BILL ANALYSIS Ó
AB 461
Page 1
ASSEMBLY THIRD READING
AB 461 (Bonilla)
As Amended April 5, 2011
Majority vote
ELECTIONS 5-2
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|Ayes:|Fong, Bonilla, Hall, | | |
| |Mendoza, Swanson | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Logue, Valadao | | |
| | | | |
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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.
AB 461
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FISCAL EFFECT : This bill is keyed non-fiscal by the Legislative
Counsel.
COMMENTS : According to the author, "AB 461 helps protect
against voter disenfranchisement. 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?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."
In the November 2004 General Election, Donna Frye was a
qualified write-in candidate for mayor in the City of San Diego.
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 (Registrar) 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 vote 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.
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
AB 461
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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.
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."
Analysis Prepared by : Maria Garcia / E. & R. / (916) 319-2094
FN: 0000266