BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 461
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          Date of Hearing:   April 12, 2011

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                  Paul Fong, Chair
                    AB 461 (Bonilla) - As Amended:  April 5, 2011
           
          SUBJECT  :   Write-in candidates.

           SUMMARY  :   Requires a write-in vote to be counted, if the 
          voter's intent can be determined, regardless of whether the 
          voter has complied with the voting instructions.  Specifically, 
           this bill  :  provides that in the event of a manual recount 
          conducted pursuant to state law, provisions of the law governing 
          the counting of write-in votes shall be liberally construed to 
          ensure that each ballot is counted if the intent of the voter 
          can be determined, regardless of whether the voter has complied 
          with the voting instructions.

           EXISTING LAW  :

          1)Provides every voter the right to write the name of any 
            candidate for any public office, including that of President 
            and Vice President of the United States, on the ballot of any 
            election.

          2)Provides that for voting systems in which write-in spaces 
            appear directly below the list of candidates for that office 
            and provide a voting space, no write-in vote shall be counted 
            unless the voting space next to the write-in space is marked 
            or slotted as directed in the voting instructions.

          3)Provides that for voting systems in which write-in spaces 
            appear separately from the list of candidates for that office 
            and do not provide a voting space, the name of the write-in 
            candidate, if otherwise qualified, shall be counted if it is 
            written in a manner described in the voting instructions.

          4)Requires state law governing vote by mail voting be liberally 
            construed in favor of the vote by mail voter.

          5)Requires state law governing provisional voting be liberally 
            construed in favor of the provisional voter.

          6)Requires state law governing the approval of voting systems be 
            liberally construed so that the real will of the electors will 








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            not be defeated by any informality or failure to comply with 
            all of the provisions of the law.

           FISCAL EFFECT  :   Keyed non-fiscal by the Legislative Counsel.






           COMMENTS  :   

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


               AB 461 helps protect against voter disenfranchisement. This 
               bill extends a similar allowance that is currently afforded 
               to absentee and provisional voting in order to honor the 
               voter's intent. 



               Existing law requires that a ballot for a qualified 
               write-in candidate be counted if, on specified voting 
               systems, the candidate's name is written on the ballot in 
               the blank space provided and the voting space next to the 
               write-in space, if provided, is marked according to voting 
               instructions. It further requires that, for other voting 
               systems, a ballot for a write-in candidate, if otherwise 
               qualified, be counted if the name is written in the manner 
               described in the voting instructions.



               Existing law provides that provisions governing absentee 
               and provisional voting shall be liberally construed in 
               favor of the voter.  However, there is no provision 
               providing for the liberal construction of write-in voting 
               laws when a voter writes-in the name of a qualified 
               write-in candidate, but neglects to fill in the oval.



               A recount in a mayoral race in 2004 brought the deficiency 
               in current law to light.  A qualified write-in candidate 








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               lost the election by a close margin because a great number 
               of voters wrote-in the candidate's name in the correct 
               location, but did not darken the oval next to the write-in 
               space. The county registrar of voters cited state law that 
               requires the oval to be completed in order for a write-in 
               vote to count.


               AB 461 would require a liberal construction of write-in 
               voting provisions in the event of a manual recount to 
               ensure that a ballot is counted if the voter's intent can 
               be determined, regardless of whether the voter has 
               literally complied with the voting instructions.

           2)The Case of Donna Frye  :  Donna Frye was a qualified write-in 
            candidate for mayor in the city of San Diego at the November 
            2004 general election.  When the official canvass of election 
            results was completed, it showed Frye finishing second to 
            incumbent mayor Dick Murphy by 2,108 votes.  A recount, 
            requested by five media organizations and two Frye supporters, 
            uncovered a total of 5,551 ballots in which a voter wrote-in 
            Frye's name on the ballot in the correct location, but did not 
            darken the oval next to the write-in space.  Had those ballots 
            been counted for Frye, she would have won the election by 
            3,443 votes.  However, the registrar of voters in San Diego 
            County refused to count those votes, citing state law that 
            requires the oval to be darkened in order for a write-in vote 
            to count.  The registrar's position was subsequently upheld by 
            the San Diego Superior Court.

