BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: AB 503 HEARING DATE: 6/21/11
AUTHOR: BLOCK ANALYSIS BY:Frances Tibon
Estoista
AMENDED: 5/27/11
FISCAL: NO
SUBJECT
Processing write-in votes
DESCRIPTION
Existing law provides every voter the right to write the
name of any candidate for any public office on the ballot
of any election.
Existing law provides, 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 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.
This bill permits the elections official to stop the hand
tally when the official determines that the conditions set
forth above are no longer applicable, or when all of the
undervotes for the office have been examined.
This bill 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.
This bill requires the elections official to include the
results of the hand tally in the official canvass of the
election.
This bill 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.
After tallying all eligible votes but prior to completion
of the official canvass and the issuance of the certified
statement of the results, this bill provides that the
elections official may hand tally the remaining undervotes,
if a request for examination of undervotes 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 if any of the following is
applicable:
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
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the candidate receiving the least number of votes
that would be sufficient in order to be elected.
This bill 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.
This bill provides that a qualified write-in candidate is
not responsible for the costs of a hand tally requested
pursuant to this bill.
This bill does not prohibit a request for a recount.
BACKGROUND
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.
COMMENTS
1.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.
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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 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 allow 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
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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.
3.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.
4.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.
5.Related and Prior Legislation : AB 461 (Bonilla) would
provide that during a recount, a valid- write-in vote
will be counted whether or not the voter filled in the
corresponding "bubble". AB 461 was recently passed by
this Committee.
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
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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 stated in relevant 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."
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 stated 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."
6.AB 43 (Vargas) of 2005, which was substantially similar
to SB 439, was approved by the Assembly, but was never
heard in this Committee.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 5-2
Assembly Appropriations Committee: 12-5
Assembly Floor: 53-23
POSITIONS
Sponsor: Secretary of State
Support: California Aware
California Common Cause
California National Organization for Women
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Environmental Health Coalition
League of Women Voters of California
Oppose: California Association of Clerks and Election
Officials
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