BILL ANALYSIS �
AB 461
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Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 461 (Bonilla) - As Amended: April 5, 2011
SUBJECT : Write-in candidates.
SUMMARY : Requires a write-in vote to be counted, if the
voter's intent can be determined, regardless of whether the
voter has complied with the voting instructions. Specifically,
this bill : provides that in the event of a manual recount
conducted pursuant to state law, provisions of the law governing
the counting of write-in votes shall be liberally construed to
ensure that each ballot is counted if the intent of the voter
can be determined, regardless of whether the voter has complied
with the voting instructions.
EXISTING LAW :
1)Provides every voter the right to write the name of any
candidate for any public office, including that of President
and Vice President of the United States, on the ballot of any
election.
2)Provides that for voting systems in which write-in spaces
appear directly below the list of candidates for that office
and provide a voting space, no write-in vote shall be counted
unless the voting space next to the write-in space is marked
or slotted as directed in the voting instructions.
3)Provides that for voting systems in which write-in spaces
appear separately from the list of candidates for that office
and do not provide a voting space, the name of the write-in
candidate, if otherwise qualified, shall be counted if it is
written in a manner described in the voting instructions.
4)Requires state law governing vote by mail voting be liberally
construed in favor of the vote by mail voter.
5)Requires state law governing provisional voting be liberally
construed in favor of the provisional voter.
6)Requires state law governing the approval of voting systems be
liberally construed so that the real will of the electors will
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not be defeated by any informality or failure to comply with
all of the provisions of the law.
FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
AB 461 helps protect against voter disenfranchisement. This
bill extends a similar allowance that is currently afforded
to absentee and provisional voting in order to honor the
voter's intent.
Existing law requires that a ballot for a qualified
write-in candidate be counted if, on specified voting
systems, the candidate's name is written on the ballot in
the blank space provided and the voting space next to the
write-in space, if provided, is marked according to voting
instructions. It further requires that, for other voting
systems, a ballot for a write-in candidate, if otherwise
qualified, be counted if the name is written in the manner
described in the voting instructions.
Existing law provides that provisions governing absentee
and provisional voting shall be liberally construed in
favor of the voter. However, there is no provision
providing for the liberal construction of write-in voting
laws when a voter writes-in the name of a qualified
write-in candidate, but neglects to fill in the oval.
A recount in a mayoral race in 2004 brought the deficiency
in current law to light. A qualified write-in candidate
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lost the election by a close margin because a great number
of voters wrote-in the candidate's name in the correct
location, but did not darken the oval next to the write-in
space. The county registrar of voters cited state law that
requires the oval to be completed in order for a write-in
vote to count.
AB 461 would require a liberal construction of write-in
voting provisions in the event of a manual recount to
ensure that a ballot is counted if the voter's intent can
be determined, regardless of whether the voter has
literally complied with the voting instructions.
2)The Case of Donna Frye : Donna Frye was a qualified write-in
candidate for mayor in the city of San Diego at the November
2004 general election. When the official canvass of election
results was completed, it showed Frye finishing second to
incumbent mayor Dick Murphy by 2,108 votes. A recount,
requested by five media organizations and two Frye supporters,
uncovered a total of 5,551 ballots in which a voter wrote-in
Frye's name on the ballot in the correct location, but did not
darken the oval next to the write-in space. Had those ballots
been counted for Frye, she would have won the election by
3,443 votes. However, the registrar of voters in San Diego
County refused to count those votes, citing state law that
requires the oval to be darkened in order for a write-in vote
to count. The registrar's position was subsequently upheld by
the San Diego Superior Court.
This bill would provide that, in the event of a manual
recount, provisions of law governing the counting of write-in
votes shall be liberally construed to ensure that each ballot
is counted if the intent of the voter can be determined,
regardless of whether the voter has complied with the voting
instructions. If this bill were to become law, in a future
case with issues similar to those that arose during Donna
Frye's mayoral race, votes in which the voter wrote-in the
name of a qualified write-in candidate, but did not fill in
the oval, would be counted.
