BILL ANALYSIS
AB 2732
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2732 (Eng) - As Amended: April 13, 2010
SUBJECT : Special legislative or congressional election: instant
runoff voting.
SUMMARY : Allows counties to choose use instant runoff voting
(IRV) for special elections held to fill vacancies in the
Legislature and in Congress. Specifically, this bill :
1)Requires, within 30 calendar days of the occurrence of a
vacancy in the office of United States Representative in
Congress, State Senator, or Member of the Assembly, the board
of supervisors of each affected county to determine during a
public hearing whether to use IRV in the election to fill the
vacancy. Provides that IRV will be used in the election to
fill the vacancy only if a majority of the board of
supervisors of every county that is affected by the vacancy
authorizes the use of IRV within 30 calendar days of the
occurrence of the vacancy.
2)Requires the Governor to issue a proclamation calling the
special election to fill the vacancy within five calendar days
of the determination made by the affected county boards of
supervisors whether to use IRV in the special election held to
fill the vacancy, or requires the Governor to issue the
proclamation within 35 calendar days after the occurrence of
the vacancy if no determination is made.
3)Defines the following terms, for the purposes of this bill:
a) "Instant runoff voting" means an election method in
which voters rank the candidates for office in order of
preference, and the ballots are counted in rounds that
simulate a series of runoffs until one candidate receives a
majority of votes.
b) "Continuing ballot" means a ballot that counts towards a
candidate.
c) "Continuing candidate" means a candidate that has not
been eliminated.
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4)Establishes the following requirements for any special
election that is held to fill a vacancy in the Legislature or
in Congress using IRV:
a) Requires every county where IRV will be used to conduct
a voter education and outreach campaign in every language
that a ballot is made available to voters in the county to
familiarize voters with IRV. Requires the voter education
and outreach efforts to include public service
announcements in radio, television, or print media that are
disseminated in a manner consistent with the language
assistance requirements of the federal Voting Rights Act of
1965.
b) Requires the IRV ballot to allow voters to rank as many
choices as there are candidates, unless the voting
equipment cannot feasibly accommodate a number of rankings
on the ballot equal to the number of candidates, in which
case the Secretary of State (SOS) may limit the number of
choices that a voter may rank to the maximum number allowed
by the equipment. Provides that this limit may not be less
than three candidates.
c) Provides that in the first round, every ballot is
counted as a vote towards the first-choice candidate on
that ballot.
d) Provides that after every round, if any candidate
receives a majority of votes from the continuing ballots,
that candidate is the winner.
e) Provides that if no candidate receives a majority, the
candidate receiving the smallest number of votes shall be
eliminated, and every ballot counting toward that candidate
shall be advanced to the next-ranked continuing candidate
on the ballot. If two or more candidates tie for the
smallest number of votes, the candidate to eliminate is
chosen by lot.
f) Provides that once only two candidates remain, the
candidate with the greatest number of votes is elected. If
there is a tie between the two candidates, the tie is
broken by lot.
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g) Provides that if during the elimination stage of any
round, a candidate has more votes than the combined vote
total of all candidates with fewer votes, but that
candidate does not have a majority of votes, all the
candidates with fewer votes than the candidate are
eliminated simultaneously.
h) Provides that if any ballot that reaches a ranking with
no candidate indicated, that ballot shall be advanced to
the next ranking.
i) Requires the following information to be reported after
each IRV election:
i) A "summary report" listing the candidate vote totals
in each round, along with the cumulative number of
undervotes, overvotes, and exhausted ballots in each
round.
ii) A "ballot image report" listing the candidate or
candidates indicated at each ranking for each ballot,
along with the precinct of the ballot and whether the
ballot was cast by mail.
iii) A "comprehensive report" that breaks down the
numbers in the summary report by precinct.
j) Requires preliminary versions of the summary report and
ballot image report to be made available as soon as
possible after the ballots have begun to be processed and
counted.
