BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2071


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          Date of Hearing:   April 13, 2016


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                                Shirley Weber, Chair


          AB 2071  
          (Harper) - As Amended March 15, 2016


          SUBJECT:  Vote by mail ballots.


          SUMMARY:  Requires a person delivering vote by mail (VBM)  
          envelopes received by a bona fide private mail delivery company,  
          as defined, to present satisfactory proof of the company's  
          status as a bona fide private mail delivery company in order to  
          process the ballot envelopes.  Specifically, this bill:  


          1)Requires a person delivering VBM envelopes received by a bona  
            fide private mail delivery company, as defined, to present  
            satisfactory proof, as determined by the elections officials,  
            of the company's status as a bona fide private mail delivery  
            company in order to process the ballot envelopes.  Prohibits  
            an elections official, if the person cannot provide  
            satisfactory proof, from processing the ballot envelopes and  
            instead requires the elections official to retain the ballot  
            envelopes in the event of an election contest.  


          2)Requires an elections official, if a VBM ballot envelope is  
            delivered after election day by a bona fide private mail  
            delivery company and the envelope has no postmark, a postmark  
            with no date, or an illegible postmark, to retain the ballot  
            envelope and ballot for further evaluation in the event of an  








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            election contest. 


          3)Defines a "bona fide private mail delivery company" to mean a  
            for-profit courier service that is in the regular business of  
            accepting a mail item, package, or parcel for the purpose of  
            delivery, at a cost, to a person or entity whose address is  
            specified on the item.  Provides that a bona fide private mail  
            delivery company includes, but is not limited to, DHL, Federal  
            Express Corporation and United Parcel Service.  


          EXISTING LAW:  


          1)Provides that a VBM ballot is timely cast if it is received by  
            the voter's elections official via the United States Postal  
            Service (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  








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               envelope;

             b)   The signature of the voter; and,

             c)   The date of signing.


          3)Permits a VBM voter who is unable to return his or her ballot  
            to designate his or her spouse, child, parent, grandparent,  
            brother, sister, or a person residing in the same household as  
            the VBM voter to return the ballot to the elections official  
            from whom it came or to a precinct board before the close of  
            the polls on election day. 


          4)Prohibits a VBM ballot from being returned by a paid or  
            volunteer worker of a general purpose committee, controlled  
            committee, independent expenditure committee, political party,  
            candidate's campaign committee, or any other group or  
            organization at whose behest the individual designated to  
            return the ballot is performing a service.  Provides this  
            prohibition does not apply to a candidate or a candidate's  
            spouse.


          FISCAL EFFECT:  Unknown.  State-mandated local program; contains  
          reimbursement direction. 


          COMMENTS:  


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


               AB 2071 will protect the integrity of California's  
               election system by providing that only legitimate  
               courier services that are in the regular business of  
               delivering parcels may handle and deliver VBM ballots  








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               on behalf of voters after Election Day.  This includes  
               well-known services such as DHL, FedEx, and UPS.  As  
               such, it will ensure that only legitimate votes are  
               counted, and that no California voter is  
               disenfranchised by the counting of ballots that have  
               been illegally harvested or tampered with in the days  
               following an election.


          2)"Postmark Plus Three" and Previous Legislation: In 2014, 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.  Specifically, SB 29 provides that any VBM ballot is  
            timely cast if it is received by the voter's elections  
            official via the USPS or a bona fide delivery company not  
            later than three days after election day, as specified.  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  
            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.  Arriving late was the number one reason why  
            a VBM ballot was rejected.  









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          This bill adds further requirements to VBM ballots that are  
            returned by a bona fide private mail delivery company.   
            Specifically, this bill requires a person delivering VBM  
            ballots received by a bona fide private mail delivery company  
            to present satisfactory proof, as determined by the elections  
            official, of the company's status as a bona fide private mail  
            delivery company in order for the VBM ballot identification  
            envelope to be processed.  This bill defines a "bona fide  
            private mail delivery company" to mean a for-profit courier  
            service that is in the regular business of accepting a mail  
            item, package, or parcel for the purpose of delivery, at cost,  
            to a person or entity whose address is specified on the item,  
            and provides that a bona fide private mail delivery company  
            includes, but is not limited to, DHL, Federal Express  
            Corporation and United Parcel Service.  If a person delivering  
            the VBM ballots is unable to provide satisfactory proof to the  
            elections official, this bill prohibits those VBM  
            identification ballot envelopes from being processed and  
            instead requires an elections official to retain the ballot  
            envelopes in the event of an election contest.  This bill,  
            however, does not provide any guidance or detail on what  
            constitutes satisfactory proof to confirm the company's status  
            as a bona fide private mail delivery company.  Instead this  
            bill provides that proof must be determined by the elections  
            official.  Would a name tag identification card listing the  
            company's name serve as proof?  Would the identification card  
            need to include a photo of the person?  Without any guidance,  
            it is conceivable that ballots will be treated differently  
            across the state.
          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.  








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          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.

          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, if ballots are delivered by a bona fide private  
            mail delivery company and those ballots do not have postmarks,  
            have postmarks that do not have dates, or have illegible  
            postmarks, those ballots would be retained for further  
            evaluation in the event of an election contest.  Again,  
            because this bill does not provide any guidance or details on  
            how a VBM ballot would be further evaluated in the event of an  
            election contest, it is unclear how those ballots would be  
            treated and it is conceivable that those ballots would be  
            treated differently across the state.  
          4)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  








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            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  
            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.  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.
          5)Previous Legislation:  AB 1271 (Grove) from 2014, would have  








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            required the disqualification of VBM ballots that were  
            received after election day if those ballots were delivered by  
            a bona fide private mail delivery company or if those ballots  
            had no postmark, a postmark with no date, or an illegible  
            postmark, as specified.  AB 1271 failed passage in this  
            committee on a 3-4 vote.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Howard Jarvis Taxpayers Association




          Opposition


          None on file. 




          Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094

















                                                                    AB 2071


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