BILL ANALYSIS Ó SENATE COMMITTEE ON ELECTIONS AND CONSTITUTIONAL AMENDMENTS Senator Alex Padilla, Chair BILL NO: AB 1873 HEARING DATE: 6/24/14 AUTHOR: GONZALEZ ANALYSIS BY: Darren Chesin AMENDED: 5/28/14 FISCAL: NO SUBJECT Mail ballot elections DESCRIPTION Existing law permits an election to be conducted wholly by mail if the governing body authorizes the use of mailed ballots for the election, the election occurs on an established mailed ballot election date, and the election is one of the following: a.An election in which no more than 1,000 registered voters are eligible to participate; b.An election in a city, county, or district with 5,000 or fewer registered voters that is restricted to the imposition of special taxes, expenditure limitation overrides, or both; c.An election on the issuance of a general obligation water bond; d.An election in one of four specifically enumerated water districts; or, e.An election or assessment ballot proceeding required or authorized by the state constitution under Proposition 218. Existing law authorizes a school district or city with a population of 100,000 or less to conduct an all-mail ballot election to fill a vacancy in a special election. Existing law authorizes a district to conduct any election as an all-mailed ballot election on any date other than an established election date. Existing law provides that whenever there are 250 or fewer people registered to vote in any precinct, the elections official may deem the precinct as an all-mail ballot precinct, and provides that no precinct may be divided solely in order to create an all-mail precinct. Existing law provides that once a legislative or congressional vacancy occurs, the Governor has 14 days to issue a proclamation declaring the date of the special election. Requires the special run-off election to occur between 126 and 140 days after the date of the proclamation with the special primary election occurring the ninth Tuesday preceding the special run-off, except as specified. Permits the special runoff election to be held up to 180 days after the date of the Governor's proclamation if it will allow either the special runoff or special primary to coincide with an existing state or local election involving at least half the voters in the affected jurisdiction. Existing law permits Yolo County, as part of a pilot program lasting through January 1, 2018, to conduct elections on up to three dates as all-mailed ballot elections, subject to certain conditions and reporting requirements. Existing law provides that a vote by mail (VBM) ballot must be received by the elections official from whom it was obtained, or by a precinct board in that jurisdiction, no later than the close of polls on Election Day in order for that ballot to be counted. This bill permits a special election held to fill a vacancy in the Legislature or in Congress to be conducted entirely by mailed ballot subject to all of the following conditions: a.The board of supervisors of each affected county authorizes the use of mailed ballots. b.The election does not occur on the same date as a statewide primary or general election, or any other election conducted in an overlapping jurisdiction that is not consolidated and conducted wholly by mail. c.At least one ballot drop-off location is provided per city, and at least one drop-off location is provided in unincorporated areas for every 100,000 registered voters, and AB 1873 (GONZALEZ) Page 2 such locations are open during business hours to receive voted ballots beginning not less than seven days before the election. d.The elections official provides for at least six hours of voting at a satellite location within the congressional or legislative district on at least one Saturday and Sunday after the ballots are delivered to voters. e.At least one polling place is provided per city or the polling places are fixed in a manner so that there is one polling place for every 10,000 registered voters within the district, as specified, whichever results in more polling places. Provides that a polling place shall allow voters to request a ballot between 7 a.m. and 8 p.m. on the day of the election if they need replacement ballots for any reason. f.Polling places are established in accordance with existing state and federal accessibility requirements, and are evenly distributed throughout the congressional or legislative district. g.Each voter receives all supplies necessary for the use and return of the mail ballot, including a return envelope for the voted ballot with postage prepaid. h.Each voter receives all of the following from the elections official: A notice indicating that the election is being conducted wholly by mail and that each eligible voter will received a ballot by mail; A list of the ballot drop-off and polling place locations, and that list is posted on the Internet Web site of the county elections office; and, A statement informing voters that the voting materials, including the official ballot and the facsimile ballot, are available in all languages required by state and federal law. This bill provides that a ballot for these elections is timely cast if it is received by the voter's elections official no AB 1873 (GONZALEZ) Page 3 later than three days after election day and either of the following is satisfied: The ballot is postmarked or is time stamped or date stamped by a bona fide private mail delivery company on or before election day; or, If the ballot has no postmark, a postmark with no date, or an illegible postmark, the ballot identification envelope is signed and dated on or before Election Day. This bill permits jurisdictions that have the necessary computer capability to begin processing vote by mail (VBM) ballots on the 10th business day prior to the election, instead of the seventh business day prior to the election. This bill contains a January 1, 2020 sunset date. BACKGROUND A Little All-Mail History . Several California counties have conducted all-mail ballot elections. Monterey conducted one of the first vote-by-mail elections ever held in the United States in 1977 on a flood control measure. Alpine