BILL ANALYSIS �
AB 477
Page 1
Date of Hearing: March 29, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 477 (Valadao) - As Amended: March 14, 2011
SUBJECT : Elections: vote by mail ballots.
SUMMARY : Allows a ballot from a special absentee voter, as
defined, who is temporarily living outside the United States, to
arrive up to 14 days after the election and still be counted,
provided that the ballot is postmarked by the United States
Postal Service or the Military Postal Service Agency on or
before election day.
EXISTING LAW :
1)Defines a "special absentee voter" as an elector who is any of
the following:
a) A member of the armed forces of the United States or any
auxiliary branch thereof;
b) A citizen of the United States temporarily living
outside of the territorial limits of the United States or
the District of Columbia;
c) Serving on a merchant vessel documented under the laws
of the United States; or,
d) A spouse or dependent of a member of the armed forces or
any auxiliary branch thereof.
2)Requires all vote by mail (VBM) ballots to be received by the
elections official from whom they were obtained or by the
precinct board no later than the close of polls on election
day in order to be counted.
3)Provides that an application for a VBM ballot by a special
absentee voter or by an overseas voter shall be deemed an
affidavit of registration and an application for permanent VBM
voter status. Provides that such an application shall be
accepted only if it contains the voter's name, residence
address for voting purposes, the address to which the ballot
is to be sent, the voter's political party for a primary
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election and the voter's signature.
4)Requires the county elections official to mail a ballot to all
special absentee voters and overseas voters who are permanent
VBM voters as soon as possible on or after the 60th day prior
to an election.
5)Permits a special absentee voter to register to vote and apply
for a VBM ballot by facsimile transmission. Allows an
elections official to send a VBM ballot by mail, facsimile, or
electronic transmission.
6)Allows a special absentee voter who is temporarily living
outside of the United States to return his or her ballot by
facsimile transmission.
7)Allows a special absentee voter who is unable to appear at his
or her polling place because of being recalled to service
after the final day for applying for a VBM ballot to appear
before the elections official in the county in which the voter
is registered to apply for a VBM ballot.
FISCAL EFFECT : Unknown. State-mandated local program; contains
reimbursement direction.
COMMENTS :
1)Purpose of the Bill : According to the author:
According to the Pew Center on the States Overseas Military
Voters report, U.S. citizens living overseas face special
challenges in exercising their right to vote. Those working
abroad, studying abroad, and military personnel are often
disenfranchised by slow mail delivery. The report
underscores that their ability to cast a ballot and have it
counted depends on their home state. California requires
all vote by mail ballots to be received by close of polls
on Election Day, yet 18 states and the District of Columbia
allow such ballots to be counted if they are received
between 3-21 days after Election Day, as long as they are
postmarked on or before the date of the election.
Among military personnel who reported not voting in 2004,
30 percent said they were not able to vote because their
ballots never arrived or arrived too late (Pew Center on
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the States).
AB 477 would allow all parties residing abroad the much
needed extra time to ensure their vote is counted.
2)Florida Law : The issue of counting VBM ballots received after
election day gained increased attention during the aftermath
of the 2000 Presidential Election in Florida. VBM ballots
cast in Florida that are received from overseas are counted if
received up to 10 days after the election, provided that the
ballot is signed and dated or postmarked on or prior to
election day. That provision of Florida law is the result of
a consent decree, entered into in 1982 due to concerns that
overseas voters did not have sufficient time between the
primary and general election (which were only a month apart)
to receive, vote, and return their ballots.
3)Breaking New Ground : If this bill passes, it will represent
the first time that California state law explicitly has
allowed any ballot which was received after election day to be
counted. Florida's experience with counting ballots that
arrive after election day shows that adopting such a policy
can result in unequal treatment of votes. In a review of
overseas VBM ballots that were counted in Florida in 2000, the
New York Times found that hundreds of ballots that arrived
after election day and were postmarked after the election were
improperly counted.
The Committee should determine whether it wishes to break this
new policy ground, particularly given the potential for
problems similar to those experienced in Florida.
4)Elections Mandates : The 2011-2012 State Budget that was
approved by the Legislature on March 17, 2011, suspends most
existing state-mandated local programs as a mechanism for cost
savings. Among the mandates that were suspended were a
requirement for counties to allow any voter to become a
permanent VBM voter and a requirement for counties to tabulate
VBM ballots by precinct. In fact, all six existing
elections-related mandates were suspended in the 2011-2012
budget bill. The Committee may wish to consider whether it is
desirable to establish new election mandates on counties when
the Legislature has voted to suspend the existing election
mandates.
