BILL ANALYSIS �
AB 1805
Page 1
Date of Hearing: March 27, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1805 (Huffman) - As Introduced: February 21, 2012
SUBJECT : Military or overseas voters.
SUMMARY : Establishes new voting procedures for military and
overseas voters, as defined, to comply with the federal
Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C
Sec. 1973ff et seq.) and implement the policies of that act and
the Uniform Military and Overseas Voters Act (UMOVA) adopted by
the National Conference of Commissioners on Uniform State laws.
Specifically, this bill :
1)Eliminates the term "special absentee voter" and replaces it
with "military or overseas voter."
2)Defines a "military and overseas voter" as an elector who is
any of the following:
a) A member of the active or reserve components of the
United States (US) Army, Navy, Air Force, Marine Corps, or
Coast Guard; a Merchant Marine; a member of the US Public
Health Service Commissioned Corps; a member of the National
Oceanic and Atmospheric Administration Commissioned Corps
of the US; a member on activated status of the National
Guard or state militia; or a spouse or dependent of a
member of any of these organizations; or,
b) A citizen of the US outside of the territorial limits of
the US or the District of Columbia.
3)Expands the definition of "elector" to include any citizen of
the US outside the territorial limits of the US or the
District of Columbia, who, except for the requirement that he
or she must be a resident of an election precinct in the state
at least 15 days prior to an election, is eligible to vote in
California and meets any of the following conditions:
a) He or she was a resident of California when last living
within the territorial limits of the US or the District of
Columbia;
AB 1805
Page 2
b) Had he or she been of voting age when last living within
the territorial limits of the US or the District of
Columbia, he or she would have been a resident of
California; or,
c) He or she was born outside of the US or the District of
Columbia, his or her parent or legal guardian was a
resident of California when the parent or legal guardian
was last living within the territorial limits of the US or
the District of Columbia, and he or she was not previously
registered to vote in any other state.
4)Provides that any military or overseas voter, as defined, has
the right to register for and vote by a vote by mail (VBM)
ballot in any election within the state, including any
election for federal office, state office and state ballot
measures, and any local government office or ballot measure
held in the precinct in which he or she was a resident when
last living within the territorial limits of the US or the
District of Columbia, or in which his or her parent or legal
guardian resided when the parent or legal guardian last lived
within the territorial limits of the US or the District of
Columbia.
5)Requires a military or overseas voter's VBM application to
include the following:
a) The voter's name;
b) The voter's date of birth;
c) The address of the voter's residence in the state when
the voter was last living within the territorial limits of
the US or the District of Columbia or, if qualified, the
address of the voter's parent or legal guardian when the
parent or legal guardian was last living within the
territorial limits of the US or District of Columbia;
d) The address to which the ballot is to be sent;
e) The political party preference or a statement that the
voter declines to state a political party preference; and,
f) The voter's signature.
AB 1805
Page 3
6)Requires an elections official that receives a completed
federal postcard application from a qualified military or
overseas voter to deem that application as an affidavit of
registration, an application for a VBM ballot, and an
application for permanent VBM status.
7)Requires an application made pursuant to this bill be received
by the elections official no later than seven days prior to
the date of the election.
8)Requires the Secretary of State (SOS) to ensure compliance
with the provisions of this bill.
9)Requires the SOS to make available, to qualified military or
overseas voters, information on procedures for military and
overseas voters to register to vote and cast ballots.
10)Requires each elections official to have a system available
which allows a military or overseas voter to electronically
request and receive a VBM application, an unvoted ballot, and
other information as required by this bill.
11)Requires the SOS to develop standardized military or overseas
voting materials, as specified.
12)Requires the SOS to prescribe the form and content of a
declaration for use by military or overseas voters, as
specified, and prescribe requirements for the timely and
proper completion of a military or overseas voter's ballot.
13)Requires each elections official to ensure the military or
overseas declaration form is a prominent part of military or
overseas voter's balloting materials for which the declaration
is required.
14)Permits a military or overseas voter to use a federal
write-in absentee ballot (FWAB) in any election in which they
are qualified to vote.
