BILL ANALYSIS Ó
AB 2686
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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:
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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
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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
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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
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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
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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:
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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