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
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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
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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
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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
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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
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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,
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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 :
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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