BILL ANALYSIS Ó
AB 503
Page 1
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official determines that the conditions set forth above are no
longer applicable, or when all of the undervotes for the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