BILL ANALYSIS Ó
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: AB 44 Hearing Date: 6/30/15
-----------------------------------------------------------------
|Author: |Mullin |
|-----------+-----------------------------------------------------|
|Version: |6/24/15 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Frances Tibon Estoista |
| | |
-----------------------------------------------------------------
Subject: Elections: statewide recounts
DIGEST
Creates a new state-funded recount process, as specified.
ANALYSIS
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 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 Secretary of State
(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
AB 44 (Mullin) Page 2
of ?
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.
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
AB 44 (Mullin) Page 3
of ?
provisional ballots, using those voting systems.
This bill:
1)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 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
1,000 votes or 0.00015 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 1,000 votes or 0.00015 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 1,000 votes or 0.00015 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 unless the official canvass of returns in a
statewide primary election shows that the number of votes
received by the candidate receiving the greatest number of
votes was either of the following:
a) Between 0.49085 and 0.50015, inclusive, of the number of
all votes cast.
b) Within 1,000 votes of 50 percent of the number of all
votes cast.
3) Defines "statewide office," for the purposes of this bill,
to mean the office of Governor, Lieutenant Governor,
AB 44 (Mullin) Page 4
of ?
Attorney General, Controller, Insurance Commissioner, SOS,
Superintendent of Public Instruction, Treasurer, or Member
of the United State Senate.
a) 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 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
percent of the number of all votes cast for the office of
President.
4) Prohibits another recount from being conducted if a
state-funded recount is conducted pursuant to the provisions
of this bill.
5) 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.
6) 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.
7) 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.
8) 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
AB 44 (Mullin) Page 5
of ?
SOS issues the certified list of candidates for the
associated general election; or,
b) In a general election, within 60 days of the voter's
request for the recount.
9) Permits the SOS to adopt, amend, and repeal rules and
regulations necessary for the administration of the
provisions of this bill.
10) Requires the elections official to store sealed
ballots in a manner facilitating the retrieval of any
particular ballot in the event of a recount.
11) Requires the SOS, no later than January 1, 2018, to 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.
12) 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 31st day
after the election.
13) 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.
14) 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
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 to only select whether the recount is 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.
AB 44 (Mullin) Page 6
of ?
15) 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.
16) Contains a January 1, 2023 sunset date for the
state-funded manual recount provisions of this bill.
17) Prohibits the SOS from certifying or conditionally
approving a voting system that cannot facilitate the conduct
of a ballot level comparison risk-limiting audit.
18) Defines a voting system that is "noncompliant" as a
voting system that cannot facilitate the conduct of a ballot
level comparison risk-limiting audit.
19) Allows the SOS, until January 1, 2021 to approve a
proposed change or modification to a noncompliant voting
system even if the voting system will remain noncompliant
after the change or modification.
20) Makes other technical and corresponding changes.
BACKGROUND
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.
COMMENTS
1) According to the author , In the June 2014 primary, former
AB 44 (Mullin) Page 7
of ?
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.
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 0.00015 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. 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) 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
AB 44 (Mullin) Page 8
of ?
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.
In addition, this bill makes changes to how recount costs are
calculated. While the SOS has adopted regulations that
specify procedures for recounting 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 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 search
done by the Assembly Elections & Redistricting 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
AB 44 (Mullin) Page 9
of ?
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
revise and adopt regulations establishing uniform guidelines
for charges a county elections official may impose when
conducting a manual recount.
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. Existing 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, existing 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,
AB 44 (Mullin) Page 10
of ?
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.
RELATED/PRIOR LEGISLATION
AB 2194 (Mullin of 2014) would have required the SOS to order an
automatic manual recount of all votes cast for a statewide
office or state ballot measure if the difference in the number
of votes received is less than or equal to 0.1%. AB 2194 failed
to receive the 2/3's vote required for rule suspensions in order
to be heard after the policy committee hearing deadline.
PRIOR ACTION
------------------------------------------------------------------
|Assembly Floor: |74 - 4 |
|--------------------------------------+---------------------------|
|Assembly Appropriations Committee: |17 - 0 |
|--------------------------------------+---------------------------|
|Assembly Elections and Redistricting | 6 - 0 |
|Committee: | |
------------------------------------------------------------------
POSITIONS
Sponsor: Author
Support: California Association of Clerks and Election
Officials
FairVote
Los Angeles County Democratic Party
Santa Clara Board of Supervisors
VerifiedVoting.org
Voting Rights Task Force
Wellstone Democratic Renewal Club
Oppose: None received
-- END --
AB 44 (Mullin) Page 11
of ?