BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2686


                                                                    Page  1





          Date of Hearing:  April 27, 2016


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                                Shirley Weber, Chair


          AB 2686  
          (Mullin and Gonzalez) - As Amended April 20, 2016


          AS PROPOSED TO BE AMENDED BY THE AUTHOR'S AMENDMENT DESCRIBED IN  
                                  COMMENT #1 BELOW


          SUBJECT:  Elections:  all-mailed ballot elections.


          SUMMARY:  Allows a county to conduct a legislative or  
          congressional vacancy election as a mailed ballot election as  
          part of a pilot project, subject to certain conditions, if more  
          than half the voters in the county are permanent vote by mail  
          (VBM) voters.  Extends the sunset date, from January 1, 2021, to  
          January 1, 2023, on an ongoing mailed ballot election pilot  
          project in San Diego County, and broadens the scope of that  
          pilot project.  Specifically, this bill:  


          1)Extends the sunset date, from January 1, 2021, to January 1,  
            2023, on a previously authorized pilot project that allows San  
            Diego County to conduct special elections as mailed ballot  
            elections, subject to certain conditions, if the election is  
            any of the following:











                                                                    AB 2686


                                                                    Page  2





             a)   A special election to fill a vacancy in Congress or the  
               Legislature, if the district in which the vacancy exists is  
               located wholly within San Diego County;


             b)   A special election to fill a vacancy in the legislative  
               body or governing body of local government agencies located  
               wholly within San Diego County; or,


             c)   A special election to vote on a ballot measure for a  
               local government agency located wholly within San Diego  
               County.


          2)Expands the San Diego pilot project to allow the following  
            types of elections to be conducted under the pilot project:


             a)   Elections that are occurring in local government  
               agencies that include territory that is outside of San  
               Diego County, provided that only the San Diego  
               County-portion of the election is conducted pursuant to the  
               terms of the pilot project; and, 


             b)   Local recall elections.


          3)Allows a county, until January 1, 2023, to conduct a special  
            election to fill a vacancy in Congress or the Legislature as a  
            mailed ballot election as part of a pilot project that is  
            generally subject to the same conditions as the San Diego  
            pilot project, with the following differences:


             a)   Permits a special election to be conducted under the  









                                                                    AB 2686


                                                                    Page  3





               pilot project even if the congressional or legislative  
               district is not wholly contained within the county.


             b)   Provides that a county may only participate in the pilot  
               program if the percentage of permanent VBM voters in the  
               county equals or exceeds 50 percent of the total number of  
               voters in the county, as determined at the most recent  
               statewide general election.


             c)   Requires a county board of supervisors to transmit its  
               resolution approving the county's participation in the  
               pilot program to the Secretary of State (SOS) within 10  
               days of adopting the resolution.  Requires the SOS to  
               notify the Voting Accessibility Advisory Committee and the  
               Language Accessibility Advisory Committee, as created under  
               existing law, within 10 days of receiving the resolution  
               from the county.


             d)   Requires the county elections official to consider  
               proximity to public transportation when determining polling  
               place locations.


             e)   Provides that participating in the pilot project does  
               not preclude the use of a remote accessible VBM system.


          4)Makes corresponding and technical changes.


          EXISTING LAW:  


          1)Permits a special election in San Diego County, held before  









                                                                    AB 2686


                                                                    Page  4





            January 1, 2021, to be conducted by mailed ballot subject to  
            all of the following conditions:

             a)   The special election is being held for any of the  
               following purposes:

               i)     To fill a vacancy in the Legislature or in Congress,  
                 and the legislative or congressional district lies wholly  
                 within San Diego County;

               ii)    To fill a vacancy on the governing body of San Diego  
                 County, or of any city, school district, community  
                 college district, special district, or other district or  
                 political subdivision located wholly within San Diego  
                 County; or,

               iii)   To vote on a local measure, other than a recall, for  
                 San Diego County, or for any city, school district,  
                 community college district, special district, or other  
                 district or political subdivision located wholly within  
                 San Diego County.

