BILL ANALYSIS �
AB 2369
Page 1
Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2369 (Hagman) - As Introduced: February 21, 2014
SUBJECT : Elections: voter-requested recounts.
SUMMARY : Modifies provisions of law that govern who can pay
for a recount. Specifically, this bill , requires a voter or the
candidate-controlled campaign committee represented by the voter
that files a request seeking a recount to deposit money to pay
for the recount from the voter's own personal funds or from
funds of the candidate-controlled campaign committee of the
candidate on whose behalf the recount is being requested.
EXISTING LAW :
1)Defines "voter" to mean an elector who is registered pursuant
to current law.
2)Allows any voter, within five days following the completion of
the official canvass and following the completion of any
postcanvass risk-limiting audit conducted pursuant to existing
law, to request in writing that the elections official
responsible for conducting an election commence a recount of
the votes cast for candidates for any office or for or against
any measure, provided the office or measure is not voted on
statewide. Allows a recount for an election that is conducted
in more than one county to be conducted in any or all of the
affected counties.
3)Allows any voter, following the completion of the official
canvass and within five days beginning on the 29th day after a
statewide election, to file with the Secretary of State (SOS)
a written request for a recount of the votes cast for
candidates for any statewide office or for or against any
measure voted on statewide. Allows any voter, within five
days following the completion of any postcanvass risk-limiting
audit conducted pursuant to existing law, to file with the SOS
a written request for a recount of the votes cast for
candidates for any statewide office or for or against any
measure voted on statewide. Requires a request filed to
specify in which county or counties the recount is sought and
specify on behalf of which candidate, slate of electors, or
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position on a measure it is filed.
4)Permits any other voter, at any time during the conduct of a
recount and for 24 hours thereafter, to request the recount of
any precincts in an election for the same office, slate of
presidential electors, or measure not recounted as a result of
the original request.
5)Requires a voter seeking the recount, before the recount is
commenced and at the beginning of each subsequent day, to
deposit with the elections official the amount of money
required by the elections official to cover the cost of the
recount for that day.
FISCAL EFFECT : Keyed non-fiscal by Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
While current law requires the voter requesting the recount
to deposit the funds required, the law is unclear from
where those funds are allowed to come. AB 2369 clarifies
existing law by explicitly stating that funds for the
recount have to be provided by the voter's personal funds
or funds from the voter's controlled campaign committee.
This bill won't stop outside sources from being able to
contribute [to] a recount effort, but ensures transparency
and accountability within the recount process, as voters
can easily track campaign contributions. However, AB 2369
will prevent direct 3rd party contributions towards an
election recount. It is vital that we provide clarity
under current law to bring transparency to election
recounts. Voters deserve to know not only who requests a
recount, but also how it is being funded.
2)Restrictions on Who Pays for a Recount : Existing law permits
any registered voter to request a recount within five days
following the completion of the official canvass. The voter
requesting the recount must specify on behalf of which
candidate, slate of electors, or position on a measure it is
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filed. Additionally, at any time during the conduct of a
recount and for 24 hours thereafter, current law allows any
voter other than the original requestor to request a recount
of additional precincts. The voter filing the request for the
recount is required to deposit, before the recount commences
and at the beginning of each day following, sums as required
by the elections official to cover the cost of the recount for
that day. If upon completion of the recount, the results are
reversed, the deposit shall be returned.
This bill restricts who may pay for a recount. Specifically,
this bill requires a voter that requests a recount to pay for
the recount from his or her own personal funds and requires a
candidate controlled campaign committee that requests a
recount to use funds from the candidate-controlled campaign
committee of the candidate on whose behalf the recount is
being requested to pay for the recount. According to the
author, the law is unclear and there is confusion on where
funds are actually allowed to come from to pay for the recount
and voters deserve to know not only who requests a recount but
also how it is being funded.
The practical effect of this bill is that a recount can only be
requested if it is paid for by a voter who uses his or her own
personal funds or a candidate who uses his or her candidate
campaign committee funds. This bill excludes other entities,
such as a local political party, a ballot measure campaign
committee, or a passionate advocacy organization interested
and invested in the outcome of a particular candidate or a
ballot measure, from being able to request a recount because
the bill does not permit these entities to directly pay for
the recount.
It is possible that entities other than a candidate's campaign
committee may be interested and invested in pursuing a recount
to hopefully change the outcome of an election. One of the
only ways in which another entity could plausibly request and
pay for a recount would be if a candidate had a desire to
request a recount and agreed to pay for it using funds from
the candidate controlled campaign committee and the outside
entity contributed to the candidate's controlled campaign
committee to pay for the recount. The only other plausible
alternative available to an outside entity would be if the
entity was able to convince an individual voter to request a
recount on his or her behalf and then paid for it with his or
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her own personal funds.
In 1978, the Legislature passed and the Governor signed AB 3313
(Keysor), Chapter 847, Statutes of 1978, which made
significant changes to recount processes and procedures.
Specifically, AB 3313 allowed any voter to request and pay for
a recount, instead of only allowing a candidate for office, an
authorized representative of a candidate for office, or an
authorized representative of a ballot measure to request and
pay for a recount. According to bill documents obtained at
the California Archives, the policy change to broaden who can
request and pay for a recount was necessary because of the
difficulty of identifying who is an "authorized
representative" or should be entitled to request a recount,
especially for ballot measures. According to the bill
analysis, while it might be sufficient to provide that
recounts could be only requested by the candidates themselves
or by their representative, it is not the case for ballot
measures. Furthermore, school and special district recounts
avoided this problem by allowing "any voter" to seek a
recount. Finally, the bill analysis states that it is
unlikely that there will be a proliferation of recount
requests since the person seeking the recount will have to pay
the cost. It is clear that the Legislature made a conscious
effort to change public policy and broaden who is allowed
request and pay for a recount. This bill, which restricts who
is able to pay for and request a recount, takes a step back
and reverts public policy back to 1977.