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5)Illegible and Missing Postmarks : It is not uncommon for a
postmark to be smudged or otherwise illegible. Occasionally,
mail does not receive a postmark at all. Under existing law,
this is not a problem for VBM ballots cast in California
elections, as all VBM ballots are required to be received by
the close of polls on election day. Under this bill, however,
an illegible or missing postmark could result in a voter's
ballot being discarded. Voters may be given a false sense of
security that their ballots will be counted as long as they
are mailed by election day, only to have some ballots
disqualified due to the lack of a legible postmark.
6)Delayed Canvass and Potential Amendments : Under existing law,
by the close of polls on election day, county elections
officials have received all the materials necessary to
complete the official canvass of ballots. This bill would
require county elections officials to begin the official
canvass of ballots before they have received all the ballots
that will be included in the final official canvass. While
many smaller counties have no difficulty completing the
official canvass of ballots in the 28 day deadline, larger
counties frequently take the full amount of time available to
certify election results. Especially since larger counties
would likely receive the largest number of ballots after
election day, this bill could hinder the ability of a number
of counties to certify election results by the 28th day after
an election, as required by law.
Even in elections with relatively low turnout, allowing ballots
to arrive up to 14 days after the election and still be
counted could create problems for elections officials. When
elections officials finish processing all the ballots in their
possession and complete all the other tasks required as part
of the official canvass of an election, the election commonly
is certified at that point, even though the deadline for
certifying an election may be days away. In the case of
special elections held to fill vacancies in the Legislature or
Congress, for instance, it is not uncommon for an election to
be certified just a few days after the election took place.
Under the provisions of this bill, however, the elections
official would have to wait until at least the 14th day after
an election before completing the official canvass and
certifying election results. This could delay the filling of
vacancies and, in the case of primary elections, could delay
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the preparation and printing of ballots for a subsequent
general or runoff election. To the extent that this bill
delays the completion of the official canvass at a primary
election, this bill could actually make it less likely that an
overseas voter will have adequate time to vote and return a
ballot for the general or runoff election, because the delay
of finalizing the official canvass while awaiting the
potential arrival of overseas ballots could delay the
production and mailing of ballots for the general or runoff
election.
In order to prevent against unnecessary delays in the completion
of the official canvass of election results, the author and
the committee may wish to consider amending this bill to
require ballots to be received not later than 10 days after
the election in order to be counted, instead of 14 days after
the election. This amendment would ensure that elections
officials have all of the ballots necessary to complete the
official canvass by the end of the week following the
election.
7)Alternative Voting Methods : In March 2002, San Francisco
voters approved an initiative requiring the city to use
Instant Runoff Voting (IRV) for city elections. San Francisco
voters first used IRV in an election in November 2004. Under
IRV, voters rank candidates for each office, and the voters'
first choices are tallied. If no candidate receives a
majority of first choices, the candidate who was ranked first
on the fewest number of ballots is eliminated, and the vote
from each voter who had ranked that candidate first is
transferred to the next ranked candidate on that voter's
ballot. This process is repeated until one candidate receives
a majority of votes. In addition to San Francisco, voters in
Berkeley, Oakland, and San Leandro used IRV for municipal
elections for the first time last year.
This bill could complicate efforts for local governments to
adopt such alternative voting methods. Because IRV requires
all ballots to be tabulated in a first round before votes can
be reallocated to other candidates, it appears that
jurisdictions utilizing IRV must receive all ballots before
they can begin the final tabulation of election results.
Jurisdictions using IRV could have their election results
delayed by days or even weeks as the election official waits
for the receipt of additional VBM ballots that contain a
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postmark on or before election day.
8)Concerns Expressed : Although it has not taken an official
position on this bill, the California Association of Clerks
and Election Officials has expressed numerous concerns with
this bill. In its letter to the author, the Association
writes the following:
Election officials throughout California recognize the
problem of late receipt of vote by mail ballots, and
particularly those of uniformed and overseas voters. As of
yet, we have not identified a solution that did not create
a host of other problems. We are continuing to explore
possibilities and are gathering statistics on the number of
ballots received after Election Day, and on the number of
days after an election when the majority of such ballots do
arrive, in hopes of identifying the number of days
following the election when it might be appropriate to
receive such to be included in the tally of the votes.
