BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1271


                                                                    Page  1





          Date of Hearing:  May 13, 2015


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          AB 1271  
          (Grove) - As Amended May 6, 2015


          SUBJECT:  Elections:  vote by mail ballots.


          SUMMARY:  Requires the disqualification of vote by mail (VBM)  
          ballots that are received after election day if those ballots  
          are delivered by a bona fide private mail delivery company or if  
          those ballots have no postmark, a postmark with no date, or an  
          illegible postmark. Specifically, this bill:  


          1)Prohibits a VBM ballot from being counted if it is received by  
            the elections official from a bona fide private mail delivery  
            company after election day, regardless of when it was provided  
            by the voter to the company.


          2)Prohibits a VBM ballot from being counted if it is received by  
            the elections official from the United States Postal Service  
            (USPS) after election day if the return envelope for the  
            ballot has no postmark, a postmark with no date, or an  
            illegible postmark.


          3)Provides that a VBM ballot cast by a military or overseas  









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            voter is timely cast if it is received by the elections  
            official no later than three days after election day and the  
            ballot is postmarked by a certified foreign postal service on  
            or before election day.


          EXISTING LAW:  


          1)Provides that a VBM ballot is timely cast if it is received by  
            the voter's elections official via the USPS or a bona fide  
            private mail delivery company 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 date stamped by the elections official upon  
               receipt of the VBM ballot from the USPS or a bona fide  
               private mail delivery company, and is signed and dated by  
               the voter on or before election day.


          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.









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          FISCAL EFFECT:  None.  Keyed non-fiscal by the Legislative  
          Counsel.


          COMMENTS:  


          1)Purpose of the Bill:  According to the author:


               AB 1271 will ensure that all late-arriving [VBM]  
               ballots were voted on or before Election Day, and will  
               prevent them from being handled by third parties who  
               are not postal workers or elections officials. This  
               bill require[s] all late-arriving VBM ballots to have  
               a postmark to ensure that they were voted on or before  
               Election Day, and will ensure that they are not  
               handled and perhaps selectively delivered in the days  
               following an election by non-postal worker third  
               parties.


          2)"Postmark Plus Three" and Previous Legislation: Last year, the  
            Legislature approved and the Governor signed SB 29 (Correa),  
            Chapter 618, Statutes of 2014, which allowed VBM ballots to be  
            counted if they were cast by election day and received by the  
            elections official by mail no later than three days after the  
            election.  Prior to the enactment of SB 29, VBM ballots in  
            California could be counted only if they were received by the  
            elections official by election day.



          SB 29 was introduced in response to the fact that an increasing  
            number of VBM ballots that were returned to elections  









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            officials were arriving too late to be counted.  Furthermore,  
            given a number of recently enacted and planned USPS facility  
            closures, there was a fear that the number of ballots arriving  
            too late to be counted would continue to rise.  According to a  
            September 2014 report by the California Civic Engagement  
            Project at the University of California at Davis Center for  
            Regional Change, nearly 69,000 VBM ballots that were received  
            by county election offices in California for the November 2012  
            general election were rejected during ballot processing, with  
            47.8 percent of uncounted ballots being rejected because they  
            arrived too late.
          3)Mail Without Legible Postmarks: One provision of SB 29 allowed  
            a VBM ballot to be counted if the return envelope had no  
            postmark, a postmark with no date, or an illegible postmark,  
            if the ballot was (1) received by the elections official no  
            later than three days after the election, (2) received from  
            the USPS or a bona fide private mail delivery company, (3)  
            date stamped by the elections official upon receipt from the  
            USPS or bona fide private mail delivery company, and (4) the  
            VBM ballot envelope was signed and dated by the voter on or  
            before election day.  



          Information provided by the California Association of Clerks and  
            Election Officials (CACEO) during the consideration of SB 29  
            suggests that a significant portion of ballots that are  
            received by mail do not have a legible postmark.  According to  
            a survey that CACEO conducted of county elections officials  
            regarding the ballots received by those officials in the six  
            days after the November 2012 general election, approximately  
            10.4 percent did not have a postmark, while another 2.5  
            percent had an illegible postmark.  Among VBM ballots received  
            from military and overseas voters, the proportion of ballots  
            without a legible postmark was even higher-19.2 percent of  
            such ballots did not have a postmark, and another 4.3 percent  
            had an illegible postmark.