15)Requires elections officials to send VBM ballots by means of
transmission (mail, facsimile, or electronic transmission)
requested by a qualified military or overseas voter.
16)Requires an elections official, for an election in which
California has not received a waiver pursuant to the Military
AB 1805
Page 4
and Overseas Voter Empowerment Act (42 U.S.C. Sec. 1973ff et
seq.), to transmit military or overseas ballots and balloting
materials, not later than 60 days before the election, for all
military and overseas voters who have submitted a valid
application by that date. Requires an elections official who
receives a ballot application from a military or overseas
voters after the 60th day before the election to transmit a
ballot and ballot materials not later than two business days
after the application arrives.
17)Requires ballots from military or overseas voters to be
submitted for mailing by the date necessary for the ballot to
be received by the elections official from whom it was
obtained or by the precinct board no later than the close of
the polls on election day.
18)Permits a military or overseas voter to use a FWAB to vote
for all offices and ballot measures for which they are
qualified to vote.
19)Provides that a valid ballot cast and submitted for mailing
pursuant to this bill shall be counted if it is received by
the close of business on the day of the election.
20)Requires elections officials to include with the ballot a
declaration to be signed by the military or overseas voter
stating that a material misstatement of fact in completing the
ballot may be grounds for conviction of perjury.
21)Requires elections officials to implement an electronic free
access system, which allows military or overseas voters to
determine by telephone, electronic mail or Internet whether
their ballot was received.
22)Requires elections officials to request an electronic mail
address from each military or overseas voter who registers
after the effective date of this bill. Permits a military or
overseas voter who provides an email address to request that
his or her application for a ballot be considered a standing
request for electronic delivery of a ballot for all elections
held through December 31 of the year following the calendar
year of the date of the application or another shorter period
as specified by the voter.
23)Requires each elections official, at least 100 days before a
AB 1805
Page 5
regularly scheduled election and as soon as practicable before
a special election, to publish on his or her website a list of
all the ballot measures and federal, state and local offices
that, as of that date, are expected to be on the ballot for
that election. Requires the list to contain instructions as
to how to vote on a FWAB, should the voter decide to do so.
Permits military or overseas voters to request a copy of this
list and requires each elections official to send the list to
the voter using the method of transmission (mail, facsimile,
or electronic transmission) that the voter requests. Requires
the elections official to update the list on his or her
website as soon as practicable with the certified list of
candidates for office and certified ballot measures.
24)Provides that a military or overseas voter's mistake or
omission in the completion of a document under this bill shall
not invalidate the document if the mistake or omission does
not prevent determining whether the voter is eligible to vote.
Provides that a military or overseas voter's failure to
satisfy nonsubstantive requirements does not invalidate a
document submitted pursuant to this bill.
25)Provides that, for FWABs, if the intention of the voter is
discernible pursuant to what constitutes a vote, an
abbreviation, misspelling, or other minor variation in the
form of the name of the candidate or a political party, shall
be accepted as a valid vote.
26)Provides that the execution of a document under this bill is
not required to be notarized.
27)Permits a court to issue an injunction or grant other
equitable relief, as appropriate, to ensure compliance with,
or enforce, this bill upon application by a military or
overseas voter or an elections official.
28)Makes other conforming changes.
EXISTING LAW :
1)Defines a "special absentee voter" as an elector who is any of
the following:
a) A member of the armed forces of the US or any auxiliary
branch thereof;
AB 1805
Page 6
b) A citizen of the US temporarily living outside of the
territorial limits of the US or District of Columbia;
c) Serving on a merchant vessel documented under the laws
of the US; or,
d) A spouse or dependent of a member of the armed forces or
any auxiliary branch thereof.
2)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. 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
special absentee voters and overseas voters who are permanent
VBM voters as soon as possible on or after the 60th day prior
to an election. Requires county elections officials to send
with the ballot a list of all candidates who have qualified
for the ballot by the 60th day before the election and a list
of the all measures that are to be submitted to the voters and
on which the voter is qualified to vote.
4)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.
5)Allows a special absentee voter who is temporarily living
outside of the US to return his or her ballot by facsimile
transmission. Requires the ballot to be received by the
voter's elections official no later than the closing of the
polls on election day in order to be counted.