             b)   The governing body of the jurisdiction, or the San Diego  
               County Board of Supervisors in the case of a special  
               election to fill a vacancy in the Legislature or in  
               Congress, authorizes the use of mailed ballots for the  
               election.

             c)   The election does not occur on the same date as a  
               statewide primary or general election, or any other  
               election conducted in an overlapping jurisdiction that is  
               not consolidated and conducted wholly by mail.

             d)   Ballot drop-off locations, as specified, are provided  
               such that there is at least one location per city (if the  
               boundaries of the jurisdiction for which the election is  
               being held overlap with the boundaries of a city) and at  









                                                                    AB 2686


                                                                    Page  5





               least one location for every 100,000 registered voters in  
               unincorporated areas, and such locations are open during  
               business hours to receive voted ballots beginning not less  
               than seven days before the election.

             e)   The elections official provides for at least six hours  
               of voting at a satellite location within the jurisdiction  
               on at least one Saturday and Sunday after the ballots are  
               delivered to voters.

             f)   At least one polling place is provided per jurisdiction  
               for which the election is being held, or the polling places  
               are fixed in a manner so that there is one polling place  
               for every 10,000 registered voters within the district, as  
               specified, whichever results in more polling places.   
               Provides that a polling place shall allow voters to request  
               a ballot between 7 a.m. and 8 p.m. on the day of the  
               election if they need replacement ballots for any reason.

             g)   Polling places are established in accordance with  
               existing state and federal accessibility requirements, and  
               access to polling places is evenly distributed throughout  
               the jurisdiction for which the election is being held.

             h)   The elections official does the following for polling  
               places that consolidate one or more precincts for which the  
               elections official has obligations to recruit or attempt to  
               recruit precinct board members who are fluent in a language  
               in addition to English:

               i)     In the case of precincts covered by language  
                 requirements in federal law, the elections official  
                 ensures that the polling place is staffed by precinct  
                 board members who speak that language; and,

               ii)    In the case of precincts covered by language  
                 requirements in state law, the elections official makes  









                                                                    AB 2686


                                                                    Page  6





                 reasonable efforts to ensure that the polling place is  
                 staffed by precinct board members who speak that  
                 language.

             i)   Each voter receives all supplies necessary for the use  
               and return of the mail ballot, including a return envelope  
               for the voted ballot with postage prepaid.

             j)   Each voter receives all of the following from the  
               elections official:

               i)     A notice, translated into all languages as required  
                 by state and federal law, that informs voters of the  
                 following:

                  (1)       That the election is being conducted by mail  
                    and that each eligible voter will receive a ballot by  
                    mail;

                  (2)       The voter may cast a ballot in person at a  
                    satellite location; and,

                  (3)       The voter may request the county elections  
                    official to send a ballot in a language other than  
                    English pursuant to state and federal law.

               ii)    A list of the ballot drop-off, satellite, and  
                 polling place locations, and that list is posted on the  
                 Internet Web site of the county elections office; and,

               iii)   A postage-paid postcard that the voter may return to  
                 the elections official for the purpose of requesting a  
                 ballot in a language other than English.

             aa)  The elections official submits a voter education and  
               outreach plan to the SOS that includes all of the  
               following:









                                                                    AB 2686


                                                                    Page  7






               i)     Education and outreach meetings, and in-person  
                 educational workshops, related to providing voting  
                 materials and assistance in languages other than English,  
                 and ensuring the accessibility of the election process  
                 for individuals with disabilities. 

               ii)    A toll-free voter assistance hotline, as specified,  
                 that is operational between the date that ballots are  
                 mailed to voters until 5 p.m. on the day after the  
                 special election.

               iii)   Public service announcements, as specified,  
                 informing voters of the upcoming election and promoting  
                 the voter assistance hotline.

               iv)    A voter education social media strategy, as  
                 specified.

             bb)  The voter education and outreach plan is posted on the  
               Web sites of the SOS and of the elections official.

             cc)  Election results for the special election are reported  
               by precincts, and the elections official maintains records  
               of persons who voted in the election, as specified, for a  
               minimum of 10 years.

