BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 503
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          Date of Hearing:   April 12, 2011

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                  Paul Fong, Chair
                     AB 503 (Block) - As Amended:  April 4, 2011
           
          SUBJECT  :   Processing write-in votes.

           SUMMARY  :   Requires an elections official, upon the request of a 
          qualified write-in candidate, to hand tally the votes for the 
          write-in candidate, as specified, and to count each ballot if 
          the intent of the voter can be determined.  Specifically,  this 
          bill  :  

          1)Requires an elections official, after tallying all eligible 
            votes but prior to completion of the official canvass and the 
            issuance of the certified statement of the results, to hand 
            tally undervotes if any of the following conditions apply:

             a)   In the case of a primary election or a special election, 
               the sum of the total number of votes cast for the write-in 
               candidate and the total number of undervotes cast for the 
               office but not examined pursuant to a hand tally is equal 
               to or greater than the total number of votes cast for the 
               candidate receiving the second highest number of voters for 
               that office.

             b)   In the case of a general election or special runoff 
               election, the sum of the total number of votes cast for the 
               write-in candidate and the total number of undervotes cast 
               for the office but not examined pursuant to a hand tally is 
               equal to or greater than the total number of votes cast for 
               the candidate receiving the highest number of votes for 
               that office.

             c)   In the case of an office for which a voter may vote for 
               more than one candidate, the sum of the total number of 
               votes cast for the write-in candidate and the total number 
               of undervotes cast for the office but not examined pursuant 
               to a hand tally is equal to or greater than the total 
               number of votes cast for the candidate receiving the least 
               number of votes that would be sufficient in order to be 
               elected.

          2)Permits the elections official to stop the hand tally when the 








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            official determines that the conditions set forth above are no 
            longer applicable, or when all of the undervotes for the 
            office have been examined. 

          3)Requires the elections official, while conducting the hand 
            tally, to count each vote for the office if the intent of the 
            voter can be determined, regardless of whether the voter has 
            complied with the voting instructions.  

          4)Requires the elections official to include the results of the 
            hand tally in the official canvass of the election.

          5)Provides that the requirement of the elections official to 
            hand tally undervotes only applies if a request is received 
            within five days of completion of the semi-official canvass 
            from a qualified write-in candidate for an office being voted 
            on in that election for an examination of undervotes.

          6)Provides that the requirement of the elections official to 
            hand tally undervotes only applies in an election that was 
            conducted using a voting system in which write-in spaces 
            appear directly below the list of candidates for that office 
            and provide a voting space.

          7)Defines "undervote," for the purposes of this bill, as a 
            ballot on which a voter failed to cast any vote for a specific 
            office or failed to cast the maximum number of votes 
            permitted, as detected by an electronic, mechanical, or other 
            vote-tabulating device.

          8)Provides that a qualified write-in candidate is not 
            responsible for the costs of a hand tally requested pursuant 
            to this bill.
             
           EXISTING LAW  provides:

          1)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)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.








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          3)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.

           FISCAL EFFECT  :  Unknown.  State-mandated local program; contains 
          reimbursement direction.

           COMMENTS  :   

           1)Purpose of the Bill  :  According to the author:

               AB 503 ensures that votes for qualified write-in candidates 
               will be counted in certain circumstances if the intent of 
               the voter can be determined, even if the voter did not mark 
               the bubble or similar voting space next to the write-in 
               space on the ballot.

               By law, voters are permitted to write in the name of a 
               candidate they wish to vote for if they do not want to vote 
               for a candidate listed on the ballot.  However, for voting 
               systems in which write-in spaces appear below a list of 
               candidates and include a bubble or similar voting space, 
               state law requires the voter to perform the additional step 
               of marking that bubble or voting space.  This bill ensures 
               that votes for qualified write-in candidates will be 
               counted in certain circumstances if the intent of the voter 
               can be determined, even if the voter did not mark the 
               bubble or voting space next to the write-in space on a 
               ballot.

               The provisions of this bill would only be in effect when 
               the number of ballots where no vote for a particular office 
               was recorded during the electronic tabulation process 
               combined with the tallied votes for the write-in candidate 
               could mathematically change the outcome of that election.  
               This measure will ensure that the intent of voters, who 
               write-in candidates, is carried out when their vote could 
               change the outcome of the election.

           2)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 








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            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 require the elections official, upon making a 
            specific finding and at the request of a qualified write-in 
            candidate, to hand tally the votes for the write-in candidate 
            for that office, and to count each vote for the office 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, a 
            qualified write-in candidate would have the right to a 
            hand-tally, prior to the issuance of the certified statement 
            of the results, and 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.  

           3)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.









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          The provisions of this bill would be applicable only if the 
            requestor was a qualified write-in candidate, the elections 
            official made a specified determination regarding the total 
            number of votes cast for the write-in candidate combined with 
            the total number of undervotes cast for that office, and if 
            the election was conducted using a specific voting system.  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.    

           4)Post-Election Deadlines  :  Under current law, an elections 
            official is required to prepare a certified statement of the 
            results of the election and submit it to the governing body 
            within 28 days of the election.  This bill requires an 
            elections official to hand tally undervotes prior to 
            completion of the official canvass and the issuance of the 
            certified statement of the results, if a request is received 
            within five days of completion of the semi-official canvass.  
            Given that an elections official cannot issue a certified 
            statement until complying with the provisions of this bill, it 
            may put pressure on elections officials to meet the deadlines 
            prescribed under current law.  However, this bill also allows 
            an official to stop the hand tally as soon as it is determined 
            that the hand tally will not affect the outcome of the 
            election, which will save the official time while making sure 
            that all votes cast for a write-in candidate are counted.

           5)Who Pays  ?  Current law allows any person to request a manual 
            recount after the results of an election have been certified.  
            The cost of the manual recount is the responsibility of the 
            requestor, unless the recount changes the outcome of the 
            election.  This bill provides that a qualified write-in 
            candidate is not responsible for the costs of the hand tally, 
            regardless of the outcome of the hand tally.  However, the 
            circumstances in which this bill would be applicable are 
            limited to situations where the number of undervotes is 
            significant enough to potentially change the outcome.  

           6)State 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 vote by mail 
            (VBM) voter and a requirement for counties to tabulate VBM 
            ballots by precinct.  In fact, all six elections-related 








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            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.

           7)Related Legislation  :  AB 461 (Bonilla), also being heard in 
            this committee today, requires a write-in vote to be counted, 
            in the event of a manual recount,  if the voter's intent can 
            be determined, regardless of whether the voter has complied 
            with the voting instructions.  

           8)Previous Legislation  :  SB 439 (Calderon) of 2007, would have 
            required, in the event of a manual recount, provisions of law 
            governing the counting of write-in votes to be liberally 
            construed to ensure that each ballot is counted if the intent 
            of the voter can be determined, regardless of whether the 
            voter had literally complied with the voting instructions.  SB 
            439 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." 

          AB 43 (Vargas) of 2005, which was substantially similar to SB 
            439, was approved by the Assembly, but was never heard in the 
            Senate Elections 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 vetoed by Governor 
            Schwarzenegger, who wrote in his veto message, "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."
             










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           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Secretary of State Debra Bowen (Sponsor)
          Californians Aware
          California Common Cause
          California National Organization for Women
          Environmental Health Coalition

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :    Maria Garcia / E. & R. / (916) 319-2094