BILL ANALYSIS                                                                                                                                                                                                    Ó






                         SENATE COMMITTEE ON ELECTIONS 
                         AND CONSTITUTIONAL AMENDMENTS
                           Senator Lou Correa, Chair


          BILL NO:   AB 461                             HEARING DATE: 
          6/7/11
          AUTHOR:    BONILLA                            ANALYSIS BY:  
             Darren Chesin
          AMENDED:   4/5/11 
          FISCAL:    NO
          
                                    SUBJECT
           
          Write-in Candidates 
           
                                  DESCRIPTION  
          
           Existing law  provides every voter the right to write in the 
          name of any candidate for any public office, as specified.

           Existing law  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.

           Existing law  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.

           Existing law  requires state law governing vote by mail and 
          provisional voting be liberally construed in favor of the 
          vote by mail voter.

           This bill  provides that in the event of a manual recount 
          the 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 vote can be 
          determined, regardless of whether the voter has complied 
          with the voting instructions.










                                    BACKGROUND  
          
           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.

           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 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.

                                     COMMENTS  
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            1. According to the author  , 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.
           
           2. 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 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.

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            3. 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. 

            4. Previous Legislation  :  SB 439 (Calderon) of 2007, 
             which was substantially similar to this bill, was vetoed 
             by the Governor.  The Governor's veto message stated, in 
             part:

           "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 also substantially 
             similar to this bill, was approved by the Assembly, but 
             was never heard in this 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 also 
             vetoed by Governor.  The Governor's veto message stated, 
             in part:

           "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."

            5. Related Legislation  .  AB 503 (Block), which is pending 
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             in the Assembly, permits 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.



                                   PRIOR ACTION
           
          Assembly Elections and Redistricting Committee:  5-2
          Assembly Floor:                         51-21
                                         
                                   POSITIONS  

          Sponsor: Author

           Support: California Association of Clerks and Election 
                   Officials
                    Secretary of State

           Oppose:  None received



















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