BILL ANALYSIS Ó
AB 44
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Date of Hearing: April 15, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 44
(Mullin) - As Amended April 8, 2015
SUBJECT: Elections: statewide recounts.
SUMMARY: Creates a new state-funded recount process, as
specified. Specifically, this bill:
1)Permits any voter, within five days after the Secretary of
State (SOS) files a statement of the vote, to request a
state-funded manual recount of all votes cast for a statewide
office or state ballot measure if any of the following occurs:
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 one
thousand votes or one-and-a-half of one percent of the
number of all votes cast for that office;
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 one thousand votes or one-and-a-half
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of one percent of the number of all votes cast for that
office; or,
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 one thousand votes or one-and-a-half of one
percent of the number of all votes cast on the measure.
2)Prohibits a voter from requesting a state-funded manual
recount of all votes cast for the office of Superintendent of
Public Instruction if the official canvass of returns in a
statewide primary election shows that a candidate received a
majority of all votes cast.
3)Defines "statewide office," for the purposes of this bill, to
mean the office of Governor, Lieutenant Governor, Attorney
General, Controller, Insurance Commissioner, SOS,
Superintendent of Public Instruction, Treasurer, or Member of
the United State Senate.
4)Permits any voter, within five days after the SOS files a
statement of the vote, to request a state-funded manual
recount of all votes cast for the office President of the
United States if either of the following occurs:
a) The official canvass of returns in a statewide
presidential primary election for a political party that
received the greatest or second-greatest number of votes in
that presidential primary election shows that the
difference in the number of votes received by the first and
second place candidates for the nomination of that party
for the office of President is less than or equal to the
lesser of one thousand votes or one-and-a-half of one
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percent of the number of all votes cast for the office of
President, or;
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 the office of President is less than or
equal to the lesser of one thousand votes or one-and-a-half
of one percent of the number of all votes cast for the
office of President.
5)Prohibits another recount from being conducted if a
state-funded recount is conducted pursuant to the provisions
of this bill.
6)Requires the state to reimburse counties for costs resulting
from conducting a manual recount, pursuant to this bill, in an
expeditious manner upon the certification of those costs.
7)Requires the SOS, upon ordering a recount pursuant to the
provisions of this bill, to notify the elections official of
each county and direct the county elections official to
recount all the votes cast for the office or for and against
the state ballot measure.
8)Requires a county elections official, while conducting a
recount pursuant to the provisions of this bill, to also
review ballots rejected in accordance with existing law to
ensure that no ballots were improperly discarded during the
initial canvass. Requires the process for reviewing rejected
ballots to be open to members of the public, including persons
associated with a campaign or measure.
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9)Requires the elections official in each county to complete a
state-funded recount as follows:
a) In a primary election, by three business days before the
ballot-printing deadline for the general election; or,
b) In a general election, within 60 days of the voter's
request for the recount.
10)Permits the SOS to adopt, amend, and repeal rules and
regulations necessary for the administration of the provisions
of this bill.
11)Requires the elections official to store sealed ballots in a
manner facilitating the retrieval of any particular ballot in
the event of a recount.
12)Requires the SOS, no later than January 1, 2018, to adopt
regulations establishing uniform guidelines for charges a
county elections official may impose when conducting a manual
recount.
13)Changes the starting day on which a recount may be requested
for a recount that is conducted in more than one county from
the 29th day after the election to the 30th day after the
election.
14)Requires a county elections official, if more than one voter
requests a recount for the same office, slate of presidential
electors, or measure, and at least one request is for a manual
recount, to conduct only one manual recount of the ballots
subject to recount, the result of which shall be controlling.
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15)Repeals provisions of law that permitted a voter who files a
declaration requesting a recount to select whether the recount
is conducted manually, or by means of the voting system used
originally, or both and instead requires a voter who files a
declaration requesting a recount to only select whether the
recount is conducted manually, or by means of the voting
system used originally. Permits a county to recount vote by
mail (VBM) and provisional ballots in a manner other than that
requested by the voter.
16)Provides that if an office, slate of presidential electors,
or measure are voted on statewide, the results of any recount
will be declared null and void if each vote cast statewide
for the office, slates, or measure is not recounted.
