Existing law requires an elections official to provide a 2nd vote by mail voter ballot to any voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot.

This bill would remove the requirement that the voter provide a statement under penalty of perjury, and instead require the elections official to provide a replacement ballot upon request. The bill would require the voter making the request to provide the elections official with specified personal identifying information. The bill would also require the elections official, prior to issuing the replacement ballot, to advise the requester that a request for a replacement ballot made by a person other than the registered voter is a criminal offense. By imposing new duties on local elections officials, the bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires an elections official to provide a 2nd vote by mail voter ballot to any voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot.

This bill would remove the requirement that the voter provide a statement under penalty of perjury, and instead require the elections official to provide a replacement ballot upon request. The bill would require the voter making the request to provide the elections official with specified personal identifying information. The bill would also require the elections official, prior to issuing the replacement ballot, to advise the requester that a request for a replacement ballot made by a person other than the registered voter is a criminal offense. By imposing new duties on local elections officials, the bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires an elections official to provide a 2nd vote by mail voter ballot to any voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot.

This bill would remove the requirement that the voter provide a statement under penalty of perjury, and instead require the elections official to provide a replacement ballot upon request. The bill would require the voter making the request to provide the elections official with specified personal identifying information. The bill would also require the elections official, prior to issuing the replacement ballot, to advise the requester that a request for a replacement ballot made by a person other than the registered voter is a criminal offense. By imposing new duties on local elections officials, the bill would create a state-mandated local program.

Existing law requires an elections official to provide a 2nd vote by mail voter ballot to any voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot.

This bill would remove the requirement that the voter provide a statement under penalty of perjury, and instead require the elections official to provide a replacement ballot upon request.

 THIRD READING  

Bill No: AB 398

Author: Pellerin (D)

Amended: 3/16/23 in Assembly

Vote: 21

SENATE ELECTIONS & C.A. COMMITTEE: 6-1, 6/6/23

AYES: Glazer, Allen, McGuire, Menjivar, Newman, Umberg

NOES: Nguyen

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 60-14, 4/20/23 - See last page for vote

SUBJECT: Voting: replacement ballots

SOURCE: California Association of Clerks and Election Officials

DIGEST:

This bill allows an elections official to provide a replacement vote by mail (VBM) ballot to a voter without the need for the voter to provide a specified statement under penalty of perjury.

ANALYSIS:

Existing law:

1. Requires an elections official to mail a ballot to every active registered voter for every election in which the voter is eligible to participate. Requires the elections official to begin mailing VBM ballots no later than 29 days before the election, as specified.
2. Requires an elections official to provide a second VBM ballot to any voter upon receipt of a statement under penalty of perjury that the voter failed to receive, lost, or destroyed their original ballot.
3. Requires an elections official to provide a second VBM ballot to the voter’s representative upon receipt of a written request, on a form prescribed by the Secretary of State (SOS), signed by the voter under penalty of perjury, requesting that a ballot be provided to the voter’s representative, as specified.
4. Requires an elections official to keep a record of each VBM ballot sent to and received from a voter and to verify, prior to counting any duplicate ballot, that the voter has not attempted to vote twice.
5. Permits a voter who has declined to disclose a political party preference to request the ballot of a political party that has authorized a voter who has declined to disclose a political party preference to vote in its partisan primary election, as specified. Permits the voter to make that request through various means, including by telephone or by an application over the internet, if available.

This bill:

1. Eliminates a requirement that a voter provide a statement under penalty of perjury that the voter failed to receive, lost, or destroyed their original VBM ballot before the elections official provides the voter with a replacement VBM ballot, and instead requires the elections official to provide a replacement ballot to any voter upon request if both of the following requirements are met:
   1. The voter provides to the elections official personal identifying information that matches the information contained on the voter’s affidavit of registration, including their first and last name, residence address, and date of birth.
   2. The elections official advises the requester, prior to issuing a replacement ballot, of the following: “Only the registered voter themself may request a replacement ballot. A request for a replacement ballot that is made by any person other than the registered voter is a criminal offense.”
2. Changes the terminology used to describe the ballot that is issued to a voter after the issuance of the original VBM ballot for that voter from a “second vote by mail ballot” to a “replacement ballot.”
3. Makes technical and conforming changes.

