BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 461|
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THIRD READING
Bill No: AB 461
Author: Bonilla (D)
Amended: 4/5/11 in Assembly
Vote: 21
SENATE ELECTIONS & CONST. AMEND. COMMITTEE : 3-2, 6/8/11
AYES: Correa, De León, Lieu
NOES: La Malfa, Gaines
ASSEMBLY FLOOR : 51-21, 5/5/11 - See last page for vote
SUBJECT : Write-in candidates
SOURCE : Author
DIGEST : This bill 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.
ANALYSIS :
Existing law:
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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.
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
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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 provides 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 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.
Previous Legislation
SB 439 (Calderon), Session of 2007-08, which was
substantially similar to this bill, was vetoed by Governor
Schwarzenegger. His 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), Session of 2005-06, which was also
substantially similar to this bill, was approved by the
Assembly, but was never heard in the Senate Elections and
Constitutional Amendments Committee.
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SB 1050 (Bowen), Session of 2005-06, 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 Schwarzenegger. His 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."
Related Legislation
AB 503 (Block), which is pending 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/8/11)
California Association of Clerks and Election Officials
Secretary of State
ASSEMBLY FLOOR : 51-21, 5/5/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Butler, Charles
Calderon, Campos, Carter, Cedillo, Chesbro, Davis,
Dickinson, Eng, Feuer, Fletcher, Fong, Fuentes, Galgiani,
Gordon, Hall, Hayashi, Roger Hernández, Hill, Huber,
Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza,
Mitchell, Monning, Norby, Pan, Perea, V. Manuel Pérez,
Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada, John A. Pérez
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NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Gatto, Grove, Hagman, Halderman, Jeffries, Knight, Logue,
Mansoor, Miller, Morrell, Nestande, Olsen, Silva, Smyth,
Valadao, Wagner
NO VOTE RECORDED: Buchanan, Furutani, Garrick, Gorell,
Harkey, Jones, Nielsen, Vacancy
DLW:kc 6/8/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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