Some of the issues identified in the discussion of your
bill include the following:
As all special absentee ballots are mailed in
the same type of envelope, there is currently no way
to segregate the ballots of special absentee voters
temporarily residing outside the United States from
the ballots of all other special absentee voters; . .
.
Election officials in large counties or those
with high percentages of vote by mail ballots are
barely meeting the statutory deadline for completion
of the canvass. Any increase in the number of days in
which vote by mail ballots could be received would
also require an extension of the official canvass by
an equivalent number of days;
Small counties often complete the canvass
prior to 14 days following the election. Would these
counties be required to delay the canvass in case a
ballot from a special absentee voter temporarily
residing outside the United States was received?
What criteria were used to establish the
number of days following the election during which
time such a ballot could be received, and what is the
significance of this period of time?
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1)Facilitating Voting by Overseas Voters : Over the last decade,
the Legislature has made a number of changes to state law to
facilitate voting by military voters and other California
residents who are outside of the United States. AB 188
(Maze), Chapter 347, Statutes of 2003, streamlined a number of
provisions of state law to make it easier for overseas voters
to receive their ballots and cast a vote. Among other
provisions, AB 188 did the following:
Specified that an application for a VBM ballot by an
overseas voter was deemed to be a request for voter
registration (if the voter was not already registered to
vote) and an application for permanent VBM voter status.
While California law previously allowed an application for
a VBM ballot made by federal post card application to serve
as an affidavit for registration, such an application would
register the voter for that election only. AB 188 allowed
any VBM ballot request received from an overseas voter to
be considered a request for voter registration, and the
voter's registration was permanent.
Made all overseas voters permanent VBM voters, thereby
eliminating the need for overseas military voters and other
overseas voters to request a VBM ballot for each separate
election.
Required that all overseas voters be mailed a VBM ballot
60 days before the election, to ensure that the voter has
sufficient time to receive, complete, and return his or her
ballot. Also repealed a requirement that these overseas
voters make certain written declarations in order to be
eligible to receive their VBM ballot 60 days before the
election.
Allowed the elections official to send an overseas voter
his or her ballot by electronic transmission.
In 2004, the Legislature approved and the Governor signed AB
2941 (Bates), Chapter 821, Statutes of 2004, which permits
special absentee voters who are temporarily living outside the
United States to return their ballots by facsimile
transmission. AB 2941 was modeled after the procedures
adopted by the Secretary of State (SOS) for the 2003 recall
election, when the SOS had first ordered ballots returned from
overseas voters by fax to be counted. AB 2941 was intended to
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accommodate voters who, due to potential delays in
international mail delivery and structural barriers present in
combat areas, may not be able to receive, vote, and return a
ballot in the 60-day period provided for overseas voters. In
2008, the Legislature approved and the Governor signed AB 2786
(Salas), Chapter 252, Statutes of 2008, which extended the
sunset date on the provisions of AB 2941, and last year, the
Legislature approved and the Governor signed AB 2369 (Block),
Chapter 261, Statutes of 2010, which made the provisions of AB
2941 permanent.
1)Related Legislation : AB 896 (Portantino), which is pending in
this committee, would allow VBM ballots to be counted if the
ballot envelope is postmarked by election day, regardless of
when the ballot was received by the elections official.
SB 348 (Correa), which is pending in the Senate Elections &
Constitutional Amendments Committee, would allow VBM ballots
to be counted if the ballot envelope is postmarked by election
day and received by the elections official no later than six
days after election day.
2)Previous Legislation : AB 1340 (B. Lowenthal) of 2009, would
have allowed a special absentee voter to have his or her
ballot counted if it was postmarked on or before election day
and received by the county election official on or before the
sixth day after the election. AB 1340 was held on the Senate
Appropriations Committee's suspense file.
AB 1367 (Fletcher) of 2009, would have allowed a special
absentee voter who was temporarily residing outside the United
States to have his or her ballot counted if it was postmarked
or signed and dated by the voter on or before election day and
received by the county election official not more than 21 days
after the election. AB 1367 failed passage in the Assembly
Appropriations Committee. SB 582 (Dutton) of 2009, which was
similar to AB 1367, failed passage in the Senate Elections,
Reapportionment and Constitutional Amendments Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Legion - Department of California
California Association of Veterans Service Officers
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California State Commanders Veterans Council
Vietnam Veterans of America - California State Council
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094