BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 2021|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 2021
Author: Ridley-Thomas (D)
Amended: 3/15/16 in Assembly
Vote: 21
SENATE ELECTIONS & C.A. COMMITTEE: 4-1, 6/8/16
AYES: Allen, Hancock, Hertzberg, Liu
NOES: Anderson
ASSEMBLY FLOOR: 55-22, 5/5/16 - See last page for vote
SUBJECT: Election process: public observation:
international election observers
SOURCE: Author
DIGEST: This bill clarifies state law to permit international
election observers access to all election processes that are
open to the public.
ANALYSIS:
Existing law:
1)Requires the official canvass to be open to the public, as
specified.
2)Requires all proceedings at the central counting place, or
counting places, if applicable, to be open to view of the
public, and further requires that no person, except one
employed and designated by the elections officials, may touch
any ballot container.
AB 2021
Page 2
3)Requires the processing of vote by mail (VBM) ballot return
envelopes, and the processing and counting of VBM ballots to
be open to the public, as specified. Prohibits a VBM observer
from interfering with the orderly processing of VBM return
envelopes or the processing and counting of VBM ballots,
including the touching or handling of ballots.
4)Requires the process for reviewing rejected ballots to be open
to members of the public, including persons associated with a
campaign or measure.
5)Requires a voter to have the right to ask questions about
election procedures and observe the election process.
This bill:
1)Allows an international election observer to be provided
uniform and nondiscriminatory access to all stages of the
election process that are open to the public, including the
public review period for the certification of a ballot marking
system, the processing and counting of VBM ballots, the
canvassing of ballots, and the recounting of ballots.
2)Prohibits an international election observer from interfering
with a voter in the preparation or casting of the voter's
ballot, with a precinct board member or an elections official
in the performance of his or her duties, or with the orderly
conduct of an election.
3)Defines an "international election observer" to mean a person
who witnesses the administration of an election in California
and who is an official representative of an international
organization such as the United Nations, the Organization of
Security and Cooperation in Europe (OSCE), or the Organization
of American States (OAS).
Background
Current election observer practice. In general, current law
permits members of the public to observe the election process.
For example, existing law requires precinct board members to
conduct certain Election Day procedures in the presence of all
persons assembled at the polling place, requires the semifinal
AB 2021
Page 3
official canvass and the official canvass to be open to the
public, and requires the processing of VBM, provisional, and
rejected ballots to be open to the public, as specified.
Organization for Security and Cooperation in Europe. The United
States is a member of the OSCE, an organization made up of 57
participating states that recognize that democratic elections
form the basis for legitimate government. In 1990, the United
States and all OSCE participating states agreed by consensus to
the Copenhagen Document, reaffirming principles to strengthen
respect for fundamental freedoms, and inviting observers from
other participating states to observe national elections. The
Copenhagen Document states, among other provisions, that
"participating States consider that the presence of observers,
both foreign and domestic, can enhance the electoral process for
States in which elections are taking place. They therefore
invite observers from any other OSCE participating States and
any appropriate private institutions and organizations who may
wish to do so to observe the course of their national election
proceedings, to the extent permitted by law. They will also
endeavor to facilitate similar access for election proceedings
held below the national level. Such observers will undertake
not to interfere in the electoral proceedings."
Also in 1990, the United States sponsored an initiative that led
to the creation of the Office of Democratic Institutions and
Human Rights (ODIHR) as the OSCE's focal point for all
election-related matters, including election observation,
technical assistance, and the review of electoral legislation.
Each year the ODIHR deploys thousands of observers to monitor
elections throughout the OSCE region in order to assess
participating state's election-related commitments. According
to the OSCE Web site, the United States formally invited ODIHR
to send observers to elections in 1996, 1998, 2000, and 2002,
and in 2003, two ODIHR observers came to observe the California
gubernatorial recall election.
Comments
1)According to the author, "The [OSCE], a United Nations partner
on democratization and human rights projects, has monitored
elections in the United States at the request of Civil Rights
groups, such as the NAACP and the ACLU. As an OSCE member
country, the United States has committed to hold free and
AB 2021
Page 4
democratic elections and to allow OSCE members to observe
elections in the United States.
"Despite this commitment at the federal level, state law
governs who can be in a polling place on Election Day.
