BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 1340 HEARING DATE:
7/7/09
AUTHOR: B. LOWENTHAL ANALYSIS BY:
Darren Chesin
AMENDED: 7/2/09
FISCAL: YES
SUBJECT
Special absentee voters
DESCRIPTION
Existing law defines "special absentee voter" as an elector
who is any of the following:
A member of the armed forces of the United States or any
auxiliary branch thereof;
A citizen of the United States temporarily living outside
the territorial limits of the United States or the
District of Columbia;
Serving on a merchant vessel documented under the laws of
the United States; or,
A spouse or dependent of a member of the armed forces or
any auxiliary branch thereof.
Existing law permits a special absentee voter who is
temporarily living outside of the United States to return
his or her ballot by facsimile transmission. Special
absentee ballots can be requested and provided as early as
60 days prior to an election (normal VBM ballots cannot be
requested or provided until 29 days prior to an election).
Existing law requires all VBM ballots, including special
absentee voter ballots, to be received by the elections
official no later than 8 p.m. on Election Day.
Existing law provides that an application for a VBM ballot
by a special absentee voter or by an overseas voter shall
be deemed an affidavit of registration and an application
for permanent VBM voter status.
Existing law permits a special absentee voter to register
to vote and apply for a VBM ballot by facsimile
transmission, permits an elections official to send a VBM
ballot by mail or facsimile transmission, and permits a
special absentee voter to return his or her voted ballot by
facsimile transmission.
This bill permits a ballot from a special absentee voter,
as defined, who is temporarily living outside the United
States, or who is called for military service within the
United States on or after the final day to apply for a VBM
ballot, to arrive up to 10 days after the election and
still be counted, provided that the ballot is postmarked on
or before election day.
BACKGROUND
Facilitating Voting by Overseas Voters . Over the last six
years, the Legislature has made a number of changes to
state law to facilitate voting by military voters and other
California residents who are outside of the United States.
AB 188 (Maze), Chapter 347, Statutes of 2003, streamlined a
number of provisions of state law to make it easier for
overseas voters to receive their ballots and cast a vote.
Among other provisions, AB 188 did the following:
Specified that an application for a VBM ballot by an
overseas voter was deemed to be a request for voter
registration (if the voter was not already registered to
vote) and an application for permanent VBM voter status.
While California law previously allowed an application
for a VBM ballot made by federal post card application to
serve as an affidavit for registration, such an
application would register the voter for that election
only. AB 188 allowed any VBM ballot request received
from an overseas voter to be considered a request for
voter registration, and the voter's registration was
permanent.
Made all overseas voters permanent VBM voters, thereby
eliminating the need for overseas military voters and
other overseas voters to request a VBM ballot for each
separate election.
Required that all overseas voters be mailed a VBM ballot
60 days before the election, to ensure that the voter has
AB 1340 (B. LOWENTHAL) Page
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sufficient time to receive, complete, and return his or
her ballot. Also repealed a requirement that these
overseas voters make certain written declarations in
order to be eligible to receive their VBM ballot 60 days
before the election.
Allowed the elections official to send an overseas voter
his or her ballot by electronic transmission.
In 2004, the Legislature approved and the Governor signed
AB 2941 (Bates), Chapter 821, Statutes of 2004, which
permits special absentee voters who are temporarily living
outside the United States to return their ballots by
facsimile transmission. AB 2941 was modeled after the
procedures adopted by the Secretary of State (SOS) for the
2003 recall election, when the SOS had first ordered
ballots returned from overseas voters by fax to be counted.
AB 2941 was intended to accommodate voters who, due to
potential delays in international mail delivery and
structural barriers present in combat areas, may not be
able to receive, vote, and return a ballot in the 60-day
period provided for overseas voters. Last year, the
Legislature approved and the Governor signed AB 2786
(Salas), Chapter 252, Statutes of 2008, which extended the
sunset date on the provisions of AB 2941.
COMMENTS
1.According to the author , AB 1340 allows military and
overseas voters' ballots that are postmarked on or before
Election Day to be counted if they are received by their
elections official 10 days after Election Day.