FISCAL EFFECT : Unknown. State-mandated local program; contains
reimbursement direction.
COMMENTS :
1)Purpose of the Bill : According to the author:
AB 1805
Page 7
Current federal law requires that elections officials
provide military and overseas voters with the appropriate
mechanisms for casting ballots in federal elections. AB
1805 expands the voting rights of military and overseas
voters to include state and local elections. This bill
will change the terminology from "special absentee voter"
to military or overseas voter." This bill provides
procedures for military and overseas voters to register to
vote, apply for voting ballots, receive voter information,
and cast votes.
Thousands of overseas and military voters from throughout
California serve in a variety of uniformed and civilian
roles, from frontline active duty to restoration and
international aid service. Often working in the world's
hotspots of terrorism, disease and poverty, these men and
women leave behind families - parents, spouses, children
and friends - in the name of democracy. And while they
must separate from their loved ones for months or years at
a time, they maintain their connections, through their
families and friends, to the California communities they
call home.
AB 1805 allows these people to voice their opinions for the
leadership and direction of the communities where their
families live, giving these service personnel a
long-distance voice to vote for councilmembers,
supervisors, initiatives and other measures that will
impact the care, education and services available to the
people they love.
2)Evolving Definition of Military or Overseas Voters : In
addition to changing the terminology used to describe military
and overseas voters who are eligible to use special voting
procedures under existing law, this bill also expands the
universe of people who can be considered military or overseas
voters. Specifically, this bill allows individuals who are
not residents of California to vote in California elections if
one of the following scenarios applies: 1) the person was a
resident of California when he or she was last living within
the territorial limits of the US or the District of Columbia;
2) had he or she been of voting age when he or she was last
living within the territorial limits of the US or the District
of Columbia, he or she would have been a resident of the
AB 1805
Page 8
state; or 3) he or she was born outside the US or the District
of Columbia, however his or her parent or guardian was a
resident of California when last living within the territorial
limits of the US or the District of Columbia, and he or she
has not previously registered to vote in any other state.
It is unclear, however, who is captured under scenario #2 that
is not otherwise covered by this bill. Because the
determination of a person's residency is not dependent on his
or her age, any person covered under scenario #2 should also
be covered by scenario #1. The committee may wish to consider
whether this is necessary to include and ask the author to
share who will be captured under this scenario that are not
already captured in the other scenarios listed above.
In addition, the committee staff recommends a technical
amendment to clarify that the voter is a citizen of the US
living outside of the territorial limits or the District of
Columbia and amend the bill by inserting the word "living"
after the word "States" on line 9 on page 3.
3)Facilitating Voting by Overseas Voters : On October 28, 2009,
President Obama signed into law the Military and Overseas
Voter Empowerment (MOVE) Act to expand the 1986 Uniformed and
Overseas Citizens Absentee Voting Act (UOCAVA), which was
established to protect the rights of service members to vote
in federal elections regardless of where they are stationed.
The MOVE Act builds on UOCAVA to provide greater protections
for service members, their families, and other overseas
citizens.
4)Existing Laws to Facilitate Voting by Overseas and Military
Voters : The provisions of the MOVE Act have been in effect
since the November 2010 election. However, given that
California law already included provisions to facilitate
voting by military members and other California residents who
are outside of the US, the SOS's office and local elections
officials only had to make minimal adjustments to their
practices in order to be in compliance. For example, the MOVE
Act requires states to establish procedures to allow overseas
voters to request voter registration applications and absentee
ballot applications by mail or electronically, and requires at
least one means of electronic communication for voters to
request, and for all states to send, voter registration
applications, absentee ballot applications, and voting
AB 1805
Page 9
information. Current law allows a special absentee voter to
register to vote and apply for VBM ballot by facsimile
transmission and allows elections official to send a VBM
ballot by mail, facsimile, or electronic transmission.
Exceeding the requirement of the MOVE Act, current law allows
a special absentee voter who is temporarily living outside of
the US to return his or her ballot by facsimile transmission.
