Amended in Senate August 31, 2015

Amended in Senate June 24, 2015

Amended in Assembly April 27, 2015

Amended in Assembly April 8, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 44

Introduced by Assembly Member Mullin

(Coauthors: Assembly Members Bonta and Gonzalez )

(Coauthor: Senator Anderson)

December 1, 2014

An act to amend Sections begin delete 15370, end delete 15601, 15620, 15621, 15626, 15627, and 15632, of, to add Sections 15621.5 and 19204.5 to, and to add begin delete and repeal end delete Article 5 (commencing with Section 15645) to Chapter 9 of Division 15 of, the Elections Code, relating to elections.

LEGISLATIVE COUNSEL’S DIGEST

AB 44, as amended, Mullin. Elections: statewide recounts.

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(1) Existing law prohibits a county elections official from opening a ballot after it is counted and sealed, except in certain circumstances, including a recount.

end delete begin delete

This bill would require a county elections official to store sealed ballots in a manner facilitating the retrieval of any particular ballot in that event.

end delete begin delete

(2)

end delete

begin insert (1) end insert  Existing law requires the Secretary of State to adopt regulations relating to the use of voting systems in recounting ballots.

This bill would also require the Secretary of State to revise and adopt regulations relating to procedures for recounting ballots, including regulations establishing guidelines for the charges a county elections official may impose when conducting a manual recount.

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(3)

end delete

begin insert (2) end insert  Existing law establishes procedures by which a voter may request a recount of the votes cast in an election following completion of the official canvass. Existing law requires a voter to make this request within 5 days beginning on the 29th day after the election.

This bill would instead permit a voter to file a request for a recount within 5 days beginning on the 30th day after the election.

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(4)

end delete

begin insert (3) end insert  Any time during the conduct of a recount and for 24 hours thereafter, existing law permits any other voter to request a recount of any precincts in an election for the same office, slate of presidential electors, or measure not recounted as a result of the original request. Existing law also provides that, where applicable, a voter requesting a recount may select whether the recount shall be conducted manually, or by means of the voting system used originally, or both.

This bill would instead require a voter to select, for each type of voting system used, whether the recount is to be conducted manually, or by means of the voting system used originally, but not both. This bill would also specify that if more than one voter requests a recount of the same begin delete office, slate of presidential electors, end delete begin insert office end insert or measure, and at least one request is for a manual recount, then the county elections official of any county subject to multiple requests is only obligated to conduct one manual recount of the ballots subject to the request, and that those results will control.

begin delete

(5)

end delete

begin insert (4) end insert  Under existing law, begin delete the end delete begin insert a end insert voter seeking a recount is required, before the recount is commenced and at the beginning of each subsequent day, to deposit with the elections official the amount of money required by the elections official to cover the cost of the recount for that day.

This bill would permit begin delete a voter to request end delete begin insert the Governor or Secretary of State, as specified, to order end insert a state-funded manual recount of all votes cast for a statewide begin delete office, the office of President of the United States, end delete begin insert office end insert or a state ballot measure if the difference in the number of votes received is less than or equal to the lesser of 1,000 votes or 0.00015 of the number of all votes cast begin insert , end insert as specified. This bill would also require a county elections official to review rejected ballots as part of a state-funded recount. begin delete This bill would repeal the provisions relating to state-funded recounts as of January 1, 2023. end delete

begin delete

(6)

end delete

begin insert (5) end insert  Under existing law, upon completion of a recount showing that a different candidate was nominated or elected, that a different presidential slate of electors received a plurality of the votes, or that a measure was defeated instead of approved or approved instead of defeated, the result of the recount in each affected precinct is entered and is thereafter considered the official return of the affected precincts. Existing law provides that if an office, slates of presidential electors, or measure is voted on statewide, the results of any recount are null and void unless each vote cast for the office, slates, or measure in any county specified in the request for recount is recounted.

This bill would instead provide that if an office, slates of presidential electors, or measure is voted on statewide, the results of any recount are null and void unless each vote cast statewide for the office, slates, or measure is recounted.