aa) Requires, prior to the selection of precincts for the
post election manual tally, that a report be made available
to the public that lists, for the ballots subject to the
manual tally, the number of those ballots in each precinct
that counted in each round as undervotes, overvotes,
exhausted ballots, and votes for each candidate.
bb) Provides that if the voting equipment cannot accommodate
the procedures outlined by this bill for the conduct of
elections using IRV, the SOS may make changes to those
procedures provided that IRV shall still be used and the
fewest feasible number of changes made until such time as
the voting equipment can accommodate those procedures in
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their entirety. Provides that if the state adopts
guidelines for the conduct of elections using IRV, the SOS
may use those guidelines instead of state statute to
conduct IRV elections.
cc) Permits the SOS to make any necessary changes to the IRV
procedures outlined in this bill to preserve the secrecy of
the ballot and to ensure the integrity and smooth
functioning of the election.
dd) Requires a special vacancy election conducted using IRV
to be held on a Tuesday at least 72 days but not more than
86 days following the issuance of an election proclamation
by the Governor, except that the special election may be
conducted within 120 days following the proclamation in
order that the election may be consolidated with the next
regularly scheduled statewide election or local election
occurring wholly or partially within the same territory in
which the vacancy exists, provided that the voters eligible
to vote in the local election comprise at least 50 percent
of all the voters eligible to vote on the vacancy.
ee) Provides that if only one candidate qualifies to have
his or her name printed on the IRV ballot, that candidate
shall be declared elected and no IRV election shall be
held.
EXISTING LAW :
1)Requires the Governor to issue a proclamation calling a
special election within 14 calendar days of the occurrence of
a vacancy in a congressional or legislative office, unless
that vacancy occurs after the close of the nomination period
in the final year of the term of office.
2)Requires a special general election to fill a vacancy in the
office of Representative in Congress, State Senator, or Member
of the Assembly, to be conducted on a Tuesday that is at least
112 days, but not more than 126 days, following the issuance
of a proclamation by the Governor calling that special
election. Allows a special general election to be conducted
within 180 days following the proclamation in order that the
election or the primary election may be consolidated with the
next regularly scheduled statewide election or local election
occurring wholly or partially within the same territory in
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which the vacancy exists, provided that the voters eligible to
vote in the local election comprise at least 50 percent of all
the voters eligible to vote on the vacancy.
3)Requires the special primary to be held in the district in
which the vacancy occurred on the eighth Tuesday prior to the
special general election, unless one of the following
conditions is true, in which case the special primary election
is held on the ninth Tuesday prior to the special general
election:
a) The eighth Tuesday prior to the special general election
is the day before, the day of, or the day after a state
holiday; or,
b) The ninth Tuesday proceeding the day of the special
general election is an established election date and a
statewide or local election occurring wholly or partially
within the same territory in which the vacancy exists is
scheduled for the ninth Tuesday preceding the day of the
special general election.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Bill : According to the author:
A growing number of cities in California are turning to
IRV, which is used widely across the country and around the
world. City councils in Berkeley, Oakland, and San
Leandro, California recently voted to implement IRV in
their elections, while Los Angeles, Long Beach and San Jose
are seriously talking about IRV. San Francisco has held
IRV elections for numerous years.
At a time when the state is faced with a near $20 billion
shortfall, a change in statewide elections is necessary
considering that California voters and taxpayers have
recently been barraged by two-round special elections to
fill vacancies. Under the current special election system,
if one candidate fails to gain a majority of the vote
during the primary election, then the top two candidates
receiving votes from each political party enter into a
runoff election. Oftentimes the outcome of the winner is
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obvious. Nevertheless, counties are required to spend
taxpayer dollars, while few voters turn out for these
costly elections.
According to County of Los Angeles
Registrar-Recorder/County Clerk report the Board of
Supervisors, in May of 2009, in terms of actual costs to
the County, Special Vacancy Election conducted between 2000
and 2009 exacted a cost of nearly 11 million dollars
($10,679,725). Additionally, it typically takes a
half-a-year to fill vacancies-depriving residents of
representation in Sacramento and Washington, DC.