17)Contains a January 1, 2023 sunset date for the state-funded
manual recount provisions of this bill.
18)Prohibits the SOS from certifying or conditionally approving
a voting system that cannot facilitate the conduct of a ballot
level comparison risk-limiting audit.
19)Makes other technical and corresponding changes.
EXISTING LAW:
1)Allows any voter, within five days following the completion of
the official canvass and following the completion of any
postcanvass risk-limiting audit conducted pursuant to existing
law, to request in writing that the elections official
responsible for conducting an election commence a recount of
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the votes cast for candidates for any office or for or against
any measure, provided the office or measure is not voted on
statewide. Allows a recount for an election that is conducted
in more than one county to be conducted in any or all of the
affected counties.
2)Allows any voter, following the completion of the official
canvass and within five days beginning on the 29th day after a
statewide election, to file with the SOS 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.
Allows any voter, within five days following the completion of
any postcanvass risk-limiting audit conducted pursuant to
existing law, to file with the SOS 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.
Requires a request filed to specify in which county or
counties the recount is sought and specify on behalf of which
candidate, slate of electors, or position on a measure it is
filed. Permits a request to specify the order in which the
precincts shall be recounted.
3)Permits any other voter, at any time during the conduct of a
recount and for 24 hours thereafter, to request the 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.
4)Requires a voter seeking the recount, 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.
5)Requires the recount to commence not more than seven days
following the receipt by the elections official of the request
for the recount and to continue daily, Saturdays, Sundays, and
holidays excepted, for not less than six hours each day until
completed.
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6)Provides that if in the election which is to be recounted the
votes were recorded by means of a punchcard voting system or
by electronic or electromechanical vote tabulating devices,
the voter who files the declaration requesting the recount may
select whether the recount shall be conducted manually, or by
means of the voting system used originally, or both.
7)Requires the recount to be conducted publicly.
8)Permits all ballots, whether voted or not, and any other
relevant material, to be examined as part of any recount if
the voter filing the declaration requesting the recount so
requests.
9)Required the SOS, within the SOS's existing budget, to adopt
regulations no later than January 2008, for each voting system
approved for use in the state and specify the procedures for
recounting ballots, including VBM and provisional ballots,
using those voting systems.
FISCAL EFFECT: Unknown. State-mandated local program: contains
reimbursement direction.
COMMENTS:
1)Purposed of the Bill: According to the author:
In the June 2014 primary, former Assembly Speaker John
Perez trailed Board of Equalization Member Betty Yee by
only 481 votes out of roughly four million. This very
narrow margin prompted him to request a recount, which
current law permits. When he did so, deep flaws in
California's existing recount process were revealed: it
allows statewide results to be overturned by a partial
recount and it favors candidates who can afford to pay.
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Current law allows candidates to specify the counties they
want to recount, and if they make up the vote difference in
those counties, the entire outcome of the election changes.
In response, their opponent can take a turn in selecting
counties in an effort to recover the lost votes. This
inefficient back and forth could continue until every vote
is counted or until a candidate runs out of money. It
raises the question of fairness: Should the person with the
deepest pockets be able to "out-recount" his opponent?
The obvious answer is "no." In statewide elections, where
millions of ballots are cast, the state should be
responsible for ensuring the accuracy of the vote, not a
candidate or voter. Above all, our system of governance
demands that the election process is fair and transparent
for all voters and candidates.
AB 44 creates a more equitable elections process by
authorizing a state-funded option for recounts, available
at or below a threshold of 1,000 votes or 0.015 percent,
whichever is smaller. When this option is utilized, the
state will fund a full hand recount of all ballots cast,
while also re-examining any rejected ballots. When the
state-funded threshold is not met, the bill permits
candidates to fund their own statewide recounts,
reimbursing them if the original results are overturned.
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Ensuring accurate election outcomes should be a priority
for the state, and by creating a state-funded option for
very close contests, AB 44 accomplishes this important
goal.