County conducted its first all-mail election in November, 1993 for a countywide special election. San Diego used all-mail balloting in May 1981 for a measure proposing to build a $224 million convention center. Stanislaus County conducted its first all-mail ballot election in 1987 for the Modesto City Charter. In 1992, the Legislature approved a pilot project in Stanislaus and Placer counties. The counties were allowed to conduct all-mail ballot elections. Placer County did not utilize this pilot project but Stanislaus County conducted the 1993 Statewide Special Election as an all-mail ballot election. All-mail ballot elections conducted in California as well as other states have generally shown increases in voter turnout and significant decreases in the cost of conducting elections. During Stanislaus County's all-mail ballot pilot project, the County saved almost half of its usual election expenditures. Stanislaus County generally reported turnout levels at six to eight percentage points below the state's average. During the 1993 Statewide Special Election, the County's turnout was 6.8 AB 1873 (GONZALEZ) Page 4 percent higher than the statewide average during that election. It should be noted however, that with few exceptions, prior all-mail elections have been limited to local elections only. Oregon has been conducting all-mail ballot elections for non-partisan and ballot measure elections for 20 years. In 1998 the voters passed an initiative expanding vote-by-mail to primary and general elections. The state of Washington has also recently adopted statewide all-mail ballot elections. Yolo County Pilot Project : In 2011, the Legislature approved and the Governor signed AB 413 (Yamada), Ch. 187, Statutes of 2011, which created a pilot program allowing Yolo County to conduct local elections on not more than three dates as all-mailed ballot elections. AB 413 was intended to serve as a pilot project to evaluate the desirability of further expanding the circumstances under which elections are permitted to be conducted as all-mailed ballot elections. Yolo County conducted all-mailed ballot elections last March in the City of Davis and the Washington Unified School District as permitted by AB 413, and submitted its report on those elections last December. The pilot project in Yolo County was authorized following a prior pilot project in Monterey County that failed to provide useful information about the impacts of all-mailed ballot elections because the report filed by Monterey County as part of the pilot project lacked much of the information that was necessary to evaluate the impacts of the pilot project. The report prepared in connection with the first two elections conducted in Yolo County under the pilot project found that turnout at the all-mailed ballot elections conducted as part of the pilot project was not significantly different than similar polling place elections held in the two jurisdictions in prior years. The study also found that turnout rates broken down by age, ethnic background, party preference, and permanent VBM status was consistent and similar between the polling place and the all-mailed ballot elections. The study found that data provided on the cost to conduct all-mailed ballot elections was inconclusive in determining whether there are significant savings to moving to all-mailed ballot elections. However, the study also cautioned that Davis-one of the jurisdictions in which the pilot was conducted-"is a relatively affluent, homogenous community with a higher level of educational achievement than most other areas of the state" and so the AB 1873 (GONZALEZ) Page 5 results "are not necessarily applicable to other, dissimilar communities." The report also noted that the effects of all-mailed ballot elections on turnout would not necessarily be similar in general elections. Yolo County is permitted to conduct local elections as all-mailed ballot elections on two additional dates before the conclusion of the pilot project. Vote by Mail and Permanent Vote by Mail Voting : Under state law, any voter can request a VBM ballot for any election, and any voter can become a permanent VBM voter. Permanent VBM voters automatically receive a ballot in the mail for every election, without the need to re-apply for a VBM ballot. As such, any voter who prefers to vote by mail has the ability to do so under existing law. Among the arguments that supporters of all-mailed ballot elections frequently make in support of such elections is that all-mailed ballot elections are more convenient for voters. However, it is not clear whether this is the case. Any voter who finds it more convenient to vote by mail has the option to do so under existing law, and voters who want to vote by mail at every election can sign up for permanent VBM status. Some voters, due to physical disability or language issues, may prefer to vote at the polls in order to take advantage of access or help provided by electronic voting machines or bilingual poll workers. COMMENTS 1.According to the Author : Assembly Bill 1873, known as the Voting Ought To be Easy (VOTE) Act for Special Elections, seeks to improve two major shortcomings with special elections in California - the widespread non-participation by voters in these low-profile electoral contests and the costliness of operating a special election on taxpayers. Together, the apparent inefficiency of the special election status quo has invited well-meaning but risky alternatives that undermine the public's right to an election and our State government's system of checks and balances. AB 1873 allows county and local governments the opportunity to avoid the low participation and high costs involved in special AB 1873 (GONZALEZ) Page 6 elections by conducting these special elections predominantly by mail ballot, a process which has been shown in practice and academic studies to majorly reduce costs and increase access to democracy. In exchange, the county or local government opting in to the predominantly mail special election process agrees to several measures that further expands voter access. These conditions