AB 2732 allows counties to conduct special elections in a
more cost-effective way by using IRV to fill vacancies.
IRV is a method that allows voters to rank candidates on a
ballot in order of preference - one, two, three and so on -
to elect a majority winner in a single election round of
voting.
IRV will relieve voter fatigue, save taxpayer dollars, and
reduce the amount of time people must go without
representation.
2)IRV in California : As noted by the author, San Francisco is
the only jurisdiction in California that uses IRV for
elections, though Berkeley, Oakland, and San Leandro are
expected to use IRV for municipal elections for the first time
this year.
Given that only a few elections have ever been conducted
anywhere in the state using IRV, and given that all of those
elections were conducted in the same jurisdiction (San
Francisco), it is difficult to evaluate how voters around the
state might respond to IRV. On the other hand, three more
cities are scheduled to use IRV for city elections this year,
which will provide a greater amount of information about how
voters in California respond to IRV.
Given that a natural pilot project of sorts will be conducted
over the next few years as a number of other cities use IRV
for local elections, it may be appropriate to wait until
additional information is available about how voters respond
to using IRV before authorizing the use of IRV for elections
for state and federal office.
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3)Lack of IRV-Capable Certified Voting Systems : There are no
voting systems currently certified for general use in
California that have the capability to tabulate ballots cast
in an IRV election. The voting system first used in San
Francisco for its elections conducted using IRV was
conditionally approved by the SOS for use in San Francisco's
elections on April 30, 2004, which permitted San Francisco to
use the system on a one time basis for the November 2004
General Election. After receiving reports on the system's
performance in that election at a public hearing on February
17, 2005, the SOS conditionally approved the system for use
from March 7, 2005 until December 31, 2005 only in the City
and County of San Francisco. On August 3, 2006 the SOS
received an application requesting a one time, final approval
of the system for use in the November 2006 General Election.
That application was approved, under the condition that the
system not be used again for any election in California.
Nonetheless, on September 14, 2007, the SOS approved the use
of the San Francisco's voting system through December 31,
2008.
San Francisco subsequently obtained a different IRV-capable
system, but that system also was approved on a "one time"
basis for the November 2008 election. It was granted another
"one time" approval for use in the May 19, 2009 statewide
special election, but at that election, San Francisco did not
conduct any races using IRV. Last August, San Francisco was
granted another extension of its approval to use its
IRV-capable system for elections held through calendar year
2010. Although San Francisco did conduct an election using
IRV last November, there was only one candidate in each of the
two offices that appeared on the ballot, so the election was
not significantly different from a voter's standpoint than it
would have been had IRV not been used.
As a result, while San Francisco has been able to conduct
elections using IRV, it has only been due to a series of "one
time" approvals and extensions of previous approvals. Last
December, Alameda County was granted a one time approval by
the SOS to use the same voting system that San Francisco uses
for the 2010 Consolidated Gubernatorial General Election, so
that elections in the cities of Berkeley, Oakland, and San
Leandro could be conducted using IRV in accordance with the
city charters in those cities. In granting that approval to
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Alameda County, the SOS imposed a number of conditions on
Alameda County's use of the system, including a requirement
that extensive voter education and outreach be conducted for
voters in Berkeley, Oakland, and San Leandro.
The approvals for Alameda and San Francisco to use this
IRV-capable system are limited to those jurisdictions; no
other city or county in California could purchase and use that
system for an election in California without separate approval
by the SOS.
Given the lack of certified voting equipment that is capable of
conducting an election using IRV, and given that the equipment
that has been approved generally has been approved on a
limited basis and for use in limited jurisdictions only, the
committee may wish to consider whether it is appropriate to
allow any special election held to fill a vacancy to be
conducted using IRV at this point.