Background

Voting by Mail. California voters have increasingly utilized VBM ballots when voting in elections. In the 2022 general election, of 11,146,610 ballots cast, 9,755,188 were VBM ballots. This represents 87.52% of the votes cast in November 2022. When comparing the past two gubernatorial general elections (2018 and 2022), there were approximately 1.45 million more VBM ballots in November 2022 than in November 2018. According to data from the SOS, below are statistics of VBM voters and how that compares to the total number of voters.

*VBM voters consists only of voted and counted VBM ballots.

**Total voters consists only of voters who cast a ballot in the election.

It should be noted that the 2021 gubernatorial recall election was a special statewide election and not a general election. However, in the gubernatorial recall election, of the 12,892,578 voters who voted, 11,733,429 voters submitted their VBM ballot. This represents 91.01% of voters who participated in the election.

VBM Ballot Applications, Replacement Ballots, and Previous Legislation. Last year, the Legislature approved and Governor Newsom signed AB 2608 (Berman, Chapter 161, Statutes of 2022) which made various conforming changes to reflect state law requiring that every active registered voter be mailed a ballot for every election in which the voter is eligible to vote. Among other provisions, AB 2608 repealed provisions of law related to applications for VBM ballots (including laws that that allowed elections officials to offer voters the ability to apply for VBM ballots electronically or by telephone) and consolidated provisions of law that govern the issuance of a second VBM ballot to a voter.

On September 29, 2022, the SOS issued a memorandum to county elections officials to address the changes made by AB 2608 and the procedures for requesting a replacement ballot. That memorandum recognized that AB 2608 repealed the law that allowed voters to apply for a VBM ballot by telephone, and noted that “[u]nder amended Elections Code section 3014, a second [VBM] ballot shall be provided to a ‘voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot.’” The memorandum went on to note that because Section 3014 of the Elections Code requires a statement to be made under penalty of perjury, “our office is of the opinion that this request for a replacement ballot cannot be made telephonically.”

By repealing the requirement that a voter must provide a specified statement under penalty of perjury before the elections official can provide the voter with a replacement VBM ballot, and instead requiring the elections official to provide a replacement ballot to a voter upon request, this bill allows elections officials to issue replacement ballots over the phone or through other means without the need for a written request that is signed by the voter.

It should be noted that nothing in this bill allows an elections official to issue a replacement ballot to a person other than the voter themself without a written request from the voter. Existing law requires a voter to submit a written request, on a form prescribed by the SOS, signed by the voter under penalty of perjury, if the voter wants a replacement ballot to be delivered to the voter’s representative. This bill does not change that requirement.

Comments

According to the author, during election season, there are many demands on the time and resources of elections workers. AB 398 simplifies the replacement ballot request system without compromising the integrity of elections as it relates to double votes. Removing the need to process physical replacement ballot requests will reduce both the workload of elections officials and speed up the process for voters.

Substituting “replacement ballot” for “second vote-by-mail ballot” in the Elections Code improves the specificity of the language and removes doubts as to the nature of these ballots.

Related/Prior Legislation

AB 626 (Pellerin, 2023) allows a voter to return their VBM ballot to an in-person voting location, without placing the ballot into a ballot identification envelope, if the ballot is returned to a vote center, as specified.

AB 2608 (Berman, Chapter 161, Statutes of 2022), among other provisions, repealed provisions of law related to applications for VBM ballots, including laws that that allowed elections officials to offer voters the ability to apply for VBM ballots electronically or by telephone, and consolidated provisions of law that govern the issuance of a second VBM ballot to a voter.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 6/27/23)

California Association of Clerks and Election Officials (source)

American Association of University Women California

American Association of University Women of San Jose

California Common Cause

California Environmental Voters

City Clerks Association of California

Disability Rights California

League of Women Voters of California

OPPOSITION: (Verified 6/27/23)

