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 ----------------------------------------------------------------- |Author: |Mullin | |-----------+-----------------------------------------------------| |Version: |6/24/15 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Frances Tibon Estoista | | | | ----------------------------------------------------------------- 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 AB 44 (Mullin) Page 2 of ? 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 AB 44 (Mullin) Page 3 of ? 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, AB 44 (Mullin) Page 4 of ? 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 AB 44 (Mullin) Page 5 of ? 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. AB 44 (Mullin) Page 6 of ? 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 AB 44 (Mullin) Page 7 of ? 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 AB 44 (Mullin) Page 8 of ? 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 AB 44 (Mullin) Page 9 of ? 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, AB 44 (Mullin) Page 10 of ? 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 ------------------------------------------------------------------ |Assembly Floor: |74 - 4 | |--------------------------------------+---------------------------| |Assembly Appropriations Committee: |17 - 0 | |--------------------------------------+---------------------------| |Assembly Elections and Redistricting | 6 - 0 | |Committee: | | ------------------------------------------------------------------ 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 -- END -- AB 44 (Mullin) Page 11 of ?