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