BILL ANALYSIS Ó
SB 29
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Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 29 (Correa) - As Amended: June 10, 2013
SENATE VOTE : 27-10
SUBJECT : Vote by mail ballots and election result statements.
SUMMARY : Allows vote by mail (VBM) ballots to be counted if
they are cast by election day and received by the elections
official no later than three days after the election.
Specifically, this bill :
1)Provides that a VBM ballot is timely cast if it is received by
the voter's elections official no later than three days after
election day and either of the following is satisfied:
a) 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,
b) If the ballot has no postmark, a postmark with no date,
or an illegible postmark, the VBM ballot identification
envelope is signed and dated on or before election day.
2)Allows jurisdictions that have the necessary computer
capability to begin processing VBM ballots on the 10th
business day prior to the election, instead of the seventh
business day prior to the election.
3)Extends the deadline for elections officials to prepare a
certified statement of the results of an election from 28 days
after the election to 30 days after the election.
4)Allows counties to continue to use envelopes and other
official election materials that do not take into account the
provisions of this bill until the supply of those materials is
exhausted.
EXISTING LAW :
1)Provides that a VBM ballot must be received by the elections
official from whom it was obtained, or by a precinct board in
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that jurisdiction, no later than the close of polls on
election day in order for that ballot to be counted.
2)Requires a VBM ballot identification envelope to include
specified information, including the following:
a) A declaration, under penalty of perjury, stating that
the voter resides within the precinct in which he or she is
voting and is the person whose name appears on the
envelope;
b) The signature of the voter; and,
c) The date of signing.
3)Allows jurisdictions that have the necessary computer
capability to begin processing VBM ballots on the seventh
business day prior to the election. Provides that processing
VBM ballots, pursuant to these provisions, includes opening
VBM ballot return envelopes, removing ballots, duplicating any
damaged ballots, and preparing the ballots to be machine read,
or machine reading them. Provides that under no circumstances
may a vote count be accessed or released until 8 p.m. on the
day of the election.
4)Requires the elections official to prepare a certified
statement of the results of an election and to submit that
statement to the governing body within 28 days of the
election.
FISCAL EFFECT : According to the Senate Appropriations
Committee, county election officials will likely incur
additional costs to manually check the postmark on all ballots
that arrive after the close of the polls through the following
third day. An unofficial count indicates that more than 20,000
ballots arrived too late to be counted at the last statewide
general election. However, exact costs will be dependent on the
change in voter behavior - that is, how many vote by mail voters
who currently mail their ballots a week or more before the
election, will then wait until closer to election day once they
learn about the three day grace period. This could result in
tens of thousands of ballots arriving at the county offices
after election day and therefore necessitating a manual
inspection of the postmark, resulting in substantial overtime
costs for county election officials. Staff estimates that
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reimbursable state costs could be approximately $150,000 per
election.
COMMENTS :
1)Purpose of the Bill : According to the author:
SB 29 provides that any valid vote-by-mail ballot will
be accepted if it is postmarked on or before Election
Day and received by the elections official no later
than three days after Election Day. A date stamp from
a bona fide mail delivery service, such as FedEx will
also be accepted.
Late delivery of otherwise valid ballots has long been
a problem but will grow worse given the U.S. Postal
Service's plans to continue closing mail processing
centers.
According to estimates, as many as 26,000 mail ballots
arrived too late to be counted in California's
November 2010 election - and this was prior to the
USPS cutbacks?.
Numerous states grant additional time for the arrival
of regular vote-by-mail ballots or military and
overseas ballots.
Under this bill, if the ballot has no postmark, a
postmark with no date, or an illegible postmark, the
ballot will still be counted if it arrives by the new
deadline and the voter has signed under penalty of
perjury that it was voted and mailed on or before
Election Day.
2)Florida Law : The issue of counting VBM ballots received after
election day gained increased attention during the aftermath
of the 2000 Presidential Election in Florida. VBM ballots
cast in Florida that are received from overseas are counted if
received up to 10 days after the election, provided that the
ballot is signed and dated or postmarked on or prior to
election day. That provision of Florida law is the result of
a consent decree, entered into in 1982 due to concerns that
overseas voters did not have sufficient time between the
primary and general election (which were only a month apart)
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to receive, vote, and return their ballots.
3)Breaking New Ground : If this bill passes, it will represent
the first time that California state law explicitly has
allowed any ballot which was received after election day to be
counted. Florida's experience with counting ballots that
arrive after election day shows that adopting such a policy
can result in unequal treatment of votes. In a review of
overseas VBM ballots that were counted in Florida in 2000, the
New York Times found that hundreds of ballots that arrived
after election day and were postmarked after the election were
improperly counted.
4)United States Postal Service Facility Closures and Mail
Delays : Last year, this committee and the Senate Elections
and Constitutional Amendments 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 have 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.
To the extent that these closures and additional future closures
planned by the USPS result in mail delivery delays, voters who
mail their ballots within a reasonable timeframe could,
through no fault of their own, find themselves
disenfranchised.
5)2010 Primary Election Ballots in Riverside County : In
Riverside County, 12,563 VBM ballots were discovered at a
local post office the day after the June 8, 2010 statewide
primary election. These ballots were eventually accepted by
the county elections official, but only after a superior court
judge ruled that they should be counted. In this instance,
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the voters had mailed their ballots in time for normal
delivery but county elections officials, who previously and
routinely visited certain post offices to collect VBM ballots,
did not visit the post office that actually had these ballots.