4)Voter Education : As noted above, the only voters in
California who currently vote using IRV in a public election
are voters in San Francisco, while voters in the cities of
Berkeley, Oakland, and San Leandro are scheduled to use IRV
for their city elections for the first time this year. As a
result, in the vast majority of cases, the voters in a
district where a special election is being held to fill a
vacancy in the Legislature or in Congress are unlikely to have
much familiarity with how IRV works or how to cast a ballot
during an election where IRV is being used.
Under the provisions of this bill, elections officials would
have between two and a half and four months between the time
that it was determined that IRV was going to be used in a
special vacancy election and the day that election was held.
In districts where voters are unfamiliar with IRV, it is not
clear whether this will be a sufficient amount of time educate
voters about IRV and about how to fill out their ballots.
This is a particular concern given that special vacancy
elections tend to have a much lower profile than regularly
scheduled elections, so voters may be less likely to pay
attention to election information.
Given the fact that special vacancy elections are scheduled on
such a tight timeline and that so few voters have familiarity
with IRV, the committee should consider whether it is
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appropriate to authorize the use of IRV for these elections.
5)Candidate Elected Without a Vote : This bill provides that if
only one candidate files for office at a special election held
to fill a vacancy in the Legislature or in Congress, and if
that election is scheduled to be conducted using IRV, that the
candidate who qualified to appear on the ballot shall be
declared elected, and no election shall be held. This would
preclude anyone from being able to run as a write-in candidate
to challenge that person. While state law currently allows a
candidate to be declared elected without an election being
held for certain local offices and for superior court judge
when only the incumbent files to run for office, this would
mark the first time that a person would ever be declared
elected to a state or federal office without an election
actually having been held, and without the opportunity for a
person to run as a write-in candidate. The committee may wish
to consider whether such a policy is appropriate.
6)Concerns Raised by the SOS : While not taking an official
position on this bill, Secretary of State Debra Bowen
nonetheless raises a number of concerns about this bill. In
addition to expressing concerns that are similar to those
outlined above about voter education and allowing candidates
to be elected to state or federal office without a vote, the
SOS raises the following concerns:
Vote Tallying. Under current law, in a legislative or
congressional district that encompasses multiple counties,
whether counties use the same voting system is irrelevant
because the Secretary of State is simply required to
compile the county numbers to determine the winner.
However, under the IRV proposal in this bill, determining
the winner is much more complex in a district that
encompasses multiple counties. The ballots cannot be
tallied by each county individually and then forwarded to
the Secretary of State for compilation. That's because
under IRV, the counties must conduct each round of tallying
together to determine which and in what order candidates
are eliminated from the ballot before the next round of
tallying is conducted. . . .
Authorizing the Statute to be Overridden. The measure
permits the Secretary of State to, in certain
circumstances, alter or adopt guidelines that override
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portions of the statute AB 2732 proposes to enact. I do
not believe this is appropriate for several reasons.
First, the Secretary of State, regardless of who is elected
to serve in the office, should not be allowed to alter
statute or adopt guidelines that override statute. Second,
the state should set a standard and have voting systems
meet that standard. Third, by permitting IRV votes to be
tallied differently depending on the functionality of a
particular IRV voting system, people's votes may be
"valued" or "weighted" differently even in the same contest
if the tallying rules are allowed to be different because
County A uses one type of IRV voting system and County B
uses a different type of voting system.
Different Election Methods for Same Governing Body. I also
question whether it is appropriate to have members elected
to the Legislature or Congress using different methods of
weighting or valuing votes. Is it appropriate to, for
example, have 39 members of the Senate elected in the
traditional fashion and 1 member elected via the IRV
method?
Cessation of Decision-Making Authority. This bill takes
the power of how one type of election is conducted away
from state lawmakers and hands it to county boards of
supervisors. Furthermore, the bill allows a board of
supervisors to impact the timing of every single special
election, because it requires the Governor to wait up to 30
days before setting a special election date.
