BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: AB 461 HEARING DATE:
6/7/11
AUTHOR: BONILLA ANALYSIS BY:
Darren Chesin
AMENDED: 4/5/11
FISCAL: NO
SUBJECT
Write-in Candidates
DESCRIPTION
Existing law provides every voter the right to write in the
name of any candidate for any public office, as specified.
Existing law 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.
Existing law 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.
Existing law requires state law governing vote by mail and
provisional voting be liberally construed in favor of the
vote by mail voter.
This bill provides that in the event of a manual recount
the 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 vote can be
determined, regardless of whether the voter has complied
with the voting instructions.
BACKGROUND
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.
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 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.
COMMENTS
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1. According to the author , 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.
2. 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 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.
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3. 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.
4. Previous Legislation : SB 439 (Calderon) of 2007,
which was substantially similar to this bill, was vetoed
by the Governor. The Governor's veto message stated, in
part:
"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 also substantially
similar to this bill, was approved by the Assembly, but
was never heard in this 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 also
vetoed by Governor. The Governor's veto message stated,
in part:
"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."
5. Related Legislation . AB 503 (Block), which is pending
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in the Assembly, permits 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.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 5-2
Assembly Floor: 51-21
POSITIONS
Sponsor: Author
Support: California Association of Clerks and Election
Officials
Secretary of State
Oppose: None received
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