include providing postage-paid envelopes for return ballots and honoring any ballot received with a postmark by Election Day, similar to tax forms postmarked by April 15 are still "on time." They also include making available a limited number of in-person voting locations for early weekend voting as well as voting on Election Day, ensuring access for those with disabilities or limited English proficiency, and developing and conducting plans for voter outreach and education about electoral participation in these elections. Our democracy flourishes when more eligible voters participate and AB 1873 helps move our state in that direction for special elections. Special elections in California notoriously have abysmal voter turnout levels, sometimes dropping below 10% of registered voters. For instance, in recent special elections to fill Assembly seats, AD 52 saw a turnout of only 8.61%, and AD 54 saw a turnout of only 8.47%. This can be attributed to special elections often covering fewer issues than regularly scheduled elections, and generally being less competitive than statewide general elections, thus generating less media coverage and voter attention. Special elections are also typically held on days which voters may be unable to take off of work or are less publicized. Severely low turnout in special elections undercuts our principles of democracy and participation, as elections are decided by a small amount of voters. Furthermore, these special elections are extremely costly for jurisdictions to hold. A state Assembly special election can cost over a million dollars to conduct, with only a small handful of people showing up at each polling place to vote. In many special elections, the vast majority of voters already utilize mail ballots through permanent absentee registration. With AB 1873, all registered voters in a county or city opting AB 1873 (GONZALEZ) Page 7 to use mail balloting for a special election would receive a ballot in the mail. Voters would be able to cast their ballot by mail in those 29 days preceding the special election date, at an early voting location on a weekend day before the election, or on Election Day at a polling place. 2.Jumping the Gun ? The committee may wish to consider whether it is desirable to expand the circumstances under which elections can be conducted entirely by mail prior to the completion of the Yolo County pilot project (see discussion in the Background section above) that the Legislature authorized in an effort to get better information about the impacts of such elections. 3.Special Vacancy Elections : In order to promptly fill vacancies in the Legislature and in Congress, special elections to fill such vacancies typically are conducted in a shortened time period, and elections officials have less time to prepare than they do for regularly scheduled elections. Furthermore, because vacancies in the Legislature or in Congress can occur due to the death of an officeholder or an unexpected resignation, special vacancy elections often cannot be anticipated in advance, so elections officials may not be able to prepare in advance for these elections. While certain elections may be conducted as all-mailed ballot elections under existing law, most elections -- particularly for the Legislature and Congress -- are still conducted as traditional elections, where voters have the ability to vote at a polling place on election day. As a result, many voters who are accustomed to voting at a polling place may expect that there will be a neighborhood polling place at which they will be able to vote in a special election for the Legislature or Congress. If such polling places are not going to be provided, voter education and outreach efforts may be necessary to ensure that voters who traditionally would vote at a polling place are not negatively affected by this change in election procedure. Given the unpredictable need and expedited time frame for special elections, however, the ability of elections officials to do effective voter education and outreach may be limited. The committee may wish to consider whether it is desirable to allow the use of a balloting method-all-mailed ballot AB 1873 (GONZALEZ) Page 8 elections-with which many voters are not familiar for special vacancy elections, given that the abbreviated schedule for such elections limits the ability to do education and outreach. 4.United States Postal Service Facility Closures and Mail Delays : In 2012, this committee and the Assembly Elections and Committee held a joint oversight hearing to discuss United States Postal Service (USPS) facility closures and the impact on voters and upcoming elections. During the hearing, state and county elections officials testified about the impact that recent post office and processing facility closures had on their jurisdictions and on local elections, as well as the anticipated challenges with more closures expected. According to testimony from elections officials, one of the most significant impacts those closures had on the election process is that there had been significant delays in mail delivery in some circumstances. Elections officials from counties that were previously served by closed facilities indicated that some first class mail took five to seven days to arrive after closures of USPS facilities, compared to the usual delivery time of one to three days. Since that hearing, the USPS has announced further plans for changes in mail delivery procedures that also have the potential to delay mail delivery. Finally, the USPS and Congress have discussed proposals to end Saturday mail delivery as a way to cut costs. The committee may wish to consider whether it is appropriate to permit all-mail ballot elections to be used in a broader range of circumstances when closures and operational changes by the USPS may result in further mail delivery delays, and otherwise make mail delivery less reliable. 