7)Vote Tabulation : As noted above by the SOS, it is unclear how
ballots would be tabulated in a multi-county special election
conducted using IRV. Because elections are conducted by the
counties, when an election is held for a seat that includes
all or part of multiple counties, each county typically
conducts its own election, and the results from each of the
counties are added together to determine the winner of the
seat. This procedure for conducting elections for a seat that
includes all or part of multiple counties would not work with
IRV, because all ballots for the entire district need to be
tabulated together in the first round before elections
officials can make a determination of whether any candidate
has won the election outright based on the first rankings of
the voters, or if one or more candidates need to be eliminated
and the votes for those candidates reassigned to other
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candidates to determine the winner.
While this bill is silent on how ballots would be tabulated in a
multi-county election, the tabulation of all ballots in such a
situation would need to be coordinated, and it is possible
that some or all of the ballots would have to be re-made so
that all the ballots could be run through the same voting
system for tabulation. The committee and the author may wish
to consider amending this bill to specify the manner in which
ballots would be counted in a multi-county election. Because
the SOS is responsible for issuing the certificate of election
to members of the Legislature and members of Congress, it may
be appropriate to make the SOS responsible for tabulating the
ballots in such a situation.
8)Allowing the SOS to Override State Law : Certain provisions of
this bill allow the SOS to ignore any requirement of the bill
that cannot be met due to limitations on the voting system or
systems being used to conduct an election using IRV.
Committee staff is unaware of any other circumstance where the
SOS is explicitly given the authority to ignore state statute
in this manner. The committee should consider whether it
wishes to delegate this authority to the SOS, and whether such
a delegation is appropriate, especially given the fact that
this bill does not provide an explicit method in which the
decisions of the SOS could be reviewed or challenged.
If this provision is included in the bill due to concerns that
limitations on existing voting systems may make it difficult
or impossible to comply with all the conditions of the bill,
it would be more appropriate instead to determine the
capabilities of existing voting systems and to establish
requirements that are consistent with the capabilities of
those systems. Once those requirements have been established,
the committee will better be able to evaluate whether it
wishes to allow IRV to be used in special vacancy elections,
since it will have a better sense of the manner in which those
elections will be conducted.
Alternately, the committee may wish to consider requiring the
SOS to adopt regulations that will govern any elections where
IRV is used. Because the SOS is responsible for the testing
and certification of voting systems, the SOS should have a
sense of the capabilities of voting systems currently in use
in the state, and thus may be best positioned to develop
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procedures for IRV elections that reflect those capabilities.
9)SOS Oversight : Given that IRV has not been used in a
widespread manner in the state, and given the fact that IRV
has never been used in an election for state or federal office
in California, the committee may wish to consider including a
specific requirement for greater oversight by the SOS of IRV
elections conducted pursuant to this bill. Requiring greater
oversight by the SOS of these elections can help ensure that
such elections are conducted smoothly and uniformly.
Additionally, having a single entity that is involved in all
special vacancy elections conducted using IRV will make it
easier for the Legislature to get consistent information about
how this bill is being implemented. In order to provide for
such oversight, the committee may wish to consider amending
this bill to explicitly require the SOS to monitor elections
conducted using IRV pursuant to this bill. Additionally, the
committee may wish to consider requiring the SOS to develop
"best practices" for counties that will conduct special
vacancy elections using IRV based on the experiences of
counties that previously have conducted such elections, and
may wish to require the SOS to make recommendations to the
Legislature about whether and how the IRV procedures should be
changed following IRV elections conducted pursuant to this
bill.
10)Delayed Special Elections : Although one of the arguments in
support of this bill is that it could result in Legislative
and Congressional vacancies being filled more quickly, it
seems likely that in most cases, at least in the immediate
future, this bill would actually be more likely to delay the
filling of such vacancies.
As noted above, only two counties have voting equipment that is
capable and authorized to conduct elections using IRV. Given
that fact, it is likely that most special elections,
particularly in the short term, will continue to be conducted
using a special primary and special runoff election (if
necessary), instead of using a single-round IRV election.
