BILL ANALYSIS Ó
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
AB 1271
Page 2
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.
AB 1271
Page 3
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
AB 1271
Page 4
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.
AB 1271
Page 5
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
AB 1271
Page 6
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
AB 1271
Page 7
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:
AB 1271
Page 8
Support
None on file.
Opposition
California Association of Clerks and Election Officials
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094