5.Arguments in Opposition : Asian Americans Advancing Justice-Los Angeles (Advancing Justice-LA), which has an oppose unless amended position, writes, in part: Advancing Justice-LA supports both legislative and grassroots efforts to make it easier for voters to vote by mail (VBM). We are aware that across the state, the proportion of voters signing up for permanent VBM status has trended upward over the past decade. However, we believe it is premature for the AB 1873 (GONZALEZ) Page 9 state to authorize jurisdictions to make VBM the primary balloting option for voters in the absence of information explaining why California ranks poorly relative to other states with respect to VBM rejection rates and VBM return rates... Additionally, although the overall proportion of VBM voters in the state has increased over time, available data highlight sizable age, racial and ethnic, and other disparities between VBM voters and polling place voters, as well as significant variations by region. For example, a report by the California Civic Engagement Project at the UC Davis Center for Regional Change found that in the 2012 general election, the proportion of youth voters (defined as ages 18-23) who voted by mail was 25 percentage points lower than the proportion of voters 64 years or older who voted by mail. Among racial and ethnic lines, the report found that statewide, the rate of VBM usage among Latino voters was 14 percentage points lower than the rate for all voters as a whole, and that this gap was larger in regions such as Southern California (encompassing Los Angeles, Orange, Riverside, San Bernardino, and Ventura Counties). The report found that the rate of VBM usage among Asian American voters was above that of the general population; however, from voter research that Advancing Justice-LA has conducted, we know that the rate of VBM usage varies by Asian American ethnic group. For example, among Los Angeles County voters during the 2008 general election, Asian Indian (22%), Cambodian (27%), and Filipino American (26%) voters used the VBM balloting process at rates near or below the countywide average (24%). Advancing Justice-LA's belief is that policymakers should first consider the potential challenges and disparities in VBM usage noted above before enacting legislation that permits jurisdictions to make VBM balloting the primary option for voters, whether in regularly scheduled elections or special vacancy elections? Even accepting the notion that all-mail ballot elections may create increased turnout, we believe that the unintended consequences of making VBM the primary option for diverse electorates will impede the achievement of increased turnout unless adequate mitigation measures are taken. These AB 1873 (GONZALEZ) Page 10 unintended consequences pertain to accessibility and education and include the following: Reduction in availability of language assistance available at polling places under federal law, and availability of in-person assistance in general? Reduction in availability of language assistance available at polling places under state law? Large amount of voter education required to switch to all-mail system? 1.Related Legislation : AB 2028 (Mullin), which is also being heard in this committee today, would authorize San Mateo County to participate in the ongoing all-mailed ballot pilot project that is being conducted in Yolo County, as described above. SCA 16 (Steinberg), which is pending in the Senate Appropriations Committee, would permit the Governor to fill a legislative vacancy by appointment, as specified. AB 2273 (Ridley-Thomas), which is pending in the Assembly Appropriations Committee, would require the state to reimburse counties for the costs of special elections held to fill vacancies in Congress and the Legislature, for all elections held on or after January 1, 2013. AB 2273 was approved by this committee on a 7-0 vote. SB 942 (Vidak) would require the state to reimburse counties for the costs of special elections held to fill vacancies in Congress and the Legislature, for all elections held between January 1, 2008 and December 31, 2014. SB 963 (Torres) is identical to AB 2273. Both bills are pending in the Senate Appropriations Committee. 2.Previous Legislation : SB 109 (Gaines) of 2011 would have would authorized a county with a population of 400,000 or less to conduct a special election called by the Governor to be conducted wholly as an all-mail ballot election, as specified. SB 109 failed passage in this committee. SB 304 (Kehoe) of 2011 would have authorized elections in San AB 1873 (GONZALEZ) Page 11 Diego County to be conducted wholly by mail until January 1, 2016, if specified conditions were satisfied. SB 304 was never heard in committee. SB 1102 (Liu) of 2010 would have permitted a special primary or run-off election to fill a legislative or congressional vacancy to be conducted wholly by mail provided that the board of supervisors of each county within the affected jurisdiction authorized the all-mail ballot election. SB 1102 was never brought up for vote on the Senate Floor. AB 1681 (Yamada) of 2010 was similar to AB 413. AB 1681 was vetoed by Governor Schwarzenegger, who expressed concern that "with limited options to vote in-person citizens-especially poor, elderly, and disabled voters-would not have sufficient opportunity to vote." AB 1228 (Yamada) of 2009 was similar to AB 1681, except that AB 1228 would have allowed both Yolo and Santa Clara Counties to participate in the all-mail ballot pilot project. AB 1228 was vetoed by Governor Schwarzenegger for the same reasons stated in his veto message of AB 1681 above. PRIOR ACTION Assembly Elections and Redistricting Committee: 4-2 Assembly Floor: 44-32 POSITIONS Sponsor: County of San Diego Support: California State Association of Counties California State Association of Letter Carriers County of San Bernardino Rural County Representatives of California San Mateo County Board of Supervisors Sonoma County Board of Supervisors Urban Counties Caucus Oppose: American Civil Liberties Union of California Asian Americans Advancing Justice-Los Angeles Disability Rights California Lawyers Committee for Civil Rights of the San AB 1873 (GONZALEZ) Page 12 Francisco Bay Area Mexican American Legal Defense and Educational Fund AB 1873 (GONZALEZ) Page 13