2)New Recount Process for Statewide Offices: Existing law
permits any registered voter to request a recount within five
days following the completion of the official canvass. The
voter requesting the recount must specify on behalf of which
candidate, slate of electors, or position on a measure it is
filed. Additionally, at any time during the conduct of a
recount and for 24 hours thereafter, current law allows any
voter other than the original requestor to request a recount
of additional precincts. The voter filing the request for the
recount is required to deposit, before the recount commences
and at the beginning of each day following, sums as required
by the elections official to cover the cost of the recount for
that day. If upon completion of the recount, the results are
reversed, the deposit shall be returned.
This bill creates a new recount method for statewide offices.
It sets up a new process for a state-funded manual recount for
statewide offices and measures. Specifically, this measure
permits any voter, within five days after the SOS files a
statement of the vote, to request a state-funded manual
recount of all votes cast for a statewide office or state
ballot measure in a statewide primary or general election if
there is a difference in the number of votes received that is
less than or equal to the lesser of one thousand votes or
one-and-a-half of one percent of the number of all votes cast
for that office or measure. For instance, in a general
election, if the vote threshold between the two candidates
receiving the greatest number of votes for a statewide office
is less than or equal to the lesser of one thousand votes or
one-and-a-half of one percent of the number of all votes cast
for that office, then it would trigger a manual recount that
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the state would pay for. This bill sets up similar
state-funded manual recount triggers for candidates in a
statewide presidential primary or general election. This is a
groundbreaking new policy for California.
3)Other New Recount Procedures for State-Funded Manual Recounts:
This bill makes a variety of new policy changes to the
conduct of a recount that applies to a state-funded manual
recount. First, this bill prohibits another recount from
being conducted for the same contest if a state-funded manual
recount is being conducted pursuant to the provisions of this
bill. This means that if a state-funded manual recount is
triggered and a voter requests for the recount to occur, this
bill would prohibit another voter from requesting a
simultaneous recount. This is a departure from current law,
which permits another voter, at any time during the conduct of
a recount and for 24 hours thereafter, 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.
Second, this bill sets up deadlines for when a state-funded
manual recount is required to be finished. For example, in a
primary election, this bill requires the recount to be
completed by three business days before the ballot-printing
deadline. And for a general election, this bill requires the
recount to be completed within 60 days of the voter's request
for the recount. Currently, there are no hard deadlines in
place for when a recount needs to be completed. This has been
problematic for past recounts, especially when there is a
recount requested for a primary election. If a recount
occurring after the primary is not completed in a timely
manner, it may make it difficult for county elections
officials to comply with the statutory deadlines for the
printing and mailing of voter materials for the general
election.
Third, current law permits all ballots, whether voted or not,
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and any other relevant material, to be examined as part of any
recount if the voter filing the declaration requesting the
recount so requests. This bill, instead, requires a county
elections official, while conducting a state-funded manual
recount, to also review the ballots rejected in accordance
with existing law to ensure that no ballots were improperly
discarded during the initial canvass.
4)Changes to the Current Recount Process: This bill not only
creates a state-funded manual recount process it also makes
changes to the current recount process. For instance, this
bill repeals provisions of law that permit a voter who files a
declaration requesting a recount to select whether the recount
is conducted manually, or by the voting system used
originally, or both, and instead requires a voter requesting a
recount to only select whether the recount is conducted
manually, or by the voting system used originally. In other
words, this bill requires a recount to be conducted in one
manner throughout each jurisdiction, with the exception of VBM
and provisional ballots. This bill permits a county, if the
county has different processes for VBM or provisional ballots,
to allow those ballots to be recounted in a manner other than
that requested by the voter. According to the author's
office, this change will ensure all ballots are treated the
same, while providing flexibility for counties that use
different machines or methodologies for counting VBM and
provisional ballots.
In addition, this bill makes changes to how recount costs are
calculated. While the SOS has adopted regulations that
specify procedures for recounting ballots, including VBM and
provisional ballots, current regulations do not provide
detailed guidance for the charges a county elections official
may impose when conducting a recount. The regulations require
an elections official to estimate the costs necessary to
produce relevant material and require the requestor to pay an
advance deposit of the estimated amount at least one day prior
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to the materials being produced. Regulations define "relevant
materials" to include, but not be limited to, unvoted ballots,
VBM and provisional ballot envelopes, voting system redundant
vote data, ballot definition files, language translation files
and the central database or other electronic repository of
results for the election in which the contest subject to
recount occurred, election data media devices, audit logs,
system logs, pre-and post-election logic and accuracy testing
plans and results, polling place event logs, precinct tally
results, central count tally results and consolidated results
in a structured non-proprietary format, surveillance video
recordings and chain of custody logs, including logs of
security seals and access to election-related storage areas.
