BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          ELECTIONS AND CONSTITUTIONAL AMENDMENTS
                              Senator Ben Allen, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 44          Hearing Date:    6/30/15    
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          |Author:    |Mullin                                               |
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          |Version:   |6/24/15                                              |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Frances Tibon Estoista                               |
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                      Subject:  Elections: statewide recounts 

           DIGEST
           
          Creates a new state-funded recount process, as specified.

           ANALYSIS
           
          Existing law: 

          1) 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.

          2) 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  







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             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 position on a measure it is filed.  Permits a  
             request to specify the order in which the precincts shall be  
             recounted.

          3) 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.

          4) 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.

          5) Requires the recount to commence not more than seven days  
             following the receipt by the elections official of the  
             request for the recount and to continue daily, Saturdays,  
             Sundays, and holidays excepted, for not less than six hours  
             each day until completed.

          6) Provides that if in the election which is to be recounted the  
             votes were recorded by means of a punchcard voting system or  
             by electronic or electromechanical vote tabulating devices,  
             the voter who files the declaration requesting the recount  
             may select whether the recount shall be conducted manually,  
             or by means of the voting system used originally, or both.

          7) Requires the recount to be conducted publicly.

          8) Permits all ballots, whether voted or not, and any other  
             relevant material, to be examined as part of any recount if  
             the voter filing the declaration requesting the recount so  
             requests. 

          9) Required the SOS, within the SOS's existing budget, to adopt  
             regulations no later than January 2008, for each voting  
             system approved for use in the state and specify the  
             procedures for recounting ballots, including VBM and  








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             provisional ballots, using those voting systems.

          This bill:

          1)Permits any voter, within five days after the SOS files a  
            statement of the vote, to request a state-funded manual  
            recount of all votes cast for a statewide office or state  
            ballot measure if any of the following occurs:

             a)   The official canvass of returns in a statewide  primary   
               election shows that the difference in the number of votes  
               received by the second and third place candidates for a  
               statewide office is less than or equal to the lesser of  
               1,000 votes or 0.00015 percent of the number of all votes  
               cast for that office;

             b)   The official canvass of returns in a statewide  general   
               election shows that the difference in the number of votes  
               received by the two candidates receiving the greatest  
               number of votes for a statewide office is less than or  
               equal to the lesser of 1,000 votes or 0.00015 percent of  
               the number of all votes cast for that office; or,

             c)   The official canvass of returns in a statewide election  
               shows that the difference in the number of votes cast for  
               and against a state ballot measure is less than or equal to  
               the lesser of 1,000 votes or 0.00015 percent of the number  
               of all votes cast on the measure.

          2)Prohibits a voter from requesting a state-funded manual  
            recount of all votes cast for the office of Superintendent of  
            Public Instruction unless the official canvass of returns in a  
            statewide primary election shows that the number of votes  
            received by the candidate receiving the greatest number of  
            votes was either of the following:

             a)   Between 0.49085 and 0.50015, inclusive, of the number of  
               all votes cast.

             b)   Within 1,000 votes of 50 percent of the number of all  
               votes cast.

            3)  Defines "statewide office," for the purposes of this bill,  
              to mean the office of Governor, Lieutenant Governor,  








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              Attorney General, Controller, Insurance Commissioner, SOS,  
              Superintendent of Public Instruction, Treasurer, or Member  
              of the United State Senate.


             a)   Permits any voter, within five days after the SOS files  
               a statement of the vote, to request a state-funded manual  
               recount of all votes cast for the office President of the  
               United States if the official canvass of returns in a  
               statewide general election shows that the difference in the  
               number of votes received by the two candidates receiving  
               the greatest number of votes for the office of President is  
               less than or equal to the lesser of 1,000 votes or 0.00015  
               percent of the number of all votes cast for the office of  
               President.

            4)  Prohibits another recount from being conducted if a  
              state-funded recount is conducted pursuant to the provisions  
              of this bill.

            5)  Requires the state to reimburse counties for costs  
              resulting from conducting a manual recount, pursuant to this  
              bill, in an expeditious manner upon the certification of  
              those costs.

            6)  Requires the SOS, upon ordering a recount pursuant to the  
              provisions of this bill, to notify the elections official of  
              each county and direct the county elections official to  
              recount all the votes cast for the office or for and against  
              the state ballot measure.

            7)  Requires a county elections official, while conducting a  
              recount pursuant to the provisions of this bill, to also  
              review ballots rejected in accordance with existing law to  
              ensure that no ballots were improperly discarded during the  
              initial canvass.  Requires the process for reviewing  
              rejected ballots to be open to members of the public,  
              including persons associated with a campaign or measure.

            8)  Requires the elections official in each county to complete  
              a state-funded recount as follows:


             a)   In a primary election, by three business days before the  








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               SOS issues the certified list of candidates for the  
               associated general election; or,


             b)   In a general election, within 60 days of the voter's  
               request for the recount. 

