BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          ELECTIONS AND CONSTITUTIONAL AMENDMENTS
                              Senator Ben Allen, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 1970        Hearing Date:    6/21/16    
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          |Author:    |Low                                                  |
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          |Version:   |2/16/16                                              |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Frances Tibon Estoista                               |
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             Subject:  Elections:  vote by mail and provisional ballots.

           DIGEST
           
          This bill requires the Secretary of State (SOS) to promulgate  
          regulations to establish guidelines for county elections  
          officials relating to the processing of vote by mail (VBM) and  
          provisional ballots.  
           ANALYSIS
           
          Existing law:

          1)Provides that a VBM ballot must be received by the elections  
            official from whom it was obtained, or by a precinct board in  
            that jurisdiction, no later than the close of polls on  
            election day in order for that ballot to be counted.

          2)Allows VBM ballots to be counted if they are cast by election  
            day and received by the elections official by mail no later  
            than three days after the election, as specified.

          3)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; 








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             c)   The residence address of the voter as shown on the  
               affidavit of registration; and,

             d)   The date of signing.

          4)Requires a county elections official, upon receiving a VBM  
            ballot, to compare the signatures  on the envelope with either  
            of the following:

             a)   The signature appearing on the voter's affidavit of  
               registration or any previous affidavit of registration of  
               the voter; or,

             b)   The signature appearing on a form issued by an elections  
               official that contains the voter's signature and that is  
               part of the voter's registration record. 

          5)Permits a county elections official to use facsimiles of  
            voters' signatures when determining if the signatures match  
            provided that the method of preparing and displaying the  
            facsimiles complies with existing law. 

          6)Requires the elections official, if it is determined that the  
            signatures compare, to deposit the ballot, still in the  
            identification envelope, in a ballot container.  

          7)Provides that if the ballot is rejected because the signatures  
            do not compare, the envelope shall not be opened and the  
            ballot shall not be counted.  Requires the cause of the  
            rejection to be written on the face of the identification  
            envelope.

          8)Authorizes an elections official, in comparing signatures, to  
            use signature verification technology.  Prohibits an elections  
            official, if the signature verification technology determines  
            the signatures does not compare, from rejecting the ballot  
            unless he or she visually examines the signatures and verifies  
            that the signatures do not compare. 

          9)Prohibits a variation of a signature caused by the  
            substitution of initials for the first or middle name, or  
            both, to be grounds for the elections official to determine  
            that the signatures do not compare. 









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          10)Requires a county elections official to establish a free  
            access system that allows a VBM voter to learn if his or her  
            VBM or provisional ballot was counted and, if not, the reason  
            why the ballot was not counted.  

          11)Requires a voter, whose qualification or entitlement to vote  
            cannot be immediately established upon examination of the  
            index of registration for the precinct or upon examination of  
            the record on file with the county elections official, to be  
            entitled to vote a provisional ballot.  Requires the elections  
            official to advise the voter of the voter's right to cast a  
            provisional ballot.  

          12)Requires a voter who is casting a provisional ballot to  
            execute, in the presence of an elections official, the written  
            affirmation stating that the voter is eligible to vote and  
            registered in the county where the voter desires to vote. 

          13)Requires the provisional ballot envelope to be a different  
            color than the color of, but printed substantially similar to,  
            the envelopes used for VBM ballots and to be completed in the  
            same manner as VBM envelopes. 

          14)Requires the elections official to use the VBM signature  
            comparison procedures in existing law to compare the  
            signatures of provisional ballots.

          15)Permits the SOS to adopt appropriate regulations for the  
            purpose of ensuring the uniform application of laws regarding  
            provisional voting. 

          16)Requires provisions of law pertaining to provisional voters  
            to be liberally construed in favor of the voter.



















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          This bill:

           1) Requires the SOS promulgate regulations establishing  
             guidelines for county elections officials relating to the  
             processing of VBM, and provisional ballots.