3)Increased Transparency ? According to the author's statement,
while this bill won't stop outside sources from being able to
contribute to a recount effort, it will however, ensure
transparency and accountability within the recount process and
provide clarity in the law as to who is able to pay for the
cost of a recount and reveal how a recount is being funded.
While the author's goal is laudable, the committee may wish to
consider whether this bill truly provides sunshine on who is
paying for a recount. This bill, which requires a voter that
requests a recount to pay for the recount from his or her own
personal funds may not truly reveal where those funds are
coming from. A business or organization could contribute
money to the person requesting the recount and the voter
requesting the recount can then submit cash, a cashier's
check, or a money order to cover the costs of the recount.
So, while it may seem as though the recount is being paid by
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the personal funds of the voter, it is not entirely certain
that is the case.
Furthermore, if a candidate pays for a recount, it is already
required it to be disclosed and reported under the Political
Reform Act (PRA). Additionally, if a recount is paid for by
third party in coordination with or at the request of a
candidate it is already considered a reportable in-kind
contribution under the PRA. Consequently, it is unclear how
this bill will result in more transparency when current law
already provides for disclosure.
4)Political Reform Act and Enforcement : In 1974, California
voters passed an initiative, Proposition 9 that created the
Fair Political Practices Commission (FPPC) and codified
significant restrictions and prohibitions on candidates,
officeholders, and lobbyists. That initiative is commonly
known as the PRA. The FPPC is responsible for enforcing state
laws governing political campaigns, fundraising, lobbying, and
conflicts of interest for elected officials. This bill, which
requires a candidate controlled campaign committee to use
funds from the candidate controlled campaign committee to pay
for the recount, takes an aspect of the PRA and places it in
the Elections Code. As a result, the FPPC would not be
required to enforce these provisions of this bill and it is
unclear who would enforce the requirements in this bill.
Would the enforcement of this bill fall into the hands of the
elections official?
5)Other States : Each state has specific laws for conducting
recounts. A recount can be initiated either automatically or
by an individual or group of individuals. Some states require
an automatic recount when the margin of victory falls within a
predetermined percentage, such as 0.5 or one percent.
According to a 2010 Election Assistance Commission's (EAC)
draft Recounts and Contests Study, approximately 21 states and
the District of Columbia have automatic recounts in some
elections (California does not). Automatic recounts usually
require the state to pay for the recount costs. The second
type of recount is an initiated recount. Some states allow
for candidate-initiated recounts that allow candidates to
petition for a recount within a specified time period after
certification of election results. According to the EAC draft
study, 39 states and the District of Columbia have statutes or
regulations authorizing candidate-initiated recounts.
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Additionally, there are citizen-initiated recounts allowed in
27 states and the District of Columbia, whereby a citizen may
petition for a recount. It's common for the citizen who
requested the recount to pay for the recount. As mentioned
above, California law allows for any voter to request a
recount.
In addition, election recount laws vary greatly across states.
According to EAC's draft study, "there are no common practices
across states associated with what an entity pays for the cost
of a recount. For automatic recounts, it is usually the state
or government that pays for the recount. For initiated
recounts, there are many different ways states cover the costs
of recounts." For instance, according to the report, 27
states have laws that require a petitioner to pay the actual
costs of the recount, one state requires petitioners to pay a
pre-determined estimated cost, and 17 states have a fixed fee
as determined by their state laws. Additionally, two states
give the court or government direction in assessing the costs
of a recount, and in one state, the law is not clear regarding
how the actual cost of the recount is determined. Finally, in
some states, the outcome of the initiated recount can affect
the payment requirement, such as when the petitioner is
declared the winner, he or she often does not have to pay for
the recount. California statute requires the voter that
requested the recount to pay for the recount. If upon
completion of the recount, the results are reversed, the
payment is returned to the requestor.
As mentioned above, this bill requires a voter that requests a
recount to pay for the recount from his or her own personal
funds and requires a candidate controlled campaign committee
that requests a recount to use funds from the
candidate-controlled campaign committee. The author argues
that other states clarify that the voter or candidate
requesting the recount must pay for it at their own expense.
The author's office provided the committee with two examples
of states that make this clarification - Minnesota and
Colorado. Minnesota requires a candidate to request a full or
partial recount at his or her own expense. However, Minnesota
state law allows for statewide automatic recounts.
Specifically, if the margin between the two top candidates
falls within one-half of one percent, an automatic hand
recount is required. Moreover, in the instance that an
automatic hand count is required, the taxpayers pay for the
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recount. However, if the vote margin is greater than the
one-half of one percent, then Minnesota state law permits a
candidate to request a full or partial recount, but it is at
his or her own expense. Moreover, Colorado state law also
provides for automatic recounts and states that a recount of
any election contest shall be held if the difference between
the highest number of votes cast in that election contest and
the next highest number of votes cast in that election contest
is less than or equal to one-half of one percent of the
highest vote cast in that election contest. Additionally,
whenever a recount is not required, Colorado state law allows
an interested party to submit a notarized written request for
a recount at the expense of the interested party making the
request. Under Colorado law, the term "interested party" is
limited to the candidate who lost the election, the political
party or political organization of such candidate, any
petition representative for a ballot issue or ballot question
that did not pass at the election, or the governing body that
referred a ballot question or ballot issue to the electorate
if such ballot question or ballot issue did not pass at the
election.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094