            9)  Permits the SOS to adopt, amend, and repeal rules and  
              regulations necessary for the administration of the  
              provisions of this bill.

            10)          Requires the elections official to store sealed  
              ballots in a manner facilitating the      retrieval of any  
              particular ballot in the event of a recount.

           11) Requires the SOS, no later than January 1, 2018, to revise  
             and adopt regulations specifying procedures for recounting  
             ballots, including regulations establishing guidelines for  
             charges a county elections official may impose when  
             conducting a manual recount.

           12) Changes the starting day on which a recount may be  
             requested for a recount that is conducted in more than one  
             county from the 29th day after the election to the 31st day  
             after the election.

           13) Requires a county elections official, if more than one  
             voter requests a recount for the same office, slate of  
             presidential electors, or measure, and at least one request  
             is for a manual recount, to conduct only one manual recount  
             of the ballots subject to recount, the result of which shall  
             be controlling. 

           14)         Repeals provisions of law that permitted a voter  
             who files a declaration requesting a recount to select  
             whether the recount is conducted manually, or by means of the  
             voting system used originally,  or both  , and instead requires  
             if the votes subject to recount were cast or tabulated by a  
             voting system, the voter requesting the recount shall, for  
             each set of ballots cast or tabulated by a type of voting  
             system to only select whether the recount is conducted  
             manually, or by means of the voting system used originally.   
             Only one method of recount may be used for all ballots cast  
             or tabulated by the same type of voting system.








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           15)         Provides that if an office, slate of presidential  
             electors, or measure are voted on statewide, the results of  
             any recount will be declared  null and void if each vote cast  
             statewide for the office, slates, or measure is not  
             recounted.

           16)         Contains a January 1, 2023 sunset date for the  
             state-funded manual recount provisions of this bill.

           17)         Prohibits the SOS from certifying or conditionally  
             approving a voting system that cannot facilitate the conduct  
             of a ballot level comparison risk-limiting audit.

           18)         Defines a voting system that is "noncompliant" as a  
             voting system that cannot facilitate the conduct of a ballot  
             level comparison risk-limiting audit.

           19)         Allows the SOS, until January 1, 2021 to approve a  
             proposed change or modification to a noncompliant voting  
             system even if the voting system will remain noncompliant  
             after the change or modification.

           20)         Makes other technical and corresponding changes. 

           BACKGROUND
           
          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 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.

           COMMENTS
                                           
            1) According to the author  , In the June 2014 primary, former  








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             Assembly Speaker John Perez trailed Board of Equalization  
             Member Betty Yee by only 481 votes out of roughly four  
             million.  This very narrow margin prompted him to request a  
             recount, which current law permits.  When he did so, deep  
             flaws in California's existing recount process were revealed:  
              it allows statewide results to be overturned by a partial  
             recount and it favors candidates who can afford to pay.

           Current law allows candidates to specify the counties they want  
             to recount, and if they make up the vote difference in those  
             counties, the entire outcome of the election changes.  In  
             response, their opponent can take a turn in selecting  
             counties in an effort to recover the lost votes.  This  
             inefficient back and forth could continue until every vote is  
             counted or until a candidate runs out of money.  It raises  
             the question of fairness:  Should the person with the deepest  
             pockets be able to "out-recount" his opponent?

           The obvious answer is "no."  In statewide elections, where  
             millions of ballots are cast, the state should be responsible  
             for ensuring the accuracy of the vote, not a candidate or  
             voter.  Above all, our system of governance demands that the  
             election process is fair and transparent for all voters and  
             candidates.

           AB 44 creates a more equitable elections process by authorizing  
             a state-funded option for recounts, available at or below a  
             threshold of 1,000 votes or 0.00015 percent, whichever is  
             smaller.  When this option is utilized, the state will fund a  
             full hand recount of all ballots cast, while also  
             re-examining any rejected ballots.  When the state-funded  
             threshold is not met, the bill permits candidates to fund  
             their own statewide recounts, reimbursing them if the  
             original results are overturned.  Ensuring accurate election  
             outcomes should be a priority for the state, and by creating  
             a state-funded option for very close contests, AB 44  
             accomplishes this important goal.

            2) Changes to the Current Recount Process  :  This bill not only  
             creates a state-funded manual recount process it also makes  
             changes to the current recount process.  For instance, this  
             bill repeals provisions of law that permit a voter who files  
             a declaration requesting a recount to select whether the  
             recount is conducted manually, or by the voting system used  








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             originally, or both, and instead requires a voter requesting  
             a recount to only select whether the recount is conducted  
             manually, or by the voting system used originally.  In other  
             words, this bill requires a recount to be conducted in one  
             manner throughout each jurisdiction.