          2)Allows local elections held on no more than three different  
            dates in Monterey, Sacramento, San Mateo, and Yolo counties to  
            be conducted wholly by mail, as part of a pilot project  
            lasting through January 1, 2018, subject to certain  
            conditions.

          3)Requires Monterey, Sacramento, San Diego, San Mateo, or Yolo  
            County, if it conducts an election by mailed ballot pursuant  
            to one of the pilot projects detailed above, to report to the  
            Legislature and to the SOS regarding the success of the  









                                                                    AB 2686


                                                                    Page  8





            election, including, but not limited to, all of the following:

             a)   Any statistics on the cost to conduct the election; 

             b)   The turnout of different populations, including, but not  
               limited to and to the extent possible, the population  
               categories of race, ethnicity, language preference (for the  
               San Diego pilot project only), age, gender, disability,  
               permanent VBM status, and political party preference;

             c)   The number of ballots that were not counted and the  
               reasons they were rejected; 

             d)   Voter fraud; and, 

             e)   Any other problems that became known to the county  
               during the election or canvass.  

            Requires the report, whenever possible, to compare the  
            election conducted under the pilot project to similar  
            elections not conducted as mailed ballot elections in the same  
            jurisdiction or comparable jurisdictions.

          4)Permits an election to be conducted wholly by mail if the  
            governing body authorizes the use of mailed ballots for the  
            election, the election occurs on an established mailed ballot  
            election date, and the election is one of the following:

             a)   An election in which no more than 1,000 registered  
               voters are eligible to participate;

             b)   An election in a city, county, or district with 5,000 or  
               fewer registered voters that is restricted to the  
               imposition of special taxes, expenditure limitation  
               overrides, or both;

             c)   An election on the issuance of a general obligation  









                                                                    AB 2686


                                                                    Page  9





               water bond;

             d)   An election in one of four specifically enumerated water  
               districts; or,

             e)   An election or assessment ballot proceeding required or  
               authorized by the state constitution under Proposition 218.

          5)Authorizes a city with a population of 100,000 or less or a  
            school district to conduct any special election held to fill a  
            vacancy as a mailed ballot election.

          6)Authorizes a district to conduct any election as a mailed  
            ballot election on any date other than an established election  
            date.

          7)Permits every registered voter to request a VBM ballot for an  
            election, and permits every registered voter to become a  
            permanent VBM voter who automatically receives a VBM ballot  
            for every election in which he or she is eligible to vote.

          FISCAL EFFECT:  None.  This bill is keyed non-fiscal by the  
          Legislative Counsel.


          COMMENTS:  


          1)Author's Amendment: According to the author's staff, the most  
            recent set of amendments contained a drafting error. It was  
            the author's intent that those amendments would expand the San  
            Diego pilot project to allow elections to be conducted as a  
            part of, and pursuant to the terms of, the pilot project even  
            in local government agencies that are only partially contained  
            in San Diego County.  Currently, the pilot project is limited  
            to agencies that are wholly contained within the county.  To  
            accomplish that intent, the author is proposing to amend page  









                                                                    AB 2686


                                                                    Page  10





            8, line 31 of the bill to add the words "or partially" after  
            the word "wholly." This analysis reflects the proposed  
            author's amendment.


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


               California consistently faces a combination of low  
               turnout and high cost when special elections are  
               called due to a vacancy in the Legislature and  
               Congress. AB 2686 establishes a pilot program that a  
               county may opt-in to conduct a special election to  
               fill a vacancy in the Legislature or Congress via  
               all-mail-ballot, providing that the county had a  
               permanent vote-by-mail?adoption rate of at least 50%  
               in the last general statewide election.



               By allowing the option to conduct these special  
               elections by all-mailed-ballot, AB 2686 not only  
               preserves the public's ability to choose their  
               representative in the event of a vacancy, but also  
               provides more flexibility for local jurisdictions in  
               conducting special elections.