None received

ASSEMBLY FLOOR: 60-14, 4/20/23

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner Horvath, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Dixon, Mike Fong, Friedman, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Alanis, Chen, Megan Dahle, Davies, Essayli, Vince Fong, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron

NO VOTE RECORDED: Flora, Gabriel, Gallagher, Garcia, McCarty, Wallis

Prepared by: Scott Matsumoto / E. & C.A. / (916) 651-4106

6/28/23 10:43:24

**** END ****

SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Steven Glazer, Chair

2023 - 2024 Regular

Bill No: AB Hearing Date: 6/6/23

Subject: Voting: replacement ballots

DIGEST

This bill allows an elections official to provide a replacement vote by mail (VBM) ballot to a voter without the need for the voter to provide a specified statement under penalty of perjury.

ANALYSIS

Existing law:

1. Requires an elections official to mail a ballot to every active registered voter for every election in which the voter is eligible to participate. Requires the elections official to begin mailing VBM ballots no later than 29 days before the election, as specified.
2. Requires an elections official to provide a second VBM ballot to any voter upon receipt of a statement under penalty of perjury that the voter failed to receive, lost, or destroyed their original ballot.
3. Requires an elections official to provide a second VBM ballot to the voter’s representative upon receipt of a written request, on a form prescribed by the Secretary of State (SOS), signed by the voter under penalty of perjury, requesting that a ballot be provided to the voter’s representative, as specified.
4. Requires an elections official to keep a record of each VBM ballot sent to and received from a voter and to verify, prior to counting any duplicate ballot, that the voter has not attempted to vote twice.
5. Permits a voter who has declined to disclose a political party preference to request the ballot of a political party that has authorized a voter who has declined to disclose a political party preference to vote in its partisan primary election, as specified. Permits the voter to make that request through various means, including by telephone or by an application over the internet, if available.

This bill:

1. Eliminates a requirement that a voter provide a statement under penalty of perjury that the voter failed to receive, lost, or destroyed their original VBM ballot before the elections official provides the voter with a replacement VBM ballot, and instead requires the elections official to provide a replacement ballot to any voter upon request if both of the following requirements are met:
   1. The voter provides to the elections official personal identifying information that matches the information contained on the voter’s affidavit of registration, including their first and last name, residence address, and date of birth.
   2. The elections official advises the requester, prior to issuing a replacement ballot, of the following: “Only the registered voter themself may request a replacement ballot. A request for a replacement ballot that is made by any person other than the registered voter is a criminal offense.”
2. Changes the terminology used to describe the ballot that is issued to a voter after the issuance of the original VBM ballot for that voter from a “second vote by mail ballot” to a “replacement ballot.”
3. Makes technical and conforming changes.

BACKGROUND

Voting by Mail. California voters have increasingly utilized VBM ballots when voting in elections. In the 2022 general election, of 11,146,610 ballots cast, 9,755,188 were VBM ballots. This represents 87.52% of the votes cast in November 2022. When comparing the past two gubernatorial general elections (2018 and 2022), there were approximately 1.45 million more VBM ballots in November 2022 than in November 2018. According to data from the SOS, below are statistics of VBM voters and how that compares to the total number of voters.

*VBM voters consists only of voted and counted VBM ballots.

**Total voters consists only of voters who cast a ballot in the election.

It should be noted that the 2021 gubernatorial recall election was a special statewide election and not a general election. However, in the gubernatorial recall election, of the 12,892,578 voters who voted, 11,733,429 voters submitted their VBM ballot. This represents 91.01% of voters who participated in the election.

VBM Ballot Applications, Replacement Ballots, and Previous Legislation. Last year, the Legislature approved and Governor Newsom signed AB 2608 (Berman), Chapter 161, Statutes of 2022, which made various conforming changes to reflect state law requiring that every active registered voter be mailed a ballot for every election in which the voter is eligible to vote. Among other provisions, AB 2608 repealed provisions of law related to applications for VBM ballots (including laws that that allowed elections officials to offer voters the ability to apply for VBM ballots electronically or by telephone) and consolidated provisions of law that govern the issuance of a second VBM ballot to a voter.