In addition, the MOVE Act requires states to transmit a
requested absentee ballot to overseas voters not later than 45
days before an election for federal offices. Again,
California law exceeds this requirement by specifically
requiring the county elections official to send the special
absentee ballot with a list of all candidates who have
qualified for the ballot beginning on the 60th day before the
election, along with a list of all measures on which the voter
is qualified to vote.
In addition to being compliant with all provisions in the MOVE
Act, California law also makes other accommodations to
facilitate voting by military voters and other California
residents who are outside of the US. Specifically, current
law provides that an application for a VBM ballot by an
overseas voter is 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. In
addition, California makes 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 election.
5)Use of Federal Write-In Absentee Ballots : One component of the
UMOVA that will help facilitate participation by military and
overseas voters is expanding the use of the FWAB by allowing
it to be used by military or overseas voters in non-federal
elections. Currently, the FWAB is only available for federal
elections, and it is typically used as a back-up option when
voters do not or cannot receive a regular ballot in time to
vote. The new requirement in this bill to allow the FWAB to
be used at statewide and local elections will enfranchise more
military and overseas voters giving them the ability to have
their voices heard in matters concerning their communities.
In addition, this bill establishes a mechanism for US citizens
who have never lived in the US to vote in elections. This
AB 1805
Page 10
will encourage more participation from US citizens who are
abroad due to circumstances or situations that may have been
out of their control, including children who moved away from
the US before they reached voting age.
6)Logistics : As stated above, California already has enacted
many of the provisions of UMOVA, so compliance with many
requirements should not be cause for concern. However, this
measure does require a variety of new procedures and duties
for county elections officials.
For example, this bill requires the elections officials to send
a VBM ballot to qualified military and overseas voters using
the means of transmission requested by the voter. This may be
problematic for some counties that do not have all the ballot
transmission capabilities envisioned by this bill.
In addition, this bill requires elections officials to accept
VBM applications, as specified by this bill, until seven days
before the date of an election. Will elections officials be
able to get the ballot out to those voters in time for the
voter to complete and return a ballot? Electronic
transmission of materials could help to some degree, but not
all counties offer the same options of electronic transmission
of ballots and other election materials.
The bill also requires county elections officials to have
available a system that would allow a military or overseas
voter to electronically request and receive a VBM application,
an unvoted ballot, and other information prescribed by this
bill. Again this could be problematic if some counties do not
have the capability to electronically transmit ballots and
other election materials.
7)Inconsistent Resident Requirement : The bill as currently
written provides a military or overseas voter, as defined, the
right to register for and vote by a VBM ballot in any election
within the state, including any election for federal office,
state office and state ballot measures, and any election for
local government office or ballot measure held in the precinct
in which the military or overseas voter was a resident when
last living within the territorial limits of the US or the
District of Columbia, or in which his or her parent or legal
guardian resided when the parent or legal guardian last lived
within the territorial limits US or the District of Columbia.
AB 1805
Page 11
A strict read of this section of the bill only permits a
military or overseas voter to legally vote for a local office
or ballot measure if the voter or the voter's parent or legal
guardian last resided within that jurisdiction. However the
bill does not apply the same requirement for federal and state
elections, thereby theoretically allowing a military or
overseas voter to vote in any election for congressional or
state legislative office regardless of whether or not the
voter or the voter's parent or legal guardian last resided
within that jurisdiction. According to the author, is it not
the intent of the bill to allow military and overseas voters
to vote in elections for which they are not legally qualified
to vote. To clarify this provision, the committee staff
recommends that the bill be amended as follows:
3102. (a) Any voter who qualifies as a military or
overseas voter pursuant to subdivision (b) of Section 300
shall have the right to register for, and to vote by a vote
by mail ballot, in any election within the state, including
any general, special, or primary election for any federal
office, statewide or state legislative office, and state
ballot measure that is voted on statewide . Any voter who
qualifies as a military or overseas voter pursuant to
subdivision (b) of Section 300 shall also have the right to
register for, and to vote by a vote by mail ballot in, any
other election for any office or ballot measure a local
election for a local government office or local ballot
measure, held in the precinct in which he or she was a
resident when he or she was last living within the
territorial limits of the United States or the District of
Columbia, or, for a military or overseas voter qualified
pursuant to paragraph (3) of subdivision (b) of Section
321, in any precinct of the state in which his or her
parent or legal guardian last lived within the territorial
limits of the United States or the District of Columbia.