In addition to the relevant materials produced, actual recount
costs may also include additional supervision hours, security
guard hours, the elections official's staff hours, space
rental, transportation of ballots, and materials and
administrative costs.
While there is no standardized pricing for a recount, not all
recounts are the same. As mentioned above the requestor has
the ability to request a recount to be conducted manually, by
the voting system used, or both. In addition, a recount may
or may not include the examination of all ballots, including
those ballots that were rejected. All of these variables and
others also contribute to the cost of a recount. A quick
search done by committee staff found that in Los Angeles
County the cost of one recount board is $5,054.71 per day, in
Orange County the fee for a four-member counting board is
$600.00 per day, and in Santa Cruz County the cost for one
recount board and supervisor pay is $1,008 per day.
While many factors contribute to the cost of a recount, the
significant cost variations may warrant more review and
detailed guidance. In an effort to address this issue, this
bill requires the SOS, not later than January 1, 2018, to
adopt regulations establishing uniform guidelines for charges
a county elections official may impose when conducting a
manual recount.
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Furthermore, as mentioned above in the author's statement,
existing law does not require all of the ballots cast in the
entire state to be recounted in order to change the result in
a statewide contest. Current law only requires that all the
ballots in each county included in a recount request be
recounted in order to change the result. This means that if
the ballots recounted in the counties listed in the voter's
request make up the vote difference in those counties, then
the entire outcome of the election contest may change. In
addition, current law permits any other voter to request a
recount as long as he or she selects different counties that
were not originally included in the previous request. This
back and forth could continue until every vote is counted or
until a candidate runs out of money. In an effort to try to
address this issue, this bill requires a recount for a
statewide office or measure to be null and void unless each
vote cast for the statewide office or measure is recounted.
Finally, current 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 that were not
included in the original recount request. According to county
elections officials, current law does not clarify what would
happen should another voter request the same precincts as the
original recount request, but request for that recount to be
conducted in a different manner. This bill will address this
situation and make certain that should multiple requests be
made to recount the same precincts, but differ in method, that
the request for the precincts to be manually recounted will
prevail. Specifically, this bill requires a county elections
official, if more than one voter requests a recount for the
same office, slate of presidential electors, or measure, and
at least one request is for a manual recount, to conduct only
one manual recount of the ballots subject to the recount, the
result of which shall be controlling.
5)Fairvote Report: A 2011 survey and analysis conducted by
FairVote, a national non-partisan organization that works to
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promote fair, functional and representative democracy for
voters, examined statewide election recount outcomes and
practices in the United States, using data from elections
taking place in the years 2000 to 2009. The report quantified
various aspects of statewide recounts in the United States in
elections from 2000-2009, including how often they occur, how
often they change outcomes, how much vote totals change and
how these figures vary with the size of the electorate. The
report's major findings include: 1) statewide recounts are
rare; 2) outcome reversals are even rarer; 3) margin shifts in
recounts are small; 4) margin shifts are smaller and recounts
rarer in larger electorates; and 5) most states should revise
their laws governing statewide recounts.
According to the report, states with automatic recount
provisions for state and federal elections are based on a
specified threshold. Some states automatically conduct a
recount within a margin of 0.5 percent between the top two
candidates, other states automatically hold a recount if the
margin is one percent or less, some do so at margins of 0.1
percent up to 0.25 percent, and some conduct automatic
recounts for margins equal to or below 2,000 votes. Finally,
some states do not have automatic recounts although allow
recounts in the case of an exact tie.
According to the report, recounts uphold the value of every vote
when an outcome is in doubt and for that reason the report
makes certain recommendations to states. First, the report
recommends that states without provisions for automatic
recounts should establish them. In addition, the report
recommends that states with provisions for automatic recounts
in elections won initially by 0.5 percent or more should
reduce those triggers to reflect current realities of what is
a realistic change in a recount when there is no evidence of
systematic fraud or error. While a recount trigger of 0.5
percent can make sense for local and state legislative races
with small electorates, the trigger for automatic recounts
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funded by taxpayers in statewide races should be smaller.