On September 29, 2022, the SOS issued a memorandum to county elections officials to address the changes made by AB 2608 and the procedures for requesting a replacement ballot. That memorandum recognized that AB 2608 repealed the law that allowed voters to apply for a VBM ballot by telephone, and noted that “[u]nder amended Elections Code section 3014, a second [VBM] ballot shall be provided to a ‘voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot.’” The memorandum went on to note that because Section 3014 of the Elections Code requires a statement to be made under penalty of perjury, “our office is of the opinion that this request for a replacement ballot cannot be made telephonically.”

By repealing the requirement that a voter must provide a specified statement under penalty of perjury before the elections official can provide the voter with a replacement VBM ballot, and instead requiring the elections official to provide a replacement ballot to a voter upon request, this bill would allow elections officials to issue replacement ballots over the phone or through other means without the need for a written request that is signed by the voter.

It should be noted that nothing in this bill allows an elections official to issue a replacement ballot to a person other than the voter themself without a written request from the voter. Existing law requires a voter to submit a written request, on a form prescribed by the SOS, signed by the voter under penalty of perjury, if the voter wants a replacement ballot to be delivered to the voter’s representative. This bill does not change that requirement.

COMMENTS

1. According to the author: During election season, there are many demands on the time and resources of elections workers. AB 398 simplifies the replacement ballot request system without compromising the integrity of elections as it relates to double votes. Removing the need to process physical replacement ballot requests will reduce both the workload of elections officials and speed up the process for voters.

Substituting “replacement ballot” for “second vote-by-mail ballot” in the Elections Code improves the specificity of the language and removes doubts as to the nature of these ballots.

1. Argument in Support. In a letter sponsoring AB 398, the California Association of Clerks and Election Officials stated, in part, the following:

AB 398 clears the way for elections officials to properly and more efficiently service voters by allowing election officials to quickly act on replacement ballot requests as they are received. Election officials will be able to initiate the replacement ballot process, in real time, as the voter makes the request. Additionally, AB 398 will treat voters equally by removing this same ballot replacement requirement for military and overseas voters thereby ensuring that they too have access to this same important service just like their domestic counterparts. Finally, as you may be aware, elections officials only count one ballot for each voter and have processes in the place to reject any additional ballots cast should a voter attempt to abuse the replacement ballot process to vote more than once.

RELATED/PRIOR LEGISLATION

AB 626 (Pellerin) of 2023 allows a voter to return their VBM ballot to an in-person voting location, without placing the ballot into a ballot identification envelope, if the ballot is returned to a vote center, as specified.

AB 2608 (Berman), Chapter 161, Statutes of 2022, among other provisions, repealed provisions of law related to applications for VBM ballots, including laws that that allowed elections officials to offer voters the ability to apply for VBM ballots electronically or by telephone, and consolidated provisions of law that govern the issuance of a second VBM ballot to a voter.

PRIOR ACTION

POSITIONS

Sponsor: California Association of Clerks and Election Officials

Support: American Association of University Women California

California Common Cause

California Environmental Voters

City Clerks Association of California

Disability Rights California

League of Women Voters of California

Oppose: None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 398

Author:(Pellerin)

As Amended Ver:March 16, 2023

Majority vote

SUMMARY

Allows an elections official to provide a replacement vote by mail (VBM) ballot to a voter without the need for the voter to provide a specified statement under penalty of perjury, if specified conditions are met.

Major Provisions

1. Eliminates a requirement that a voter provide a statement under penalty of perjury that the voter failed to receive, lost, or destroyed their original VBM ballot before the elections official provides the voter with a replacement VBM ballot, and instead requires the elections official to provide a replacement ballot to any voter upon request, subject to the following conditions:
   1. Requires the voter to provide to the elections official personal identifying information that matches the information contained on the voter's affidavit of registration, including first and last name, residence address, and date of birth.
   2. Requires the elections official, prior to issuing a replacement ballot, to advise the requestor as follows:

"Only the registered voter themself may request a replacement ballot. A request for a replacement ballot that is made by any person other than the registered voter is a criminal offense."

