BILL ANALYSIS
AB 1367
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1367 (Fletcher) - As Amended: April 13, 2009
SUBJECT : Elections: vote by mail ballots.
SUMMARY : Allows a vote by mail (VBM) ballot of a member of the
Armed Forces of the United States who is absent from the place
of residence where the member is otherwise qualified to vote to
arrive up to 21 days after election day and still be counted
provided that the ballot is postmarked by the United States
Postal Service or the Military Postal Service Agency, or is
signed and dated by the voter, on or before election day.
EXISTING LAW :
1)Requires all VBM ballots to be received by the elections
official from whom they were obtained or by the precinct board
no later than the close of polls on election day in order to
be counted.
2)Provides that an application for a VBM ballot by an overseas
voter shall be deemed an affidavit of registration and an
application for permanent VBM voter status. Provides that such
an application shall be accepted only if it contains the
voter's name, residence address for voting purposes, the
address to which the ballot is to be sent, the voter's
political party for a primary election and the voter's
signature.
3)Requires the county elections official to mail a ballot to all
overseas voters who are permanent VBM voters as soon as
possible on or after the 60th day prior to an election.
4)Defines a "special absentee voter" as an elector who is any of
the following:
a) A member of the armed forces of the United States or any
auxiliary branch thereof;
b) A citizen of the United States temporarily living
outside of the territorial limits of the United States or
the District of Columbia;
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c) Serving on a merchant vessel documented under the laws
of the United States; or,
d) A spouse or dependent of a member of the armed forces or
any auxiliary branch thereof.
5)Permits a special absentee voter to register to vote and apply
for a VBM ballot by facsimile transmission. Allows an
elections official to send a VBM ballot by mail, facsimile, or
electronic transmission.
6)Allows a special absentee voter who is temporarily living
outside of the United States to return his or her ballot by
facsimile transmission.
7)Allows a special absentee voter who is unable to appear at his
or her polling place because of being recalled to service
after the final day for applying for a VBM ballot to appear
before the elections official in the county in which the voter
is registered to apply for a VBM ballot.
FISCAL EFFECT : Unknown. State-mandated local program; contains
reimbursement direction.
COMMENTS :
1)Purpose of the Bill : According to the author:
In January, a Pew Center Study entitled No Time to
Vote: Challenges Facing America's Overseas Military
Voters raised concerns about California's ability to
provide its military men and women with adequate time
to vote. We have to do better-our men and women in
uniform deserve it.
The Federal Election Assistance Commission reports
that in 2006, . . . only 26.5% of the estimated one
million ballots successfully distributed [to military
and overseas voters] were actually received and
counted. These are troubling statistics to say the
least, especially when we consider the sacrifices
being made by Californians deployed in the Global War
on Terror.
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The Pew Center noted that California's existing
practice of electronically transmitting ballots to our
military men and women improves our service capacity.
However, the only way deployed servicemen and women
are guaranteed enough time to have their ballots
received at their local polling places by the Election
Day Deadline is if their ballots are transmitted
electronically back to the states. Relying on
electronic transmittal raises questions about the
privacy and security of these Californians' votes and
doesn't address the problems that arise when fax
machines aren't available where our military men and
women are deployed-namely that votes won't be counted.
This is a common sense fix toward ensuring that
Californians in uniform successfully exercise their
right to vote, and AB 1367 is it. Extending by
twenty-one days the deadline for receiving military
ballots at designated election sites implements a
solution offered by the Pew Center, and will bring
California into compliance with the FVAP suggested
minimum forty-five day interim period between when a
ballot is mailed to a voter and when it is due at the
polls.
The men and women putting their lives at risk on our
behalf must have their voices heard in the electoral
process and have the privacy of their votes
maintained. The only way to accomplish both now is by
offering AB 1367's 21 day grace period for receiving
ballots at designated election sites.
2)Pew Center Report : The author cites a January 2009 report by
the Pew Center on the States as demonstrating the need for
allowing ballots to arrive up to 21 days after election day in
order to ensure that overseas voters have enough time to vote
a ballot and return that ballot in time to be counted. While
the Pew Center report does indeed express concerns that
California's election laws may not provide enough time for
overseas voters to vote unless they take advantage of the
facsimile transmission option that is provided to overseas
voters, it appears that the report's conclusion may reflect a
misunderstanding of California law.
Specifically, the Pew Center Report suggests that one of the
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main reasons that overseas voters from California may not have
enough time to cast their ballots by mail is that California
does not allow a minimum 45-day transit time for ballots that
are being sent overseas. However, existing California law
requires county elections officials to begin mailing ballots
to registered California voters serving in the armed forces or
living abroad 60 days before the election. Furthermore, the
Pew Center report suggests that California consider sending
blank ballots by e-mail or other electronic means - something
that is already permitted by Section 3103 of the Elections
Code.
Finally, it should be noted that even though the conclusions of
the Pew Center report seem to be based on a misunderstanding
of California law, the report still indicates that
California's overseas voters would have enough time to vote by
postal mail and without using the electronic transmission
options that are made available to overseas voters if the
state added at least three days to the time allotted for
ballots to be sent overseas and returned. The Pew Center
report does not explicitly suggest that California allow
ballots to arrive up to 21 days after an election and still be
counted, as is proposed by this bill.
3)Florida Law : The issue of counting VBM ballots received after
election day gained increased attention during the aftermath
of the 2000 Presidential Election in Florida. VBM ballots
cast in Florida that are received from overseas are counted if
received up to 10 days after the election, provided that the
ballot is signed and dated or postmarked on or prior to
election day. That provision of Florida law is the result of
a consent decree, entered into in 1982 due to concerns that
overseas voters did not have sufficient time between the
primary and general election (which were only a month apart)
to receive, vote and return their ballots.