3)Manual Recounts and Write-in Candidates : Existing law
provides three avenues for election recounts. The elections
official who conducted the election or a court can order a
recount under certain specified situations. In addition, any
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voter (including a candidate) may, within a specified
timeframe, request a recount of the votes cast for candidates,
slate of presidential electors, or for or against any measure,
but the voter filing the request must pay the costs of the
recount in advance. If after the recount is completed and the
candidate, slate of presidential electors, or the position on
the measure for which the recount was conducted is deemed to
have prevailed, which it did not in the official canvass, the
voter who requested the recount is entitled to a refund of the
money paid to cover the costs of the recount. When requesting
a recount, state law allows the requestor to determine whether
the recount is conducted manually, by means of the voting
system used originally, or both.
The provisions of this bill would be applicable only if a voter
requested a manual recount in a race that had at least one
qualified write-in candidate. In all other circumstances, the
law would remain unchanged, and write-in votes would be
counted only if the voter filled in the voting space next to
the write-in space. The limited application of this bill to
circumstances where the voter requests a manual recount could
mean that certain write-in votes where the intent of the voter
is clear, but the voter failed to follow the voting
instructions, will go uncounted. However, this limited
application may simplify implementation and, in many cases,
transfer any associated costs to the entity requesting the
recount.
4)Liberal Construction of the Law : State law currently provides
that provisions of the law governing vote by mail ballots and
provisional ballots shall be liberally construed in favor of
the voter. In addition, state law provides that provisions
governing the approval of voting systems be liberally
construed so that the will of the electors will not be
defeated by any informality or failure to comply with all of
the provisions of the law. These laws were passed with the
intent to ensure that votes are not discarded due to a
technicality.
5)Fill-in the Bubble : The requirement that a voter fill in the
voting space next to the write-in space in order for that vote
to be counted was adopted as an administrative convenience to
facilitate the machine tabulation of ballots. Because
automated tabulating devices typically do not have the
capability of determining whether a voter has written anything
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in the write-in space, the requirement that the voting space
be filled in allowed the machine to identify those ballots
that may have a write-in candidate. This bill would allow a
vote to be counted during a manual recount regardless of
whether a voter has complied with the voting instructions.
6)Related Legislation : AB 503 (Block), also being heard in this
committee today, requires an election official, upon the
request of a qualified write-in candidate, to hand tally the
votes for the write-in candidate if the elections official
makes a specified determination, and requires the elections
official to count each ballot if the intent of the voter can
be determined.
7)Previous Legislation : SB 439 (Calderon) of 2007, which was
substantially similar to this bill, was vetoed by Governor
Schwarzenegger, who wrote in his veto message, "The bill does
not specify how the voter's intent could be determined. If
enacted this bill would introduce subjectivity into the
electoral process without providing any direction or guidance
to the elections officials?Requiring that a voter fill in the
corresponding bubble for a write-in candidate is necessary for
the efficient administration of the vote count, and imposes a
very small burden on a voter."
AB 43 (Vargas) of 2005, which was substantially similar to this
bill, was approved by the Assembly, but was never heard in the
Senate Elections Committee.
SB 1050 (Bowen) of 2005, would have required a hand tally of all
ballots at the request of a write-in candidate, if specified
conditions were met. SB 1050 was vetoed by Governor
Schwarzenegger, who wrote in his veto message, "This process
will expand the number of manual hand recounts, which will
lead to an unnecessary delay in completing the canvass and
certifying election results. It will require county elections
officials to review every mark on ballots even in situations
where it is virtually impossible for the candidate challenging
the vote to prevail."
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Clerks and Election Officials
AB 461
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Secretary of State Debra Bowen
Opposition
None on file.
Analysis Prepared by : Maria Garcia / E. & R. / (916) 319-2094