1. Changes the terminology used to describe the ballot that is issued to a voter after the issuance of the original VBM ballot for that voter from a "second vote by mail ballot" to a "replacement ballot."

COMMENTS

In 2001, the Legislature approved and Governor Davis signed AB 1520 (Shelley), Chapter 922, Statutes of 2001, which authorized any voter to become a permanent VBM voter, among other provisions. Since that time, California voters have increasingly used VBM ballots to vote in elections. Subsequent changes to California's election laws have further contributed to an increasing use of VBM ballots in elections. As an accommodation to facilitate voting at the 2020 general election during the height of the COVID-19 pandemic, the Legislature approved and Governor Newsom signed AB 860 (Berman), Chapter 4, Statutes of 2020, which required county elections officials to mail a ballot to every active registered voter for the November 3, 2020 statewide general election, among other provisions. The policy of requiring county elections officials to mail a ballot to all active registered voters ultimately was made permanent through the passage of AB 37 (Berman), Chapter 312, Statutes of 2021. At every statewide election held since California began mailing a ballot to every active registered voter, more than 86% of Californians who voted did so using a VBM ballot.

Last year, the Legislature approved and Governor Newsom signed AB 2608 (Berman), Chapter 161, Statutes of 2022, which made various conforming changes to reflect the fact that state law requires that every active registered voter be mailed a ballot for every election in which the voter is eligible to vote. Among other provisions, AB 2608 repealed provisions of law related to applications for VBM ballots (including laws that allowed elections officials to offer voters the ability to apply for VBM ballots electronically or by telephone) and consolidated provisions of law that govern the issuance of a second VBM ballot to a voter.

On September 29, 2022, the Secretary of State (SOS) issued a memorandum to county elections officials to address the changes made by AB 2608 and the procedures for requesting a replacement ballot. That memorandum recognized that AB 2608 repealed the law that allowed voters to apply for a VBM ballot by telephone, and noted that "[u]nder amended Elections Code section 3014, a second [VBM] ballot shall be provided to a 'voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot.'" The memorandum went on to note that because Elections Code Section 3014 requires a statement to be made under penalty of perjury, "our office is of the opinion that this request for a replacement ballot cannot be made telephonically."

By repealing the requirement that a voter must provide a specified statement under penalty of perjury before the elections official can provide the voter with a replacement VBM ballot, and instead requiring the elections official to provide a replacement ballot to a voter upon request, this bill would allow elections officials to issue replacement ballots over the phone or through other means without the need for a written request that is signed by the voter. The VBM ballot identification envelope, which voters generally use to return their completed VBM ballots, requires the voter to declare under penalty of perjury that the voter resides within the precinct in which the voter is voting and is the person whose name appears on the envelope.

According to the Author

"During countywide elections, a county may receive thousands of replacement ballot requests for lost or damaged ballots. The current process for voters to send ballot replacement request forms and to have those forms reviewed is redundant and adds additional work for elections workers since election management systems are already designed to track votes, prevent double votes, and verify voter signatures. AB 398 simplifies the replacement ballot request system by removing the requirement for physical replacement ballot requests. This bill will reduce both the workload of elections officials and speed up the process for voters without compromising the integrity of our elections."

Arguments in Support

The sponsor of this bill, the California Association of Clerks and Election Officials, wrote in support of a prior version of this bill, "Under current law, elections officials are required to provide a second vote by mail voter ballot to any voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot. Without first receiving a statement under penalty of perjury from the voter, election officials are currently barred from issuing a replacement ballot, even if that voter has already contacted the election official to request a replacement ballot…AB 398 clears the way for elections officials to properly and more efficiently service voters by allowing election officials to quickly act on replacement ballot requests as they are received. Election officials will be able to initiate the replacement ballot process, in real time, as the voter makes the request. Additionally, AB 398 will treat voters equally by removing this same ballot replacement requirement for military and overseas voters thereby ensuring that they too have access to this same important service just like their domestic counterparts."

Arguments in Opposition

None received.