Special absentee voters confront a variety of challenges
when voting that are often out of their control. Given
the time necessary to mail a ballot to a voter overseas
and mail the ballot back, the ballot may not be received
by the elections official prior to the polls closing on
Election Day. California law allows a special absentee
voter to return a voted ballot by facsimile transmission.
However in order to be counted, the ballot must be
received by the voter's county elections official before
the polls on Election Day and must be accompanied by a
signed "oath of voter" declaration acknowledging the
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voter is waiving their right to cast a secret ballot.
AB 1340 provides military and overseas voters with another
option to send back their ballot - one that will allow
them to retain their right to a secret ballot. Eighteen
other states permit military and overseas voters to
exercise an option that is identical or similar to the
one found in AB 1340.
2.Illegible, Missing or Private Postmarks : It is not
uncommon for a postmark to be smudged or otherwise
illegible. Occasionally, mail does not receive a
postmark at all or is self-metered using a private mail
meter or an Internet-based vendor such as Stamps.com
which do not require a postmark. Under existing law,
this is not an issue in California, as all vote by mail
ballots are required to be received by the close of polls
on election day. Under this bill, however, an illegible
or missing postmark could result in a voter's ballot
being discarded. Voters may be given a false sense of
security that their ballots will be counted as long as
they are mailed by election day, only to have some
ballots disqualified due to the lack of a legible
postmark.
3.Buenos Aires, Yes -- Burbank, No . Under this bill, a
special absentee ballot that is postmarked by election
day may be counted if it is received by the elections
official up to 10 days after the election but a regular
(domestic) Vote By Mail ballot that is postmarked by
election day must be received by the elections official
by 8 p.m. on election day in order to be counted. Is
this equitable?
4.Pew Center Report . According to No Time to Vote:
Challenges Facing America's Overseas Military Voters, a
January, 2009 report from the Pew Center on the States,
"California already allows blank ballots to be faxed to
overseas military voters so that they get their election
materials much faster. Since these voters may not have
easy access to fax machines, the state could consider
sending blank ballots by e-mail or other electronic means
(such as through a Web site). To enable these voters to
return completed ballots by postal mail, rather than fax,
in time to have their votes count, California would need
to send out its ballots earlier, extend the deadline by
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which completed ballots must be received to be counted or
a combination of the two steps that will add at least
three days to the process." [Emphasis added.]
5.Delayed Canvass. Under existing law, by the close of
polls on election day, county elections officials have
received all the materials necessary to complete the
official canvass of ballots. This bill would require
county elections officials to begin the official canvass
of ballots before they have received all the ballots that
will be included in the final official canvass. While
many smaller counties have no difficulty completing the
official canvass of ballots in the 28 day deadline,
larger counties frequently take the full amount of time
available to certify election results. Especially since
larger counties would likely receive the largest number
of ballots after election day, this bill could hinder the
ability of a number of counties to certify election
results by the 28th day after an election, as required by
law.
6.Breaking New Ground . If this bill passes, it will
represent the first time that California has allowed any
ballot which was received after election day to be
counted. Florida's experience with counting ballots that
arrive after election day shows that adopting such a
policy can result in a vote counting process fraught with
uncertainty, ambiguity, and unequal treatment of votes.
In a review of overseas VBM ballots that were counted in
Florida in 2000, the New York Times found that hundreds
of ballots that arrived after election day and were
postmarked after the election were improperly counted.
7.Related Legislation. This bill is similar in intent to
SB 582 (Dutton) and a portion of SB 370 (Runner) both of
which failed passage in this committee as well as AB 1367
(Fletcher) and AB 1415 (Adams) both of which failed
passage in the Assembly Committee on Elections and
Redistricting earlier this year.
PRIOR ACTION
Assembly Elections and Redistricting Committee:7-0
Assembly Appropriations Committee: 15-0
Assembly Floor: 79-0
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POSITIONS
Sponsor: Secretary of State
Support: American Legion, Department of California
AMVETS, Department of California
California State Student Association
National Peace Corps Association
University of California Student Association
Vietnam Veterans of America, California State
Council
Veterans of Foreign Wars, Department of
California
Oppose: None received
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