AB 461

Page 1

Date of Hearing: April 12, 2011

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Paul Fong, Chair

ABPCA Bill Id:AB 461 (Author:Bonilla) – As Amended: Ver: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 recountconducted 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 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 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 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 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
Secretary of State Debra Bowen

Opposition

None on file.

Analysis Prepared by: Maria Garcia / E. & R. / (916) 319-2094