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. By requiring a county elections official to issue replacement ballots in a specified manner, this bill may create a state-mandated local program. If the Commission on State Mandates determines the provisions of this bill create a new program or impose a higher level of service for which the state must reimburse local costs, the county could claim reimbursement from the state. However, since this bill is sponsored by elections officials to revise the existing replacement ballot process with a more streamlined process, reimbursable costs, if any, should be negligible.
2. Minor and absorbable costs to the SOS to update informational materials reflecting specified changes to election procedures. If a significant number of other bills necessitating such updates become law, SOS notes additional resources may be needed to address the aggregate impact.

VOTES

ASM ELECTIONS: 5-1-2

YES: Bryan, Lee, Low, Pellerin, Blanca Rubio

NO: Essayli

ABS, ABST OR NV: Lackey, Bennett

ASM APPROPRIATIONS: 10-3-3

YES: Holden, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Robert Rivas, Weber

NO: Megan Dahle, Mathis, Sanchez

ABS, ABST OR NV: Bryan, Dixon, Wilson

UPDATED

VERSION: March 16, 2023

CONSULTANT: Ethan Jones / ELECTIONS / (916) 319-2094 FN: 0000185

Date of Hearing: March 29, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 398

Author:(Pellerin) – As Amended Ver:March 16, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill revises how a voter can obtain a replacement ballot.

Specifically, this bill:

1. Repeals the requirement that an elections official receive a statement under penalty of perjury that a voter’s original ballot has been lost or destroyed, prior to providing the voter a second ballot. Instead, the elections official must provide a replacement ballot upon request and advise the requester as follows: “Only the registered voter themself may request a replacement ballot. A request for a replacement ballot that is made by any person other than the registered voter is a criminal offense.”
2. Requires the requester to provide the elections official with personal identifying information matching information contained on the voter’s affidavit of registration.

FISCAL EFFECT:

1. By requiring a county elections official to issue replacement ballots in a specified manner, this bill may create a state-mandated local program. If the Commission on State Mandates determines the provisions of this bill create a new program or impose a higher level of service for which the state must reimburse local costs, the county could claim reimbursement from the state. However, since this bill is sponsored by elections officials to revise the existing replacement ballot process with a more streamlined process, reimbursable costs, if any, should be negligible.
2. Minor and absorbable costs to the Secretary of State (SOS) to update informational materials reflecting specified changes to election procedures. If a significant number of other bills necessitating such updates become law, SOS notes additional resources may be needed to address the aggregate impact.

COMMENTS:

1. Purpose. According to the author:

During countywide elections, a county may receive thousands of replacement ballot requests for lost or damaged ballots. The current process for voters to send ballot replacement request forms and to have those forms reviewed is redundant and adds additional work for elections workers since election management systems are already designed to track votes, prevent double votes, and verify voter signatures. AB 398 simplifies the replacement ballot request system by removing the requirement for physical replacement ballot requests.

This bill is sponsored by the California Association of Clerks and Elections Officials.

1. Vote By Mail (VBM) Replacement Ballots. AB 37 (Berman), Chapter 312, Statutes of 2021, made permanent the practice adopted during the height of the COVID-19 pandemic for county elections officials to mail every active registered voter a ballot prior to an election. On September 29, 2022, SOS issued a memorandum to county elections officials regarding subsequent implementing legislation that, amongst other provisions, repealed the law allowing voters to apply for a VBM ballot by telephone. Since other provisions of law allow delivery of a second VBM ballot only upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot, the SOS memo opined “this request for a replacement ballot cannot be made telephonically.”

This bill repeals the statement under penalty of perjury requirement and instead requires an elections official to provide the voter a replacement ballot upon request. Thus, a replacement ballot could be issued by means other than a written request signed by the voter. However, to ensure verification of the voter’s identity, this bill also requires a voter to provide the elections official with personal identifying information matching the voter’s affidavit of registration and requires the elections official to advise the requester that it is a criminal offense to request a replacement ballot if the requestor is not the registered voter.

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: March 15, 2023

ASSEMBLY COMMITTEE ON ELECTIONS

Isaac G. Bryan, Chair

ABPCA Bill Id:AB 398 (

Author:Pellerin) – As Introduced Ver:February 2, 2023

SUBJECT: Voting: replacement ballots.