This bill will, in many cases, force the Governor to wait longer
before he or she can call a special election to fill a vacancy
in Congress or in the Legislature. While existing law
requires the Governor to set the date of such a special
election within 14 days of the date that the vacancy is
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created, this bill would force the Governor to wait up to 30
days for the board of supervisors of each affected county to
make a determination of whether the vacancy would be filled
using IRV or using the traditional method of conducting
special elections. The Governor would be unable to schedule
the special election until all of the affected counties were
able to make a determination of which method to use or until
30 days passed, whichever came first. Once all the affected
counties made a determination or the 30-day period expired,
the Governor would have to schedule the special election
within five days. Depending on how long a county board of
supervisors took to make its determination of whether or not
to use IRV, this bill could delay a special election by two to
five weeks over when it would be scheduled under existing law.
11)Proposition 14 : At this June's statewide primary election,
voters will consider Proposition 14, which would change the
method in which elections for state and federal office are
conducted. If approved by voters, Proposition 14 will
implement a "top two" primary election system in California
for most elective state and federal offices. At primary
elections, voters would be able to vote for any candidate,
regardless of party, and the two candidates who receive the
most votes, regardless of party, will advance to the General
Election.
Proposition 14 would also change the procedures for special
elections held to fill vacancies in the Legislature and in
Congress. Currently, at a special primary election, voters
can vote for any candidate, regardless of party. If any
candidate receives more than 50 percent of the vote in the
primary election, that person is elected outright, and no
runoff election is held. However, if no candidate receives
more than 50 percent of the vote, a special runoff election is
held. The candidate from each party who received the most
votes from among the candidates from that party appears on the
special runoff election ballot.
If Proposition 14 is approved, special elections would be held
in a similar manner, except that if no candidate receives more
than 50 percent of the vote in a special primary election, a
special runoff election would be held with the two candidates
who received the most votes in the special primary election,
regardless of political party. In such a case, a special
runoff election could have two candidates of the same
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political party on the ballot.
One of the author's arguments in support of this bill is that it
is often obvious which candidate is going to win a special
runoff election because many districts heavily favor one
political party or the other. As a result, the author argues,
the costs of conducting a special runoff election are an
unnecessary expense given that the outcome of that election is
not seriously in question.
However, if Proposition 14 is approved by the voters in June, it
is likely that significantly more special runoff elections
will be competitive, because those runoff elections may
feature two Democrats in heavily Democratic districts, or two
Republicans in heavily Republican districts.
12)Technical Errors : On page 5, line 1, the word "absentee"
should be replaced by the words "by mail." On page 6, line
40, the words "or the primary election" should be deleted.
13)Previous Legislation : AB 1121 (Davis) of 2009 would have
established a pilot project allowing up to 12 general law
cities and general law counties to conduct a local election
using ranked voting (RV), including IRV, if certain conditions
were met. AB 1121 died after failing passage twice on the
Senate Floor.
AB 1294 (Mullin) of 2007 would have allowed any city, county, or
district to conduct a local election using RV. AB 1294 was
vetoed by Governor Schwarzenegger. In his veto message, the
Governor wrote:
This bill would allow cities and counties, subject to voter
approval, to conduct a local election using a ranked voting
system. This represents a drastic change to the way we
vote. Although there are some proponents for ranked
voting, which allows for so-called "instant runoff"
elections, I am concerned that we don't yet know enough
about how voters will react to such a dramatic change in
the way they vote. For instance, charter cities and
counties already have the right to hold ranked voting
elections, yet only one city has done so thus far, and that
was on a trial basis only.
Further, the machines necessary to implement ranked voting
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are not widely available nor have any been certified by the
Secretary of State. As the Secretary of State recently
decertified the vast majority of electronic voting machines
used for traditional elections, it is premature to even
contemplate moving to ranked voting tomorrow until we have
resolved any issues with the machines needed for how we
vote today.
AB 1515 (Hertzberg) of 2001 would have required special
elections held to fill vacancies in the Legislature or in
Congress to be conducted using IRV. AB 1515 was never heard
in committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Asian American Action Fund
New America Foundation
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094