BILL ANALYSIS                                                                                                                                                                                                    






                         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          forth above are no longer applicable, or when all of the 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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