postmark.  
           
           5)Delayed Canvass  :  Under existing law, by the close of polls on  
            election day, county elections officials have received all the  
            materials necessary to complete the official canvass of  
            ballots.  This bill would require county elections officials  
            to begin the official canvass of ballots before they have  
            received all the ballots that will be included in the final  
            official canvass.  While many smaller counties have no  
            difficulty completing the official canvass of ballots in the  
            28 day deadline, larger counties frequently take the full  
            amount of time available to certify election results.   
            Especially since larger counties would likely receive the  
            largest number of ballots after election day, this bill could  
            hinder the ability of a number of counties to certify election  
            results by the 28th day after an election, as required by law.

          Even in elections with relatively low turnout, allowing ballots  
            to arrive up to 10 days after the election and still be  
            counted could create problems for elections officials.  When  
            elections officials finish processing all the ballots in their  
            possession and complete all the other tasks required as part  
            of the official canvass of an election, the election commonly  
            is certified at that point, even though the deadline for  
            certifying an election may be days away.  In the case of  
            special elections held to fill vacancies in the Legislature or  
            Congress, for instance, it is not uncommon for an election to  
            be certified just a few days after the election took place.

          Under the provisions of this bill, however, the elections  
            official would have to wait until at least the 10th day after  
            an election before completing the official canvass and  
            certifying election results.  This could delay the filling of  
            vacancies and, in the case of primary elections, could delay  
            the preparation and printing of ballots for a subsequent  
            general or runoff election.  To the extent that this bill  
            delays the completion of the official canvass at a primary  
            election, this bill could actually make it less likely that an  
            overseas voter will have adequate time to vote and return a  
            ballot for the general or runoff election, because the delay  
            of finalizing the official canvass while awaiting the  








                                                                  AB 1340
                                                                  Page  5

            potential arrival of overseas ballots could delay the  
            production and mailing of ballots for the general or runoff  
            election.

           6)Alternative Voting Methods  :  In March 2002, San Francisco  
            voters approved an initiative requiring the city to use  
            Instant Runoff Voting (IRV) for city elections.  San Francisco  
            voters first used IRV in an election in November 2004.  Under  
            IRV, voters rank candidates for each office, and the voters'  
            first choices are tallied.  If no candidate receives a  
            majority of first choices, the candidate who was ranked first  
            on the fewest number of ballots is eliminated, and the vote  
            from each voter who had ranked that candidate first is  
            transferred to the next ranked candidate on that voter's  
            ballot.  This process is repeated until one candidate receives  
            a majority of votes.

          In addition to San Francisco, voters in Berkeley, Oakland, and  
            San Leandro have approved the use of IRV in certain elections.  
             Additionally, AB 1121 (Davis), which is also being heard in  
            this committee today, would allow up to 10 general law cities  
            and counties to conduct elections using IRV as part of a pilot  
            project.

          This bill could complicate efforts for local governments to  
            adopt such alternative voting methods.  Because IRV requires  
            all ballots to be tabulated in a first round before votes can  
            be reallocated to other candidates, it appears that  
            jurisdictions utilizing IRV must receive all ballots before  
            they can begin the final tabulation of election results.   
            Jurisdictions using IRV could have their election results  
            regularly delayed by days or even weeks as the election  
            official waited for the receipt of additional vote by mail  
            ballots that contained a postmark on or before election day.  
          
           7)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:
           
                  Specified that an application for a VBM ballot by an  








                                                                  AB 1340
                                                                  Page  6

               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.
             

          1)Arguments in Support  :  According to the sponsor of this bill,  








                                                                  AB 1340
                                                                  Page  7

            Secretary of State Debra Bowen:
           
                Military and overseas voters confront a variety of  
               challenges when voting that are often out of their control.  
                Given the time necessary to mail a ballot to a voter  
               overseas and mail the ballot back, the ballot may not be  
               received by the elections official prior to the polls  
               closing on Election Day.

               According to the U.S. Election Assistance Commission's 2008  
               Election Day survey completed by the counties,  
               approximately 102,983 ballots were sent out to both  
               military and overseas voters.  Out of the 69,805 ballots  
               returned and submitted for counting, an estimated 65,836  
               ballots were counted and 3,969 ballots were rejected.  Over  
               half of the rejected ballots, approximately 1,938 ballots,  
               were rejected due to missing the Election Day delivery  
               deadline.

               California law currently allows military and overseas  
               voters to return a voted ballot by facsimile transmission.   
               However, in order to be counted, the ballot must be  
               received by the voter's county election official before the  
               polls close on Election Day and must be accompanied by a  
               signed "oath of voter" declaration acknowledging the voter  
               is waiving their right to cast a secret ballot.

               AB 1340 provides military and overseas voters with another  
               option to send back their ballot-one that will allow them  
               to retain their right to a secret ballot.

           2)Related Legislation  :  AB 1367 (Fletcher), which is also being  
            heard in this committee today, would allow ballots from  
            specified members of the military to arrive up to 21 days  
            after the election and still be counted, provided that such  
            ballots were cast by election day.

          SB 582 (Dutton), which is being heard in the Senate Elections,  
            Reapportionment and Constitutional Amendments Committee today,  
            would allow ballots from specified members of the military to  
            arrive up to 21 days after the election and still be counted,  
            provided that such ballots were cast by election day.  

          REGISTERED SUPPORT / OPPOSITION  :   









                                                                  AB 1340
                                                                  Page  8

           Support 
           
          Secretary of State Debra Bowen (sponsor)
          California Common Cause
          National Peace Corps Association

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