           BACKGROUND
           
           Current Vote by Mail and Provisional Ballot Signature  
          Verification Practices  :  Existing law requires a county  
          elections official, upon receiving a VBM ballot or a provisional  
          ballot, to compare the signature on the identification envelope  
          with the signature appearing in the voter's registration record.  
           Specifically, existing law requires a county elections official  
          to compare the signatures on the envelope with either the  
          signature appearing on the voter's affidavit of registration or  
          any previous affidavit of registration of the voter, or the  
          signature appearing on a form issued by an elections official  
          that contains the voter's signature and that is part of the  
          voter's registration record.  If the signatures compare, the  
          county elections official is required to deposit the ballot,  
          still in the identification envelope, in a ballot container in  
          his or her office.  If the signatures do not compare, existing  
          law requires the envelope to remain unopened and the ballot not  
          be counted.

          Due to an increase in VBM and provisional ballots, and to make  
          the verification process more efficient, many county elections  
          officials use signature verification technology to compare and  
          verify signatures on ballot identification envelopes.  Existing  
          law, however, prohibits elections officials, if the signature  
          verification technology determines the signatures do not  
          compare, from rejecting the ballot unless he or she visually  
          examines the signatures and verifies that the signatures do not  
          compare.

           Provisional Ballot Guidelines :  Existing law provides that any  
          voter claiming to be properly registered, but whose  
          qualifications cannot be immediately established upon  
          examination of the list of registered voters for the precinct or  
          the records on file with the county elections official, is  
          entitled to cast a provisional ballot.  Moreover, existing law  
          requires an elections official to advise a voter of his or her  








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          right to cast a provisional ballot and requires the voter to  
          execute, in the presence of an elections official, a written  
          affirmation stating that the voter is eligible to vote and  
          registered in the county where the voter desires to vote.   
          Elections officials are required to verify each provisional  
          voter's registration and eligibility to vote before counting a  
          provisional ballot.

          To assist county elections officials in determining the  
          eligibility of provisional voters, the California Association of  
          Clerks and Election Officials has developed guidelines to help  
          aid elections officials in processing provisional ballots.  The  
          goal of the guidelines is to provide some common ground for all  
          counties to determine whether to count a provisional ballot.   
          According to the background materials provided to the committee,  
          these guidelines represent a majority of provisional situations  
          and resolutions that will meet the needs of most counties.   
          However, there likely will be times - due to provisional voting  
          volume, logistics, time left in the canvass, or other reasons -  
          when the scenarios do not perfectly resolve a given provisional  
          ballot question.  In such cases, the guidelines recommend a  
          county elections official to document the situation, consult  
          with their county counsel, make the best decision possible based  
          on the specific facts involving the particular provisional  
          ballot, and share the situation and resolution with other  
          counties. 
          In addition, existing law permits the SOS to develop and adopt  
          regulations for the purpose of processing provisional ballots.   
          The committee, however, is unaware of any regulations that have  
          been developed.  

           COMMENTS
           
            1) According to the author  , increasingly each year, more  
             California voters are choosing to cast their vote with a  
             vote-by-mail (VBM) ballot.  The year 2012 marked the first  
             time that more than 50% of voters cast their vote with a VBM  
             ballot during a statewide general election.  In my district  
             in Santa Clara County, the number of votes [cast] through VBM  
             has increased dramatically - in 2010, 68% of ballots counted  
             were VBM ballots, 70% in 2012, and 76% in 2014.  A similar  
             increasing rate is reflected in many counties across the  
             state.









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             As county election officials see an increase in the number of  
             VBM ballots returned to their office during an election, so  
             has the number of ballots returned that are left uncounted.  
             According to the Pew Center on the States' Election  
             Performance Index, approximately 66,000 VBM ballots were not  
             counted in the 2012 general election.  This was only a 0.5%  
             VBM rejection rate, but is still considerably high compared  
             to most states.  Despite the high use rate of VBM ballot in  
             California, accurate, comprehensive data has not been  
             collected at a statewide level to identify the reasons why  
             voters' ballots are rejected, nor have we known the variation  
             in how counties process rejected VBM ballots.