Furthermore, given the data on margin shifts in statewide
recounts with modern voting machines, the report recommends
0.1 percent as an automatic trigger for most states, perhaps
rising to 0.2 percent for the smallest population states.
Finally, the report recommends that recount laws should go
hand-in-hand with rigorous post-election audit procedures
designed to identify outcomes that may be questionable due to
fraud or error no matter what the initial margin.
6)Arguments in Support: In support of this bill, FairVote,
writes,
FairVote supports the provisions of AB 44 that modernize
California's recount law. According to FairVote's research of
all statewide recounts occurring since 2000, full statewide
recounts are rarely necessary, as the average change in victory
margin is less than 0.03%, with that number generally becoming
smaller as a state's electorate becomes bigger. Automatic
triggers for recounts in most states are unnecessarily high; a
better approach would be a system of risk-limiting audits to be
ready to establish confidence in outcomes no matter what the
original margin?
We would support improving the bill with a provision to allow
candidates, parties, or individual taxpayers in statewide races
to pay for an accelerated initial count. This provision is
particularly critical in presidential races because, under its
current schedule, California simply could not resolve a close
statewide contest for allocating its electoral votes in a timely
way. We propose that each county be required to show how it
could accelerate its count and what doing so would cost, with
any costs for an accelerated count being paid for by the entity
requesting it.
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7)Arguments in Opposition: The Peace and Freedom Party of
California, who is opposed unless amended, writes:
The point of holding an automatic recount is that when results
are so close that it is uncertain based on the initial count
which candidate(s) would be nominated or elected, or whether or
not a ballot measure would be approved, the ballots should be
recounted. However, the language for presidential primary
elections doesn't serve this purpose?[There] are at least four
specific problems:
(1) Recounts are only triggered by close races in
the two largest parties' presidential primaries.
(2) Presidential primaries nominate neither the
leading nor the leading two candidates.
(3) It is unclear whether automatic recounts would
be of all parties' presidential primaries or only of
the party's which triggered the recount.
(4) Many candidates whose names appear on
California presidential primary ballots are no longer
running by the time recounts would happen.
8)Suggested Amendments: There are a few amendments the
committee may wish to consider. The first is an author's
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amendment concerning the threshold in this bill. This bill
currently requires the threshold that triggers a state-funded
manual recount of all votes cast for a statewide office or
state ballot measure to be the difference in the number of
votes received that is less than or equal to the lesser of
1000 votes or one-and-a-half of one percent of the number of
all votes cast for that office or measure. According to the
author, there is an error in the threshold and the threshold
currently in the bill is much too high. Consequently, the
author requests amending the bill to delete all references to
"one-and-a-half of one percent" and instead insert "0.015
percent."
Second, this bill prohibits the SOS from certifying or
conditionally approving a voting system that cannot facilitate
the conduct of a ballot level comparison risk-limiting audit.
According to the author's office, the purpose of these
provisions is to begin setting the foundation for future
voting systems that will have the ability to conduct of
risk-limiting audits. It is unclear, however, whether these
provisions will impact existing voting systems and possible
upgrades to those systems. As a result, the committee may
wish to amend the bill to add clarifying language to ensure
voting systems that are currently in use or counties that are
in the process of making upgrades to those systems are not
required to abide by this new standard.
Finally, as mentioned above, the Peace and Freedom Party of
California are opposed unless amended, stating in their letter
that the provisions of this bill pertaining to the
presidential primary election do not take into account the
different parties' differing delegate selection rules, as
specified. In order to remedy this, the author requests that
the committee amend the bill to delete provisions of the bill
that permit a state-funded manual recount to occur in a
statewide presidential primary election, as specified.
REGISTERED SUPPORT / OPPOSITION:
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Support
FairVote
VerifiedVoting.org
Voting Rights Task Force
Wellstone Democratic Renewal Club
One Individual
Opposition
Peace and Freedom Party of California (unless amended)
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094
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