March 15, 2005

AB 43 Committee Analysis

Here is the committee analysis for AB 43, being heard in committee today, which would amend the write-in ballot statute that gave rise to litigation in the San Diego Mayor's race.

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Tom Umberg, Chair
AB 43 (Vargas) - As Introduced: December 6, 2004

SUBJECT : Write-in candidates.

SUMMARY : Requires a write-in vote to be counted if the intent
of the voter is clear, regardless of whether the voter complied
with all voting instructions. Specifically, this bill :

1)Repeals a requirement, currently applicable to voting systems
in which write-in spaces appear directly below the list of
candidates for each office and provide a voting space, that
the voting space next to the write-in space be marked or
slotted in order for the write-in vote to be counted.

2)Provides that any name written upon a ballot for a qualified
write-in candidate, including a reasonable facsimile of the
spelling of a name, shall be counted for the office if the
name of the write-in candidate is written in the manner
described in the voting instructions.

3)Provides that 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 voting instructions have
been literally complied with.

EXISTING LAW provides:

1)For voting systems in which write-in spaces appear directly
below the list of candidates for each 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.

2)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 the
manner described in the voting instructions.

FISCAL EFFECT : Unknown. State-mandated local program;
contains reimbursement direction.

COMMENTS :

1)Purpose of the Bill : According to the author:

AB 43 was drafted in response to the November 2004 San
Diego Mayor's race. Over 5,500 ballots went uncounted
because voters failed to fill in the oval bubble next to
the write-in candidate's name. Subsequently, a lawsuit was
filed to count ballots on which a candidates name is
inscribed upon the appropriate line, even if a
corresponding bubble is not shaded. The presiding judge
rejected the suit, stating "I find that [the] election
code?should be given its plain meaning?That to cast a vote
you have to fill in the oval. Those votes should not be
counted. The challenge fails." The election code must be
modified to protect the will of the voter.

Protecting voters' rights is one of our fundamental duties.
Over 5,500 voters were disenfranchised by a technicality
last election in San Diego. This bill defends the basic
principle of democracy to protect the will of a voter when
casting a vote and will protect voters in future elections
across California.

2)San Diego Mayor's Race : 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 filled-in in order for a write-in vote
to count.

This bill would repeal the requirement that the oval next to a
write-in space be filled-in in order for a write-in vote to be
counted. Instead, this bill provides that a ballot for a
qualified write-in candidate to be counted if the name of the
candidate is written in the manner described in the voting
instructions.

In addition, this bill provides that 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 voting
instructions have been literally complied with. Existing law
already provides that provisions governing absentee and
provisional voting shall be liberally construed in favor of
the voter. In a future case with issues similar to the San
Diego mayor's race, a provision providing for the liberal
construction of write-in voting laws would appear to require
the counting of votes in which the voter wrote-in the name of
a qualified write-in candidate, but did not fill in the oval.

3)Pending Litigation : On December 30, 2004, a lawsuit was filed
on behalf of two Donna Frye supporters arguing that the 5,551
ballots in which a voter wrote-in Frye's name, but did not
darken the oval next to the write-in space, should be counted.
The attorney that filed the lawsuit contended that because
San Diego's city charter does not explicitly require the oval
next to the write-in space to be darkened, the city charter
should take precedence over the state's election law and the
votes should be counted.

On February 2, 2005, a state judge rejected that lawsuit,
stating "I find that Elections Code 15342(a) should be given
its plain meaning. What it means is what is says: To vote, to
cast your vote, you have to fill in the oval." This case has
been appealed, and is currently pending before the 4th
District Court of Appeals in San Diego.

4)Arguments in Support : According to Lieutenant Governor Cruz
Bustamante, "[t]his measure addresses fundamental notions of
democracy, fairness of our electoral process and validity of
the voter's intent. The need to protect these principles was
evident during the recent mayoral race in San Diego, where the
election outcome was determined by a minor technicality. . . .
This overly technical interpretation of the state law
undermines the basic principle of our democracy - that every
vote counts."

5)Arguments in Opposition : The California Association of Clerks
and Election Officials (CACEO) opposes this bill unless it is
amended to apply only in the case of a recount. In opposition
to this bill, CACEO writes:

As a result of the liberal construction clause, this
proposal would require jurisdictions using optical scan
voting systems to visually inspect each side of every
ballot (and for multi-card optical scan voting systems,
each side of every card of every ballot) for potential
write-in votes. This would be extremely costly and
time-consuming. Jurisdictions would not be able to
complete the canvass within the statutory timeframe, and
contests would not be decided for weeks following the
election. Requiring visual inspection of all ballots or
ballot cards would eliminate the advantages of automated
vote count systems.

6)Similar Legislation : SB 1050 (Bowen), pending in the Senate
Rules Committee, provides that that the failure of a voter to
mark the voting space next to the write-in space shall not
preclude a write-in vote from being counted if the intent of
the voter can be determined.

REGISTERED SUPPORT / OPPOSITION :

Support

Ballot Access News
League of Women Voters of California
Lieutenant Governor Cruz M. Bustamante

Opposition

California Association of Clerks and Election Officials

Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094

Posted by Randy Riddle at March 15, 2005 09:15 AM