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(7)

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begin insert (6) end insert  Existing law requires the Secretary of State to certify or conditionally approve a voting system prior to any election at which it is to be used, as specified. Existing law prohibits the Secretary of State from certifying or conditionally approving a voting system or part of a voting system that does not have certain technical capabilities.

This bill would also prohibit the Secretary of State from certifying or conditionally approving a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit; however, it would expressly permit the Secretary of State to approve a proposed change or modification to a noncompliant voting system even if the voting system would be unable to facilitate the conduct of a ballot level comparison risk-limiting audit after the change or modification.

By imposing new duties on local elections officials, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

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SECTION 1.  

Section 15370 of the Elections Code is amended
to read:

15370.  

(a) After ballots are counted and sealed, the elections
official may not open any ballots nor permit any ballots to be
opened except as permitted in Sections 15303 and 15304, or in the
event of a recount.

(b) The county elections official shall store sealed ballots in a
manner facilitating the retrieval of any particular ballot in the event
of a recount.

end delete

begin delete SEC. 2. end delete
begin insert SECTION 1. end insert   

Section 15601 of the Elections Code is amended
to read:

15601.  

(a) The Secretary of State, within the Secretary of
State’s existing budget, shall adopt regulations no later than January
1, 2008, for each voting system approved for use in the state and
specify the procedures for recounting ballots, including vote by
mail and provisional ballots, using those voting systems.

(b) No later than January 1, 2018, the Secretary of State shall
revise and adopt regulations specifying procedures for recounting
ballots, including regulations establishing guidelines for charges
a county elections official may impose when conducting a manual
recount pursuant to this chapter.

begin delete SEC. 3. end delete
begin insert SEC. 2. end insert   

Section 15620 of the Elections Code is amended to
read:

15620.  

(a) Following completion of the official canvass and
again following completion of any postcanvass risk-limiting audit
conducted pursuant to Section 15560, any voter may, within five
days thereafter, file with the elections official responsible for
conducting an election in the county wherein the recount is sought
a written request for a recount of the votes cast for candidates for
any office, for slates of presidential electors, or for or against any
measure, provided the office, slate, or measure is not voted on
statewide. The request shall specify on behalf of which candidate,
slate of electors, or position on a measure (affirmative or negative)
it is filed.

(b) If an election is conducted in more than one county, the
request for the recount may be filed by any voter within five days,
beginning on the 31st day after the election, with the elections
official of, and the recount may be conducted within, any or all of
the affected counties.

(c) For the purposes of this section, “completion of the canvass”
shall be presumed to be that time when the elections official signs
the certified statement of the results of the election except that, in
the case of a city election, if a city council canvasses the returns
itself and does not order the elections official to conduct the
canvass, “completion of the canvass” shall be presumed to be that
time when the governing body declares the persons elected or the
measures approved or defeated.

begin delete SEC. 4. end delete
begin insert SEC. 3. end insert   

Section 15621 of the Elections Code is amended to
read:

15621.  

(a) Following completion of the official canvass any
voter may, within five days beginning on the 31st day after a
statewide election, file with the Secretary of State a written request
for a recount of the votes cast for candidates for any statewide
office or for or against any measure voted on statewide.
Additionally, any voter may file with the Secretary of State a
written request for a recount of the votes cast for candidates for
any statewide office or for or against any measure voted on
statewide within five days following completion of any postcanvass
risk-limiting audit conducted pursuant to Section 15560. A request
filed pursuant to this section shall specify in which county or
counties the recount is sought and shall specify on behalf of which
candidate, slate of electors, or position on a measure (affirmative
or negative) it is filed.

(b) The Secretary of State shall forthwith send by registered
mail one copy of the request to the elections official of each county
in which a recount of the votes is sought.

(c) All the other provisions of this article shall apply to recounts
conducted under this section.

begin delete SEC. 5. end delete
begin insert SEC. 4. end insert   

Section 15621.5 is added to the Elections Code, to
read:

15621.5.  

If more than one voter requests a recount of the same
begin delete office, slate of presidential electors, end delete begin insert office end insert or measure pursuant to
Section 15620 or 15621, and at least one request is for a manual
recount, the county elections official of a county subject to multiple
requests as described in this section shall conduct only one manual
recount of the ballots subject to recount, the result of which shall
be controlling.

begin delete SEC. 6. end delete
begin insert SEC. 5. end insert   

Section 15626 of the Elections Code is amended to
read:

15626.  