4)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
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election day and were postmarked after the election were
improperly counted.
The committee should determine whether it wishes to break this
new policy ground, particularly given the potential for
problems similar to those experienced in Florida.
5)No Way to Know if a Voter is in the Military : There is
nothing on a VBM ballot application indicating the request was
made by military personnel, nor do voter registration forms
include a space on which an individual can indicate that he or
she is a member of the military. It would be difficult, if
not impossible, for elections officials to determine if a VBM
ballot received within the 21 day period after the election
was in fact from a member of the military.
6)Not Limited to Overseas Voters : Unlike many of the previous
legislative proposals to allow ballots to arrive after
election day and still be counted, this bill does not require
a military voter to be overseas in order for the extended
deadline to apply. Instead, the provisions of this bill apply
to any member of the armed forces who is an "absent uniformed
services voter" as that term is defined under federal law.
Federal law defines an "absent uniformed services voter" as "a
member of a uniformed service on active duty, who, by reason
of such active duty, is absent from the place of residence
where the member is otherwise qualified to vote." As such,
the provisions of this bill could apply to a member of the
military who is in California on election day if that voter
was on active duty at a military base that is outside the
county where the voter is registered to vote.
7)No Postmark Requirement : Unlike most of the previous
legislative proposals to allow ballots to arrive after
election day and still be counted, this bill does not require
such a ballot to be postmarked by election day in order to be
counted. Instead, this bill provides that the ballot must
either be postmarked by election day, or must be signed and
dated by election day in order to be counted. It is unclear
whether a ballot would be counted if it was dated on or before
election day, but contained a postmark that was dated several
days after election day.
8)Military Voters Only : Under the provisions of this bill, a
VBM ballot from a military voter may arrive up to 21 days
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after the election and still be counted, but a VBM ballot from
a non-military voter who is overseas would still have to be
received by the elections official by the close of polls on
election day in order to be counted. Thus, family members
living with enlisted members of the military overseas would
have to return their ballots by election day, as would
citizens representing the United States as employees at
embassies overseas and citizens serving in the Peace Corps
overseas.
9)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.
Even in elections with relatively low turnout, allowing ballots
to arrive up to 21 days after the election and still be
counted could create problems for elections officials. When
elections officials finish processing all the ballots in their
possession and complete all the other tasks required as part
of the official canvass of an election, the election commonly
is certified at that point, even though the deadline for
certifying an election may be days away. In the case of
special elections held to fill vacancies in the Legislature or
Congress, for instance, it is not uncommon for an election to
be certified just a few days after the election took place.
Under the provisions of this bill, however, the elections
official would have to wait until at least the 21st day after
an election before completing the official canvass and
certifying election results. This could delay the filling of
vacancies and, in the case of primary elections, could delay
the preparation and printing of ballots for a subsequent
general or runoff election. To the extent that this bill
delays the completion of the official canvass at a primary
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election, this bill could actually make it less likely that an
overseas voter will have adequate time to vote and return a
ballot for the general or runoff election, because the delay
of finalizing the official canvass while awaiting the
potential arrival of overseas ballots could delay the
production and mailing of ballots for the general or runoff
election.
10)Alternative Voting Methods : In March 2002, San Francisco
voters approved an initiative requiring the city to use
Instant Runoff Voting (IRV) for city elections. San Francisco
voters first used IRV in an election in November 2004. Under
IRV, voters rank candidates for each office, and the voters'
first choices are tallied. If no candidate receives a
majority of first choices, the candidate who was ranked first
on the fewest number of ballots is eliminated, and the vote
from each voter who had ranked that candidate first is
transferred to the next ranked candidate on that voter's
ballot. This process is repeated until one candidate receives
a majority of votes.
In addition to San Francisco, voters in Berkeley, Oakland, and
San Leandro have approved the use of IRV in certain elections.
AB 1121 (Davis), which is also being heard in this committee
today, would allow up to 10 general law cities and counties to
conduct elections using IRV as part of a pilot project.
This bill could complicate efforts for local governments to
adopt such alternative voting methods. Because IRV requires
all ballots to be tabulated in a first round before votes can
be reallocated to other candidates, it appears that
jurisdictions utilizing IRV must receive all ballots before
they can begin the final tabulation of election results.
Jurisdictions using IRV could have their election results
regularly delayed by days or even weeks as the election
official waited for the receipt of additional VBM ballots that
contained a postmark on or before election day.
11)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.
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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
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.
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1)Arguments in Support : According to the American Legion,
Department of California and the Vietnam Veterans of America,
California State Council:
It is important to allow ballots from our military
stationed abroad to count and creating this small grace
period will help with that. Even when they do their due
diligence and mail it before Election Day, sometimes the
postal process of getting the ballot to its destination
takes longer than anticipated. It often takes military
personnel serving overseas 24-36 days to request, receive,
and return their absentee ballots. When these brave men
and women are putting their lives at risk on behalf of our
country, we should make sure their votes count!
2)Related Legislation : AB 1340 (Bonnie Lowenthal), which is
also being heard in this committee today, would allow ballots
from special absentee voters who are temporarily living
outside the United States to arrive up to 10 days after the
election and still be counted, provided that such ballots were
postmarked by election day. Unlike this bill, AB 1340 would
apply to ballots from all overseas voters.
SB 582 (Dutton), which is being heard in the Senate Elections,
Reapportionment and Constitutional Amendments Committee today,
would allow ballots from certain members of the military to
arrive up to 21 days after the election and still be counted,
provided that such ballots were cast by election day.
REGISTERED SUPPORT / OPPOSITION :
Support
American Legion, Department of California
Vietnam Veterans of America, California State Council
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094