SUMMARY: Allows an elections official to provide a replacement vote by mail (VBM) ballot to a voter without the need for the voter to provide a specified statement under penalty of perjury. Specifically, this bill:

1. Eliminates a requirement that a voter provide a statement under penalty of perjury that the voter failed to receive, lost, or destroyed their original VBM ballot before the elections official provides the voter with a replacement VBM ballot, and instead requires the elections official to provide a replacement ballot to any voter upon request.
2. Changes the terminology used to describe the ballot that is issued to a voter after the issuance of the original VBM ballot for that voter from a “second vote by mail ballot” to a “replacement ballot.”
3. Makes technical and conforming changes.

EXISTING LAW:

1. Requires an elections official to mail a ballot to every active registered voter for every election in which the voter is eligible to participate. Requires the elections official to begin mailing VBM ballots no later than 29 days before the election, as specified. (Elections Code §3000.5)
   
2. Requires an elections official to provide a second VBM ballot to any voter upon receipt of a statement under penalty of perjury that the voter failed to receive, lost, or destroyed their original ballot. (Elections Code §3014(a))
3. Requires an elections official to provide a second VBM ballot to the voter’s representative upon receipt of a written request, on a form prescribed by the Secretary of State (SOS), signed by the voter under penalty of perjury, requesting that a ballot be provided to the voter’s representative, as specified. (Elections Code §3014(b))
4. Requires an elections official to keep a record of each VBM ballot sent to and received from a voter and to verify, prior to counting any duplicate ballot, that the voter has not attempted to vote twice. (Elections Code §3014(d))
5. Permits a voter who has declined to disclose a political party preference to request the ballot of a political party that has authorized a voter who has declined to disclose a political party preference to vote in its partisan primary election, as specified. Permits the voter to make that request through various means, including by telephone or by an application over the internet, if available. (Elections Code §13502)

FISCAL EFFECT: None. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS:

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

During countywide elections, a county may receive thousands of replacement ballot requests for lost or damaged ballots. The current process for voters to send ballot replacement request forms and to have those forms reviewed is redundant and adds additional work for elections workers since election management systems are already designed to track votes, prevent double votes, and verify voter signatures. AB 398 simplifies the replacement ballot request system by removing the requirement for physical replacement ballot requests. This bill will reduce both the workload of elections officials and speed up the process for voters without compromising the integrity of our elections.

1. Use of VBM Ballots in California Elections: In 2001, the Legislature approved and Governor Davis signed AB 1520 (Shelley), Chapter 922, Statutes of 2001, which authorized any voter to become a permanent VBM voter, among other provisions. Since that time, California voters have increasingly used VBM ballots to vote in elections. At the 2000 statewide general election (the last statewide election held before AB 1520 was enacted), 24.5% of Californians who voted in that election did so using a VBM ballot. By contrast, since 2012, a majority of ballots cast in every California statewide election were VBM ballots.
   
   Subsequent changes to California’s election laws have further contributed to an increasing use of VBM ballots in elections. As an accommodation to facilitate voting at the 2020 general election during the height of the COVID-19 pandemic, the Legislature approved and Governor Newsom signed AB 860 (Berman), Chapter 4, Statutes of 2020, which required county elections officials to mail a ballot to every active registered voter for the November 3, 2020 statewide general election, among other provisions. The policy of requiring county elections officials to mail a ballot to all active registered voters ultimately was made permanent through the passage of AB 37 (Berman), Chapter 312, Statutes of 2021. At every statewide election held since California began mailing a ballot to every active registered voter, more than 86% of Californians who voted did so using a VBM ballot. The following chart details the historical use of VBM ballots by California voters in statewide elections since 2000:

A voter’s ballot is classified as a VBM ballot if it was issued to the voter as a VBM ballot, even if the ballot is not ultimately returned by mail. According to information from the SOS, in recent statewide elections, more than a third of VBM ballots have been returned by voters through methods other than by mail, including VBM ballots that are returned to ballot drop boxes, ballot drop-off locations, polling places, and vote centers. For the November 2020 presidential general election, more than 60% of the VBM ballots cast were returned by a method other than by mail.