The recount shall be commenced not more than seven
days following the receipt by the elections official of the request
or order for the recount under Section 15620, 15621, or 15645 and
shall be continued daily, Saturdays, Sundays, and holidays
excepted, for not less than six hours each day until completed. The
recount shall not be commenced until the first day following
notification of the individuals specified in Section 15628.

begin delete SEC. 7. end delete
begin insert SEC. 6. end insert   

Section 15627 of the Elections Code is amended to
read:

15627.  

(a) If the votes subject to recount were cast or tabulated
by a voting system, the voter requesting the recount shall, for each
set of ballots cast or tabulated by a type of voting system, select
whether the recount shall be conducted manually, or by means of
the voting system used originally. Only one method of recount
may be used for all ballots cast or tabulated by the same type of
voting system.

(b) For purposes of direct recording electronic voting systems,
“conducted manually” means that the voter verified paper audit
trail of the electronically recorded vote is counted manually, as
selected by the voter who requests the recount.

begin delete SEC. 8. end delete
begin insert SEC. 7. end insert   

Section 15632 of the Elections Code is amended to
read:

15632.  

In lieu of the returns as reported in the official canvass,
upon completion of the recount showing that a different candidate
was nominated or elected, that a different presidential slate of
electors received a plurality of the votes, or that a measure was
defeated instead of approved or approved instead of defeated, there
shall be entered the result of the recount in each precinct affected,
which result shall, for all purposes thereafter, be the official returns
of those precincts for the office, slates of presidential electors, or
measure involved in the recount. If the office, slates of presidential
electors, or measure are not voted on statewide, the results of any
recount which is not completed by counting the votes in each and
every precinct in the jurisdiction within which votes were cast on
the candidates for the office, on the slates of electors, or on the
measure in question shall be declared null and void. If the office,
slates of presidential electors, or measure are voted on statewide,
the results of any recount will be declared null and void where
there is not recounted each vote cast statewide for the office, slates,
or measure.

begin delete SEC. 9. end delete
begin insert SEC. 8. end insert   

Article 5 (commencing with Section 15645) is added
to Chapter 9 of Division 15 of the Elections Code, to read:

 

Article 5.  State-Funded Recounts

 

15645.  

(a) (1) Within five days after the Secretary of State
files a statement of the vote, as required by subdivision (b) of
Section 15501, begin delete any voter end delete begin insert the Governor end insert may begin delete request end delete begin insert order end insert a
state-funded manual recount of all votes cast for a statewide office
or state ballot measure if any of the following occurs begin insert , except as
provided in paragraph (3) end insert :

(A) The official canvass of returns in a statewide primary
election shows that the difference in the number of votes received
by the second and third place candidates for a statewide office is
less than or equal to the lesser of 1,000 votes or 0.00015 of the
number of all votes cast for that office except as provided in
paragraph (2).

(B) The official canvass of returns in a statewide general election
shows that the difference in the number of votes received by the
two candidates receiving the greatest number of votes for a
statewide office is less than or equal to the lesser of 1,000 votes
or 0.00015 of the number of all votes cast for that office.

(C) The official canvass of returns in a statewide election shows
that the difference in the number of votes cast for and against a
state ballot measure is less than or equal to the lesser of 1,000 votes
or 0.00015 of the number of all votes cast on the measure.

(2)  begin delete A voter end delete begin insert The Governor end insert shall not begin delete request end delete begin insert order end insert a state-funded
manual recount of all votes cast for the office of Superintendent
of Public Instruction pursuant to this section unless the official
canvass of returns in a statewide primary election shows begin delete that end delete begin insert either
of the following: end insert begin delete the end delete

begin insert (A) end insert begin insert   end insert begin insert The end insert number of votes received by the candidate receiving
the greatest number of votes was either of the following:

(i) Between begin delete 0.49085 end delete begin insert 0.49985 end insert and 0.50015, inclusive, of the
number of all votes cast.