While a plain reading of the applicable statute would have
resulted in these ballots being rejected, the presiding judge
ordered that the ballots be counted based on a provision of
the California Constitution which reads "A voter who casts a
vote in an election in accordance with the laws of this State
shall have that vote counted."
6)VBM Ballot Deadlines in Other States : Each state has its own
deadlines for the return of mail ballots. In some states, the
deadline varies depending on whether the individual submitting
the ballot is a civilian living in the United States (US), or
a military or overseas voter covered under the Uniformed and
Overseas Citizens Absentee Voting Act (UOCAVA).
According to information from the National Association of
Secretaries of State, three states require mail ballots from
civilians living in the US to be returned prior to election
day in order to be counted, while 36 states (including
California) require such ballots to be received by election
day. Eleven states and the District of Columbia allow mail
ballots from civilians living in the US to arrive after
election day and still be counted as long as the ballot is
postmarked (or in some cases, signed and dated) by election
day.
For active duty military and overseas citizens who are covered
under UOCAVA, one state requires mail ballots to be returned
prior to election day in order to be counted, and 32 states
(including California) require ballots to be received by
election day. Seventeen states and the District of Columbia
allow mail ballots from at least some voters who are covered
under UOCAVA to arrive after election day and still be
counted. Most of those states require the ballot to be
postmarked (or in some cases, signed and dated) by election
day.
7)State Mandates : The last three state budgets have suspended
various state mandates as a mechanism for cost savings. Among
the mandates that were suspended were all six existing
elections-related mandates. Additionally, the 2013-2014 state
budget that was approved by the Legislature earlier this month
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suspended three additional newly identified elections-related
mandates. This bill adds another mandate on local elections
officials. However, this bill also includes provisions
designed to help offset some of the costs associated with that
mandate by giving elections officials additional flexibility
when conducting elections. Specifically, this bill allows
elections officials to begin processing returned VBM ballots
three business days earlier than is allowed under existing
law, and gives elections officials two additional days to
complete the official canvass of election results.
8)Suggested Technical Amendment : In order to correct a drafting
error, and to ensure that the provisions of this bill apply to
ballots cast by all voters, committee staff recommends a
technical amendment to add the following language to this
bill:
Section 3117 of the Elections Code is amended to read:
3117. A valid ballot cast shall be counted if it is received by
the elections official by the time the polls close on the day
of the election in accordance with Section 3020 .
9)Secretary of State's Proposed Amendments : Secretary of State
Debra Bowen and the League of Women Voters of California both
have a "support if amended" position on this bill, and both
entities request amendments to eliminate the provisions of
this bill that would extend the timeline for county elections
officials to complete the official canvass of election
results. In support of this proposed amendment, Secretary of
State Bowen writes:
Extending the deadline for elections officials to
report their results to their governing body will make
it difficult for the Secretary of State to comply with
state and federal deadlines for publishing the
statement of the vote and certifying election results.
Currently, elections officials have to submit
election results to their governing body 28 days after
the election and must submit their certified results
to the Secretary of State's office no more than 3 days
later, 31 days after the election.
Unfortunately, many county elections [officials] are
unable to comply with the existing requirement to
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submit certified elections results to the Secretary of
State's office by 31 days after the election. That
already makes it difficult for the Secretary of
State's office to comply with its statutory mandate to
certify the statewide results 38 days after the
election. Giving county elections officials more time
to do their work is likely to lead to more counties
missing the 31-day deadline to report their certified
results to my office, which in turn would impact my
ability to meet state and federal deadlines.
10)Related Legislation : AB 269 (Grove), which is pending in the
Senate Elections and Constitutional Amendments Committee,
allows the VBM ballot of a military or overseas voter to
arrive up to three days after the election and still be
counted, provided that the ballot is postmarked by the United
States Postal Service or the Military Postal Service Agency on
or before election day. AB 269 was approved by this committee
on a 7-0 vote and by the Assembly on a 78-0 vote.
AB 813 (Melendez), which is pending in the Senate Appropriations
Committee, would require elections officials to post election
results on the Internet in a downloadable spreadsheet format,
as specified. Both AB 813 and this bill propose to amend
Section 15372 of the Elections Code, and thus, these two bills
are in conflict. This conflict should be resolved through
amendments to one or both of these bills prior to final
passage by the Legislature.
11)Previous Legislation : SB 348 (Correa) of 2011, would have
allowed VBM ballots to be counted if they were postmarked by
election day and received by the elections official no later
than six days after the election. SB 348 was approved by the
Senate Elections and Constitutional Amendments Committee, but
subsequently was held on the Senate Appropriations Committee's
suspense file.
AB 562 (Fong) of 2012, was similar to this bill. AB 562 was
approved by the Senate on a 28-9 vote, but failed passage on
the Assembly Floor for concurrence in Senate amendments on a
47-29 vote (AB 562 contained an urgency clause, and thus
required 54 votes for passage on the Assembly Floor).
REGISTERED SUPPORT / OPPOSITION :
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Support Opposition
Asian Law Caucus None on file.
Asian Pacific American Legal Center
California Association of Clerks and Election Officials
California Common Cause
California Forward Action Fund
California Teachers Association
CALPIRG
League of Women Voters of California (if amended)
Rural County Representatives of California
Secretary of State Debra Bowen (if amended)
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094