          3)Existing Mailed Ballot Pilot Projects:  Two years ago, the  
            Legislature approved and the Governor signed AB 1873 (Gonzalez  
            and Mullin), Chapter 598, Statutes of 2014, which allowed  
            special elections in San Diego County to fill vacancies in the  
            Legislature and Congress to be conducted by mailed ballot  
            until 2020, subject to certain conditions.  Last year, the  
            Legislature approved and the Governor signed AB 547  
            (Gonzalez), Chapter 727, Statutes of 2015, which modified some  
            of the conditions in the San Diego pilot project, extended the  









                                                                    AB 2686


                                                                    Page  11





            sunset date by a year, and significantly expanded the types of  
            elections that are allowed to be conducted as mailed ballot  
            elections pursuant to the pilot project.



          In addition to the San Diego pilot project that was authorized  
            by AB 1873, there is another ongoing pilot project authorized  
            by the Legislature and the Governor to examine the use of  
            mailed ballot elections for local elections.  That pilot  
            project was originally authorized by AB 413 (Yamada), Chapter  
            187, Statutes of 2011, which allows Yolo County to conduct  
            local elections on not more than three dates as mailed ballot  
            elections.  AB 413 was intended to serve as a pilot project to  
            evaluate the desirability of further expanding the  
            circumstances under which elections are permitted to be  
            conducted as mailed ballot elections.  Yolo County conducted  
            mailed ballot elections in March 2013 in the City of Davis and  
            the Washington Unified School District as permitted by AB 413,  
            and submitted its report on those elections in December 2013.   
            Yolo County is permitted to conduct local elections as mailed  
            ballot elections on two additional dates before the conclusion  
            of the pilot project.

          In 2014, legislation was enacted to allow San Mateo County to  
            join Yolo County in participating in that ongoing pilot  
            project (AB 2028 (Mullin), Chapter 209, Statutes of 2014), and  
            last year, the pilot project was further expanded to include  
            Monterey and Sacramento Counties (AB 1504 (Alejo), Chapter  
            730, Statutes of 2015).  San Mateo County conducted an  
            election under that pilot project in November 2015, but it has  
            not yet submitted the required report from that election.

          Given the fact that there are two separate, ongoing mailed  
            ballot election pilot projects, and given the fact that only  
            two sets of elections have been held under those pilot  
            projects, the committee may wish to consider whether it is  









                                                                    AB 2686


                                                                    Page  12





            timely or warranted to create yet another mailed ballot pilot  
            project.
          4)Counties Eligible to Participate:  This bill creates a new  
            pilot project under which a county could conduct a special  
            election to fill a vacancy in the Legislature or Congress as a  
            mailed ballot election, but only if at least 50 percent of the  
            voters in the county were signed-up as permanent VBM voters as  
            of the most recent statewide general election.  According to  
            information from the SOS, at least 50 percent of the voters in  
            the following counties were signed-up as permanent VBM voters  
            at the November 2014 statewide general election: Alameda,  
            Alpine, Amador, Butte, Calaveras, Contra Costa, Del Norte, El  
            Dorado, Inyo, Lake, Madera, Marin, Mariposa, Monterey, Nevada,  
            Orange, Placer, Plumas, Riverside, Sacramento, San Benito, San  
            Diego, San Francisco, San Joaquin, San Luis Obispo, San Mateo,  
            Santa Barbara, Santa Clara, Shasta, Solano, Sonoma,  
            Stanislaus, Tehama, and Yuba.  In addition, Sierra County  
            already conducts all its elections by mailed ballot, as state  
            law allows any precinct that has 250 or fewer registered  
            voters to be designated as a mailed ballot precinct, and all  
            precincts in Sierra County have 250 or fewer registered  
            voters.  Finally, just under 50 percent of voters were  
            signed-up as permanent VBM voters in Tuolumne (48.71%) and  
            Yolo (49.28%) counties as of the most recent statewide general  
            election, so those counties may exceed the threshold for being  
            able to participate in the pilot project by this November's  
            general election.


