BILL ANALYSIS Ó
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
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