            This bill would provide that, in the event of a manual 
            recount, provisions of law governing the counting of write-in 
            votes shall be liberally construed to ensure that each ballot 
            is counted if the intent of the voter can be determined, 
            regardless of whether the voter has complied with the voting 
            instructions.  If this bill were to become law, in a future 
            case with issues similar to those that arose during Donna 
            Frye's mayoral race, votes in which the voter wrote-in the 
            name of a qualified write-in candidate, but did not fill in 
            the oval, would be counted.

           3)Manual Recounts and Write-in Candidates  :  Existing law 
            provides three avenues for election recounts.  The elections 
            official who conducted the election or a court can order a 
            recount under certain specified situations.  In addition, any 








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            voter (including a candidate) may, within a specified 
            timeframe, request a recount of the votes cast for candidates, 
            slate of presidential electors, or for or against any measure, 
            but the voter filing the request must pay the costs of the 
            recount in advance.  If after the recount is completed and the 
            candidate, slate of presidential electors, or the position on 
            the measure for which the recount was conducted is deemed to 
            have prevailed, which it did not in the official canvass, the 
            voter who requested the recount is entitled to a refund of the 
            money paid to cover the costs of the recount.  When requesting 
            a recount, state law allows the requestor to determine whether 
            the recount is conducted manually, by means of the voting 
            system used originally, or both.

          The provisions of this bill would be applicable only if a voter 
            requested a manual recount in a race that had at least one 
            qualified write-in candidate.  In all other circumstances, the 
            law would remain unchanged, and write-in votes would be 
            counted only if the voter filled in the voting space next to 
            the write-in space.  The limited application of this bill to 
            circumstances where the voter requests a manual recount could 
            mean that certain write-in votes where the intent of the voter 
            is clear, but the voter failed to follow the voting 
            instructions, will go uncounted.  However, this limited 
            application may simplify implementation and, in many cases, 
            transfer any associated costs to the entity requesting the 
            recount.

           4)Liberal Construction of the Law  :  State law currently provides 
            that provisions of the law governing vote by mail ballots and 
            provisional ballots shall be liberally construed in favor of 
            the voter.  In addition, state law provides that provisions 
            governing the approval of voting systems be liberally 
            construed so that the will of the electors will not be 
            defeated by any informality or failure to comply with all of 
            the provisions of the law.  These laws were passed with the 
            intent to ensure that votes are not discarded due to a 
            technicality. 

           5)Fill-in the Bubble  : The requirement that a voter fill in the 
            voting space next to the write-in space in order for that vote 
            to be counted was adopted as an administrative convenience to 
            facilitate the machine tabulation of ballots.  Because 
            automated tabulating devices typically do not have the 
            capability of determining whether a voter has written anything 








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            in the write-in space, the requirement that the voting space 
            be filled in allowed the machine to identify those ballots 
            that may have a write-in candidate.  This bill would allow a 
            vote to be counted during a manual recount regardless of 
            whether a voter has complied with the voting instructions.

           6)Related Legislation  : AB 503 (Block), also being heard in this 
            committee today, requires an election official, upon the 
            request of a qualified write-in candidate, to hand tally the 
            votes for the write-in candidate if the elections official 
            makes a specified determination, and requires the elections 
            official to count each ballot if the intent of the voter can 
            be determined.

           7)Previous Legislation  :  SB 439 (Calderon) of 2007, which was 
            substantially similar to this bill, was vetoed by Governor 
            Schwarzenegger, who wrote in his veto message, "The bill does 
            not specify how the voter's intent could be determined.  If 
            enacted this bill would introduce subjectivity into the 
            electoral process without providing any direction or guidance 
            to the elections officials?Requiring that a voter fill in the 
            corresponding bubble for a write-in candidate is necessary for 
            the efficient administration of the vote count, and imposes a 
            very small burden on a voter." 

          AB 43 (Vargas) of 2005, which was substantially similar to this 
            bill, was approved by the Assembly, but was never heard in the 
            Senate Elections Committee.

          SB 1050 (Bowen) of 2005, would have required a hand tally of all 
            ballots at the request of a write-in candidate, if specified 
            conditions were met.  SB 1050 was vetoed by Governor 
            Schwarzenegger, who wrote in his veto message, "This process 
            will expand the number of manual hand recounts, which will 
            lead to an unnecessary delay in completing the canvass and 
            certifying election results.  It will require county elections 
            officials to review every mark on ballots even in situations 
            where it is virtually impossible for the candidate challenging 
            the vote to prevail."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Association of Clerks and Election Officials








                                                                  AB 461
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          Secretary of State Debra Bowen

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