          5)Special Vacancy Elections:  In order to promptly fill  
            vacancies in the Legislature and in Congress, special  
            elections to fill such vacancies typically are conducted in a  
            shortened time period, and elections officials have less time  
            to prepare than they do for regularly scheduled elections. The  
            special primary election to fill a vacancy in the Legislature  
            or Congress can occur as soon as 56 days (or as long as 131  
            days) after the vacancy occurs, and the deadline to file as a  









                                                                    AB 2686


                                                                    Page  13





            candidate in such a special election is the 53rd day before  
            the special primary election.  By contrast, in regularly  
            scheduled elections, the deadline to file as a candidate for  
            the Legislature or Congress falls no later than the 83rd day  
            before the primary election, and ballots begin going out to  
            overseas and military voters on the 60th day before the  
            election.  Furthermore, because vacancies in the Legislature  
            or in Congress can occur due to the death of an officeholder  
            or an unexpected resignation, special vacancy elections often  
            cannot be anticipated in advance, so elections officials may  
            not be able to prepare in advance for these elections.



          While certain elections may be conducted as mailed ballot  
            elections under existing law, most elections-particularly for  
            the Legislature and Congress-are still conducted as  
            traditional elections, where voters have the ability to vote  
            at a polling place on election day.  As a result, many voters  
            who are accustomed to voting at a polling place may expect  
            that there will be a neighborhood polling place at which they  
            will be able to vote in a special election for the Legislature  
            or Congress.  If the number of such polling places is going to  
            be significantly reduced, voter education and outreach efforts  
            may be necessary to ensure that voters who traditionally would  
            vote at a polling place are not negatively affected by this  
            change in election procedure.  Given the unpredictable need  
            and expedited time frame for special elections, however, the  
            ability of elections officials to do effective voter education  
            and outreach may be limited.  While the existing pilot project  
            in San Diego County may help assess the degree to which  
            effective voter education and outreach can be done in such  
                                                                                      circumstances, there is no guarantee that a vacancy will occur  
            in a legislative or congressional district that is wholly  
            located within San Diego County during the time period covered  
            by the pilot project.
          6)Special Vacancy Elections in Multiple Counties: The ongoing  









                                                                    AB 2686


                                                                    Page  14





            mailed ballot pilot projects that are described above are  
            limited to elections that are conducted solely within the  
            county that is participating in the pilot project.  That  
            condition ensures that all voters within a given district will  
            be voting in accordance with the same rules and procedures.   
            Without that condition, if there was a special election in a  
            legislative or congressional district, or in a local  
            jurisdiction, that included portions of two or more counties,  
            and if one county decided to conduct the special election as a  
            mailed ballot election but another county did not, some voters  
            within the district would vote using the mailed ballot method  
            authorized by the pilot project, while the remaining voters in  
            the district would vote using a traditional polling  
            place-model election.  



          The pilot project created by this bill would allow a county to  
            conduct a special election to fill a vacancy in the  
            Legislature or Congress as a mailed ballot election even if  
            the legislative or congressional district is not wholly  
            located within that county, and even if the county or counties  
            that contain the rest of the district are not conducting the  
            election as a mailed ballot election.  Additionally, the  
            author's amendment to this bill, as described above, would  
            allow special elections in the ongoing pilot project in San  
            Diego County to be conducted as mailed ballot elections even  
            in situations where the district or jurisdiction is only  
            partially contained within the county.  As a result, if a  
            special election was held as a mailed ballot election pursuant  
            to this bill in a district or jurisdiction that included  
            territory in more than one county, it is possible that some  
            voters participating in the special election would vote  
            pursuant to the conditions of the mailed ballot election pilot  
            projects, while other voters in the same district or  
            jurisdiction would not.  The committee may wish to consider  
            whether this disparate treatment of voters within the same  









                                                                    AB 2686


                                                                    Page  15





            district or jurisdiction is appropriate.
          7)Vote by Mail and Permanent Vote by Mail Voting:  Under state  
            law, any voter can request a VBM ballot for any election, and  
            any voter can become a permanent VBM voter.  Permanent VBM  
            voters automatically receive a ballot in the mail for every  
            election, without the need to re-apply for a VBM ballot.  As  
            such, any voter who prefers to vote by mail has the ability to  
            do so under existing law.