             The California Voter Foundation (CVF) did a partial study,  
             analyzing uncounted ballot data in three counties,  
             Sacramento, Santa Cruz, and Orange, during the general  
             elections from 2008 to 2012, as well as the primary election  
             in 2012.  The study found that while most ballots were  
             counted, of the nearly 30,000 VBM ballots cast that were not  
             counted, across the three counties on average:

                            Ballots arriving late comprised of 61% of  
                      uncounted ballots,
                            Ballots lacking a signature accounted for  
                      20%, and
                            Ballots with signatures that did not  
                      adequately compare to the signature on file  
                      accounted for 18%.

             Further in Orange County, just six percent of uncounted VBM  
             ballots were due to a signature mismatch; 34% in Sacramento  
             County; and 15% in Santa Cruz County. 

             One reason for the difference in the number of mismatched  
             signatures across counties could be attributed to the lack of  
             guidelines or uniform standards for workers who are comparing  
             signatures on a ballot envelope to a signature on file.  
             Current law and regulations set by the Secretary of State  
             require a voter's signature to be compared however not much  
             is provided in terms of how to compare said signatures.

             AB 1970 will require the SOS to draft regulations  
             establishing guidelines for county elections relating to the  
             processing of vote by mail ballots.








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             The Elections Code allows election officials to construe  
             statutes on provisional ballots to find ways to make a ballot  
             count, versus finding ways to reject it.  In fact, the  
             California Association of Clerks and Elections Officials  
             provide local officials with guidelines to compare signatures  
             on a provisional ballot.  The same practice should be  
             available and enforced for VBM ballots.  By providing  
             elections officials with a proper and uniform set of  
             guidelines, there will be decreased number in uncounted VBM  
             ballots and an increased opportunity for citizens to make  
             their vote count.

            1) Vote by Mail and Provisional Ballot Rejection Rates  :  The UC  
             Davis California Civic Engagement Project conducted a  
             statewide survey of California's 58 county election offices  
             to gain a better understanding of California's use of VBM  
             ballots, including rejection rates.  According to their  
             September 2014 brief, entitled "California's Uncounted VBM  
             Ballots: Identifying Variation in County Processing," in  
             2012, for the first time in a statewide general election,  
             over 50% of California's voters chose to cast their ballot  
             via VBM.  This totaled 6.6 million ballots.  However,  
             approximately 1% of those VBM ballots received by the  
             elections official were rejected during ballot processing.   
             That amounts to approximately 69,000 ballots.  According to  
             the survey, late receipt was the most common reason why a VBM  
             ballot was uncounted.  Signature issues, such as a missing  
             signature or a mismatching signature, were the other top two  
             reasons for VBM ballot rejection.

             According to the study, counties rely on voter signature  
             images to verify the identity of VBM voters and these images  
             can sometimes not compare to a VBM ballot received by  
             counties due to a change in voters' signatures over time or  
             because the initial images (typically voter registration or  
             Department of Motor Vehicles signatures) were not high  
             quality or did not accurately represent a voter's signature.

             Moreover, the systems used to process VBM ballots and verify  
             voter signatures vary from county to county.  According to  
             the report, 78% of counties utilize a manual-based processing  
             system, 20% employ an automated system, and one county uses  
             both.  The study points out that ballot processing systems  








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             have elements of subjectivity with regard to signature  
             comparison.  For instance, manual-based systems rely on  
             individual county standards in signature comparison, while  
             automated systems, also known as signature verification  
             systems, vary in their threshold settings for verification  
             match.  Furthermore, automated systems are from different  
             vendors with different software, which also results in lack  
             of signature threshold standardization.

             According to the study, no identifiable pattern was found  
             between counties with high non-match signature rates and the  
             use of manual versus automated systems.

           
          PRIOR ACTION
           
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          |Assembly Floor:                       |52 - 26                    |
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          |Assembly Appropriations Committee:    |14 - 6                     |
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          |Assembly Elections and Redistricting  |  6 - 1                    |
          |Committee:                            |                           |
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          POSITIONS
           
          Sponsor: Author

           Support: Voting Rights Task Force

           Oppose:  None received

                                          
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