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          To the extent that the survey information from CACEO is  
            representative of the proportion of VBM ballots that are  
            returned by mail and fail to receive a legible postmark, it is  
            likely that county elections officials receive thousands of  
            VBM ballots in the three days following a statewide election  
            that do not have legible postmarks.  Under this bill, those  
            ballots would not be able to be counted.
          4)Bona Fide Delivery Services Other than USPS:  In addition to  
            requiring VBM ballots that arrive after election day to be  
            disqualified if they do not have a legible postmark, this bill  
            also requires VBM ballots that arrive after election day from  
            a bona fide delivery service to be disqualified, regardless of  
            whether those ballots include proof that they were provided to  
            the bona fide delivery service on or before election day.  As  
            a result, ballots returned by voters to elections officials by  
            FedEx, UPS, or other similar private mail carriers would need  
            to be received by the elections official by the close of the  
            polls on election day in order to be counted.  Although it is  
            uncommon, elections officials report that voters occasionally  
            return their ballots by FedEx, UPS, or other similar private  
            mail carriers.  



          According to the author's staff, the rationale for treating  
            ballots delivered by private mail delivery companies  
            differently than ballots delivered by USPS is not due to a  
            concern with ballots delivered by FedEx, UPS, or similar  
            private mail carriers.  Instead, the author is concerned that,  
            because the term "bona fide private mail delivery company" is  
            not defined, elections officials could accept ballots that  
            were delivered by delivery companies that are less reputable  
            or legitimate than those more established companies.  While it  
            is true that the term "bona fide private mail delivery  
            company" is not defined in the Elections Code, the fact that  
            the term includes the words "bona fide" would seem to preclude  









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            elections officials from accepting ballots from delivery  
            companies that were not legitimate, authentic delivery  
            companies.  Is there any reason to believe that elections  
            officials would abuse their discretion-and would ignore the  
            language of state law-by accepting ballots returned by  
            less-than-legitimate private mail companies?
          5)VBM Ballot Deadlines in Other States:  Each state has its own  
            deadlines for the return of VBM 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, for the 2014 general election, three  
            states required 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 at the time) required  
            such ballots to be received by election day.  Eleven states  
            and the District of Columbia allowed mail ballots from  
            civilians living in the US to arrive after election day and  
            still be counted.





            For active duty military and overseas citizens who are covered  
            under UOCAVA, for the 2014 general election, 28 states  
            (including California at the time) required ballots to be  
            received by election day.  Twenty-two states and the District  
            of Columbia allowed VBM ballots from at least some voters who  
            are covered under UOCAVA to arrive after election day and  









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            still be counted.



            In all, 22 states and the District of Columbia allow VBM  
            ballots from at least some voters to arrive after election day  
            and be counted.  According to research by committee staff,  
            among the jurisdictions that allow ballots received after  
            election day to be counted, at least 14 appear to allow  
            ballots that lack legible postmarks to be counted, and some  
            jurisdictions even allow ballots to be counted if they are  
            postmarked after election day, provided that the ballot is  
            dated on or before election day by the voter.
          6)Arguments in Opposition: In opposition to this bill, the  
            California Association of Clerks and Election Officials  
            writes:


               The postmark rules were passed last year and have not  
               been fully implemented so there is no way, using data  
               and facts, to know the numbers of ballots which may  
               have unreadable or missing postmarks. It is, in our  
               view, pre-mature to amend this important provision of  
               the election code which was intended to enfranchise  
               more voters.



               This bill would suppress voter turnout at a time when  
               low turnout is a central concern of both elected and  
               election officials while offering no objective claims  
               of increased security or integrity.


          REGISTERED SUPPORT / OPPOSITION:











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          Support


          None on file.




          Opposition


          California Association of Clerks and Election Officials




          Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094