(ii) Within begin delete 1000 end delete begin insert 1,000 end insert votes of 50 percent of the number of all
votes cast.

begin insert

(B) No candidate for the office of Superintendent of Public
Instruction received votes on a majority of all the ballots cast for
candidates for that office and the difference in the number of votes
received by the second and third place candidates for that office
was less than or equal to the lesser of 1,000 votes or 0.00015 of
the number of all votes cast for that office.

end insert

(3)  begin insert If the conditions set forth in paragraph (1) are satisfied with
respect to the number of votes cast for the office of Governor, the
Secretary of State, but not the Governor, may order a state-funded
manual recount pursuant to this section. end insert

begin insert (4) end insert begin insert   end insert For purposes of this subdivision, “statewide office” means
the office of Governor, Lieutenant Governor, Attorney General,
Controller, Insurance Commissioner, Secretary of State,
Superintendent of Public Instruction, Treasurer, or Member of the
United States Senate.

begin delete

(b) Within five days after the Secretary of State files a statement
of the vote, as required by subdivision (b) of Section 15501, any
voter may request a state-funded manual recount of all votes cast
for the office of President of the United States if the official canvass
of returns in a statewide general election shows that the difference
in the number of votes received by the two candidates receiving
the greatest number of votes for the office of President is less than
or equal to the lesser of 1,000 votes or 0.00015 of the number of
all votes cast for the office of President.

(c) 

end delete

begin insert (b) end insert begin insert   end insert If a state-funded recount is conducted pursuant to this
section, no other recount shall be conducted.

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(d) 

end delete

begin insert (c) end insert begin insert   end insert The State shall reimburse counties for costs resulting from
conducting a manual recount pursuant to this section in an
expeditious manner upon certification of those costs.

15646.  

(a) Upon begin insert the Governor or Secretary of State end insert ordering
a recount pursuant to subdivision (a) begin delete or (b) end delete of Section 15645, the
Secretary of State shall notify the elections official of each county
and shall direct the county elections officials to recount all the
votes cast for the office or for and against the state ballot measure.

(b) (1) While conducting a recount pursuant to Section 15645,
a county elections official shall also review ballots rejected
pursuant to Section 15154 to ensure that no ballots were improperly
discarded during the initial canvass.

(2) The process of reviewing rejected ballots pursuant to
subdivision (a) shall be open to members of the public, including
persons associated with a campaign or measure.

(c)  The elections official in each county shall complete a
recount pursuant to this section as follows:

(1) In a primary election, by three business days before the
Secretary of State issues the certified list of candidates for the
associated general election pursuant to Section 8120.

(2) In a general election, within 60 days of the begin delete voter’s request
for a end delete begin insert Governor or Secretary of State ordering the end insert recount.

15647.  

All the provisions of Article 3 (commencing with
Section 15620), except Sections 15620, 15621, 15622, 15623,
15624, and 15627, shall apply to this article unless otherwise
provided herein.

15648.  

The Secretary of State may adopt, amend, and repeal
rules and regulations necessary for the administration of this article.

15649.  

begin delete This article shall remain in effect only until January 1,
2023, and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2023, deletes or extends that
date. end delete begin insert A county elections official shall only be required to conduct
a recount pursuant to this article to the extent funds are
appropriated for purposes of this article in the annual Budget Act
or other statute. end insert

begin delete SEC. 10. end delete
begin insert SEC. 9. end insert   

Section 19204.5 is added to the Elections Code, to
read:

19204.5.  

(a) The Secretary of State shall not certify or
conditionally approve a voting system that cannot facilitate the
conduct of a ballot level comparison risk-limiting audit.

(b) (1) For purposes of this subdivision, a voting system that
is “noncompliant” is a voting system that cannot facilitate the
conduct of a ballot level comparison risk-limiting audit.

(2) Notwithstanding subdivision (a), the Secretary of State may,
until January 1, 2021, approve a proposed change or modification
to a noncompliant voting system even if the voting system will
remain noncompliant after the change or modification. This
paragraph shall become inoperative on January 1, 2021.

begin delete SEC. 11. end delete
begin insert SEC. 10. end insert   

If the Commission on State Mandates determines
that this act contains costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.