Several states, including Missouri, South Dakota, North
Dakota, and New Mexico, authorize international observers to
monitor elections. No state expressly forbids international
observers. However, at least two states, Texas and Iowa, have
barred international election observers, indicating that
anyone who is not permitted (voters, poll workers, and poll
watchers) could be subject to arrest.
"OSCE has asked that states expressly authorize international
election observers to guarantee access to elections and to
eliminate the fear of prosecution for individuals tasked with
protecting the democratic process across the world. As a
state that conducts fair and open elections, it only makes
sense to allow the international community to monitor and
learn from our elections."
2)Secretary of State's (SOS) Elections Observation Rights and
Responsibilities Memorandum. The SOS recently (May 13, 2016)
sent out a memorandum to county elections officials outlining
general state and local policies and rights and
responsibilities of members of the public and elections
officials related to observing the elections process.
According to the memorandum, elections observers should be
aware that in general, the law provides elections officials
with some discretion in terms of how various observation laws
are applied and as a result, laws may vary from jurisdiction
to jurisdiction for reasons including, but not limited to, the
size and configuration of the elections office, the staffing
levels, and the number of observers that request access to a
particular process.
3)Other states. As mentioned above, there is a national
commitment to the OSCE to permit international observers to
observe elections in the United States, however, despite this
commitment it is state law which governs the elections in each
state. Some states expressly permit international observers
to observe their elections, while other states allow, but do
not explicitly state in law that international observers as
permitted to observe their elections. According to the
AB 2021
Page 5
National Conference of State Legislators (NCSL), Missouri, New
Mexico, North Dakota, South Dakota, and Washington D.C,
explicitly allow international observers. Additionally, Texas
and Iowa, while not in statute, have rulings from their
respective Attorney General or Secretary of State barring
international election observers.
California law is silent on the matter and does not expressly
forbid or permit international observers.
4)Other organizations. According to the NCSL, besides the OSCE,
the United States also participates in election observation
through two other organizations - the OAS and the Carter
Center.
According to the Carter Center Web site, since 1989, the
Carter Center has observed 101 elections in 39 countries.
Missions are undertaken only upon the invitation or consent of
all major parties to an election. Observers help reassure
voters that they can safely and secretly cast their ballots
and help deter fraud. The Carter Center observation projects
generally begin well in advance of elections. Observer teams
are often in a country to assess registration exercises and
political campaigns before an election. Moreover, during an
election, observers monitor voting and counting and remain
after the ballots have been counted to monitor vote
tabulation.
The United States also participates in election observation
through the OAS. The OAS states that the right to universal
suffrage by secret ballot is a cornerstone of the democratic
system and that it is imperative that citizens of every
country be able to rely on electoral processes that are free,
peaceful and transparent. Moreover, the OAS believes that
independent, impartial observation of elections lends
transparency and confidence to the electoral process and helps
strengthen democracy in the region. Since 1962, the OAS has
deployed more than 200 Electoral Observation Missions (EOM) in
27 African countries. Upon completion of the electoral
process, the EOM make recommendations to help improve the
electoral system.
FISCAL EFFECT: Appropriation: No Fiscal
AB 2021
Page 6
Com.:NoLocal: No
SUPPORT: (Verified6/9/16)
California Association of Clerks and Election Officials
OPPOSITION: (Verified6/9/16)
None received
ARGUMENTS IN SUPPORT: According to the California
Association of Clerks and Election Officials who states in
support of this bill, "Elections are an open and transparent
process. We welcome international visitors and the insight they
bring. We are very appreciative of the opportunity we have to
observe elections in other countries. This exchange of
information benefits everyone and improves our processes."
ASSEMBLY FLOOR: 55-22, 5/5/16
AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta,
Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu,
Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier,
Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin,
Jones-Sawyer, Lackey, Levine, Lopez, Low, McCarty, Medina,
Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez,
Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams,
Wood, Rendon
NOES: Achadjian, Travis Allen, Brough, Chávez, Dahle,
Gallagher, Grove, Hadley, Harper, Kim, Linder, Maienschein,
Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson,
Steinorth, Wagner, Waldron, Wilk
NO VOTE RECORDED: Bigelow, Beth Gaines, Jones
Prepared by:Frances Tibon Estoista / E. & C.A. / (916) 651-4106
6/14/16 16:52:11
AB 2021
Page 7
**** END ****