          Among the arguments that supporters of mailed ballot elections  
            frequently make in support of such elections is that mailed  
            ballot elections are more convenient for voters.  However, it  
            is not clear whether this is the case.  Any voter who finds it  
            more convenient to vote by mail has the option to do so under  
            existing law, and voters who want to vote by mail at every  
            election can sign up for permanent VBM status. Some voters,  
            due to physical disability or language issues, may prefer to  
            vote at the polls in order to take advantage of access or help  
            provided by electronic voting machines or bilingual poll  
            workers.
          8)Arguments in Support:  In support of this bill, Urban Counties  
            of California writes:


               In recent years counties have conducted numerous  
               special elections to fill a vacancy in Congress, State  
               Senate, and Assembly which is very costly and results  
               in low voter turnout. In 2013, counties conducted  
               eight special elections due to a vacancy in the State  
               Assembly and State Senate. In Los Angeles County alone  
               the cost to conduct special elections in 2013 was  
               approximately $6.2 million. These elections require  
               counties to have polling places and staff throughout  
               the county open for 12 hours, when often only a few  
               voters show up to the polls. In California, the  









                                                                    AB 2686


                                                                    Page  16





               permanent absentee rolls continue to grow and many  
               voters choose to vote by mail?



               This bill would allow counties to conduct these types  
               of elections by all-mail ballots under certain  
               conditions which includes safeguards to ensure voters  
               are not disenfranchised, including having at least one  
               polling station available for every 10,000 registered  
               voters, adequate public notice, and voter education  
               and outreach.


          9)Concerns Raised: While not taking an official position on this  
            bill, the American Civil Liberties Union of California,  
            Disability Rights California, and Asian Americans Advancing  
            Justice-Los Angeles submitted a joint letter expressing  
            concerns that if the San Diego pilot project is to be  
            expanded, "further safeguards are needed to ensure voters are  
            notified of the change, counties are sufficiently prepared to  
            receive input from stakeholders, and counties with significant  
            disparities in vote-by-mail are not?allowed to participate in  
            the pilot."  The letter indicates that the three organizations  
            are "committed to working with [the author's] office" on  
            amendments to require participating jurisdictions to notify  
            voters at least four times by mail of the mailed ballot  
            special election, to limit participation to counties that have  
            active advisory committees for voter accessibility and  
            language accessibility, and to prohibit participation by  
            counties with significant disparities in permanent VBM use  
            between all voters and protected classes of voters.


          10)Technical Amendments:  In order to correct a drafting error  
            and to ensure that this bill is implemented properly in  
            situations where a special election is being held in a  









                                                                    AB 2686


                                                                    Page  17





            district that covers only a portion of a county, committee  
            staff recommends the following technical amendments to this  
            bill:



          On page 13, line 7 of the bill, after "county," insert:

          or the portion of the county in which the special election is  
            being held,

          On page 13, line 18 of the bill, strike out "county." and  
            insert:

          county, or the portion of the county in which the special  
            election is being held.

          On page 14, line 31 of the bill, strike out "(7)" and insert:

          (8)

          On page 16, line 34 of the bill, strike out "jurisdiction" and  
            insert:

          county, or the portion of the county in which the special  
            election is being held, 
          11)Related Legislation:  SB 450 (Allen), which is pending in  
            this committee, permits counties, beginning in 2018, to  
            conduct elections in which every voter is mailed a ballot and  
            vote centers and ballot dropoff locations are available prior  
            to and on election day, in lieu of operating polling places  
            for the election, subject to certain conditions.



          AB 2252 (Ting), which is pending on the Assembly Floor, allows a  
            voter with disabilities to electronically receive and mark his  









                                                                    AB 2686


                                                                    Page  18





            or her VBM ballot using a remote accessible VBM system and  
            establishes processes and procedures for the review and  
            approval of remote accessible VBM systems by the SOS.  AB 2252  
            was approved by this committee on a 7-0 vote.
          REGISTERED SUPPORT / OPPOSITION:




          Support


          California State Association of Counties (prior version)


          Rural County Representatives of California (prior version)


          San Diego County


          Urban Counties of California 




          Opposition


          None on file.




          Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094











                                                                    AB 2686


                                                                    Page  19