           In addition, this bill makes changes to how recount costs are  
             calculated.  While the SOS has adopted regulations that  
             specify procedures for recounting ballots, current  
             regulations do not provide detailed guidance for the charges  
             a county elections official may impose when conducting a  
             recount.  The regulations require an elections official to  
             estimate the costs necessary to produce relevant material and  
             require the requestor to pay an advance deposit of the  
             estimated amount at least one day prior to the materials  
             being produced.  Regulations define "relevant materials" to  
             include, but not be limited to, unvoted ballots, VBM and  
             provisional ballot envelopes, voting system redundant vote  
             data, ballot definition files, language translation files and  
             the central database or other electronic repository of  
             results for the election in which the contest subject to  
             recount occurred, election data media devices, audit logs,  
             system logs, pre-and post-election logic and accuracy testing  
             plans and results, polling place event logs, precinct tally  
             results, central count tally results and consolidated results  
             in a structured non-proprietary format, surveillance video  
             recordings and chain of custody logs, including logs of  
             security seals and access to election-related storage areas.   
             In addition to the relevant materials produced, actual  
             recount costs may also include additional supervision hours,  
             security guard hours, the elections official's staff hours,  
             space rental, transportation of ballots, and materials and  
             administrative costs.  

           While there is no standardized pricing for a recount, not all  
             recounts are the same.  As mentioned above the requestor has  
             the ability to request a recount to be conducted manually, by  
             the voting system used,  or both  .  In addition, a recount may  
             or may not include the examination of all ballots, including  
             those ballots that were rejected.  All of these variables and  
             others also contribute to the cost of a recount.  A search  
             done by the Assembly Elections & Redistricting Committee  
             staff found that in Los Angeles County the cost of one  
             recount board is $5,054.71 per day, in Orange County the fee  








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             for a four-member counting board is $600.00 per day, and in  
             Santa Cruz County the cost for one recount board and  
             supervisor pay is $1,008 per day.  

           While many factors contribute to the cost of a recount, the  
             significant cost variations may warrant more review and  
             detailed guidance.  In an effort to address this issue, this  
             bill requires the SOS, not later than January 1, 2018, to  
             revise and adopt regulations establishing uniform guidelines  
             for charges a county elections official may impose when  
             conducting a manual recount.  

           Furthermore, as mentioned above in the author's statement,  
             existing law does not require all of the ballots cast in the  
             entire state to be recounted in order to change the result in  
             a statewide contest.  Existing law only requires that all the  
             ballots in each county included in a recount request be  
             recounted in order to change the result.  This means that if  
             the ballots recounted in the counties listed in the voter's  
             request make up the vote difference in those counties, then  
             the entire outcome of the election contest may change.  In  
             addition, existing law permits any other voter to request a  
             recount as long as he or she selects different counties that  
             were not originally included in the previous request.  This  
             back and forth could continue until every vote is counted or  
             until a candidate runs out of money.  In an effort to try to  
             address this issue, this bill requires a recount for a  
             statewide office or measure to be null and void unless each  
             vote cast for the statewide office or measure is recounted.

           Finally, current law permits any other voter to request a  
             recount of any precincts in an election for the same office,  
             slate of presidential electors, or measure that were not  
             included in the original recount request.  According to  
             county elections officials, current law does not clarify what  
             would happen should another voter request the same precincts  
             as the original recount request, but request for that recount  
             to be conducted in a different manner.  This bill will  
             address this situation and make certain that should multiple  
             requests be made to recount the same precincts, but differ in  
             method, that the request for the precincts to be manually  
             recounted will prevail.  Specifically, this bill requires a  
             county elections official, if more than one voter requests a  
             recount for the same office, slate of presidential electors,  








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             or measure, and at least one request is for a manual recount,  
             to conduct only one manual recount of the ballots subject to  
             the recount, the result of which shall be controlling.

                               RELATED/PRIOR LEGISLATION
           
          AB 2194 (Mullin of 2014) would have required the SOS to order an  
          automatic manual recount of all votes cast for a statewide  
          office or state ballot measure if the difference in the number  
          of votes received is less than or equal to 0.1%.  AB 2194 failed  
          to receive the 2/3's vote required for rule suspensions in order  
          to be heard after the policy committee hearing deadline.

           PRIOR ACTION
           
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          |Assembly Floor:                       |74 - 4                     |
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          |Assembly Appropriations Committee:    |17 - 0                     |
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          |Assembly Elections and Redistricting  |  6 - 0                    |
          |Committee:                            |                           |
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          POSITIONS
           
          Sponsor: Author

           Support: California Association of Clerks and Election  
                   Officials
                    FairVote
                    Los Angeles County Democratic Party
                    Santa Clara Board of Supervisors
                    VerifiedVoting.org
                    Voting Rights Task Force
                    Wellstone Democratic Renewal Club

           Oppose:  None received
                                          
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