8)Suggested Technical Amendments : The bill provides that a
military or overseas voter's ballot that is cast and submitted
for mailing pursuant to this bill be counted if it is received
by the close of business on election day. This provision sets
a new standard for accepting military and overseas ballots,
one that is inconsistent with other provisions of this bill.
According to the author, it is not the intent to set a new
standard for receiving military and overseas ballots. To
clarify this provision, the committee staff recommends the
AB 1805
Page 12
bill be amended as follows, strike the words "close of
business" on page 13, starting on line 20 and insert "closing
of the polls."
In addition, the bill requires a military or overseas voter's
VBM application to include the political party preference or a
statement that the voter declines to state a political party
preference. In February 2009, the Legislature approved SCA 4
(Maldonado), Res Chapter 2, Statutes of 2009, which was
enacted by the voters as Proposition 14 on the June 2010
statewide primary election ballot. Proposition 14 implemented
a "top two" primary election system in California for most
elective state and federal offices. SB 6 (Maldonado), Chapter
1, Statutes of 2009, made various changes to state statute to
implement the "top two" primary system. Earlier this year, AB
1413 (Fong), Chapter 3, Statutes of 2012, made numerous
technical and substantive changes to state law to provide for
the effective and efficient implementation of the "top two"
system. The committee staff recommends the bill be amended to
conform to current law. The committee staff recommends
striking the word "state" on page 4, line 39, and inserting
the word "disclose."
9)Arguments in Support : According to the Uniform Law
Commission, National Conference of Commissioners on Uniform
State Laws:
The federal Uniformed and Overseas Citizens Absentee Voting
Act of 1985 (UOCAVA) and Military and Overseas Voter
Empowerment Act of 2009 (MOVE), as well as the various
state efforts, have not been wholly effective in overcoming
difficulties that these voters face. And, the federal laws
do not encompass state and local elections. Further,
American elections are conducted at the state and local
levels under procedures that vary dramatically by
jurisdiction, and many are conducted independent of the
federal elections to which UOCAVA and the MOVE Act do
apply. This lack of uniformity, and lack of application of
the federal statutes to state and local elections,
complicates efforts to more fully enfranchise these voters.
10)State Mandates : The 2011-2012 state budget included the
suspension of various state mandates as a mechanism for cost
savings. Included on the list of suspensions were all six
existing elections-related mandates. All the existing
AB 1805
Page 13
elections-related mandates have been proposed for suspension
again by the Governor in his budget for the 2012-2013 fiscal
year. The Committee may wish to consider whether it is
desirable to create new election mandates when current
elections-related mandates are suspended.
11)Previous Legislation : SB 908 (Runner) of 2011 would have
permitted a special absentee voter, as defined, who is
temporarily living outside the US or is called for military
services within the US on or after the final date to make
application for a VBM ballot, to return his or her ballot by
electronic mail, as specified. SB 908 failed passage in this
committee.
AB 2941 (Bates), Chapter 821, Statutes of 2004, permitted
special absentee voters who are temporarily living outside the
US to return their ballots by facsimile transmission. AB 2786
(Salas), Chapter 252, Statutes of 2008, extended the sunset
date on the provisions of AB 2941, and AB 2369 (Block),
Chapter 261, Statutes of 2010, made the provisions of AB 2941
permanent.
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.
12)Double Referral : This bill has been double-referred to the
Assembly Committee on Veterans Affairs.
REGISTERED SUPPORT / OPPOSITION :
Support
California Commission on Uniform State Laws (co-sponsor)
Department of Defense Federal Voter Assistance Program
(co-sponsor)
Uniform Law Commission, National Conference of Commissioners on
Uniform State Laws
United States Army Warrant Officers Association
Veterans of Foreign Wars of the United States, Department of
California
Three individuals
Opposition
AB 1805
Page 14
None on file.
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094