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 AB 461 (BONILLA) Page 2 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. AB 461 (BONILLA) Page 3 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 AB 461 (BONILLA) Page 4 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 AB 461 (BONILLA) Page 5