1. VBM Ballot Applications, Replacement Ballots, and Previous Legislation: Last year, the Legislature approved and Governor Newsom signed AB 2608 (Berman), Chapter 161, Statutes of 2022, which made various conforming changes to reflect the fact that state law requires that every active registered voter be mailed a ballot for every election in which the voter is eligible to vote. Among other provisions, AB 2608 repealed provisions of law related to applications for VBM ballots (including laws that that allowed elections officials to offer voters the ability to apply for VBM ballots electronically or by telephone) and consolidated provisions of law that govern the issuance of a second VBM ballot to a voter.
   
   On September 29, 2022, the SOS issued a memorandum to county elections officials to address the changes made by AB 2608 and the procedures for requesting a replacement ballot. That memorandum recognized that AB 2608 repealed the law that allowed voters to apply for a VBM ballot by telephone, and noted that “[u]nder amended Elections Code section 3014, a second [VBM] ballot shall be provided to a ‘voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot.’” The memorandum went on to note that because Section 3014 of the Elections Code requires a statement to be made under penalty of perjury, “our office is of the opinion that this request for a replacement ballot cannot be made telephonically.”
   
   By repealing the requirement that a voter must provide a specified statement under penalty of perjury before the elections official can provide the voter with a replacement VBM ballot, and instead requiring the elections official to provide a replacement ballot to a voter upon request, this bill would allow elections officials to issue replacement ballots over the phone or through other means without the need for a written request that is signed by the voter.
   
   Nothing in this bill, however, allows an elections official to issue a replacement ballot to a person other than the voter themself without a written request from the voter. As detailed above, existing law requires a voter to submit a written request, on a form prescribed by the SOS, signed by the voter under penalty of perjury, if the voter wants a replacement ballot to be delivered to the voter’s representative. Nothing in this bill changes that existing requirement.
2. Verification of Voter’s Identity and Suggested Amendments: As described above, state law previously allowed voters to apply for a VBM ballot electronically or by telephone. In both cases, state law required the elections official to verify a voter’s personal identifying information before issuing a VBM ballot, and required that the applicant be notified that an application for a VBM ballot may not be made by a person other than the registered voter.
   
   Additionally, existing state law allows a voter who has declined to disclose a political party preference to request to receive the ballot of a political party for a partisan primary election in certain circumstances. When such applications are made by phone, existing law similarly requires the elections official to verify a voter’s personal identifying information before issuing a party’s ballot to the voter, and requires that the applicant be notified that a request for a political party’s ballot may not be made by a person other than the voter.
   
   The committee may wish to consider similar amendments to this bill, both to ensure that a voter’s identity is confirmed before they are issued a replacement ballot and to ensure that voters are aware of existing restrictions on requesting a replacement ballot for another voter. Specifically, the committee may wish to amend this bill as follows:
   
   (1) Require a voter who requests a replacement ballot to provide the elections official with personal identifying information that matches the information contained on the voter’s affidavit of registration, including first and last name, residence address, and date of birth.
   
   (2) Require the elections official, prior to issuing a replacement ballot, to advise the requestor that only the registered voter may request a replacement ballot, and that a request for a replacement ballot that is made by any person other than the registered voter is a criminal offense.
3. Arguments in Support: The sponsor of this bill, the California Association of Clerks and Election Officials, writes in support:

Under current law, elections officials are required to provide a second vote by mail voter ballot to any voter upon receipt of a statement under penalty of perjury that the voter has failed to receive, lost, or destroyed their original ballot. Without first receiving a statement under penalty of perjury from the voter, election officials are currently barred from issuing a replacement ballot, even if that voter has already contacted the election official to request a replacement ballot. In these instances, a voter may be subjected to a longer wait period as they work through all of the steps that are necessary to initiate the replacement ballot process.

AB 398 clears the way for elections officials to properly and more efficiently service voters by allowing election officials to quickly act on replacement ballot requests as they are received. Election officials will be able to initiate the replacement ballot process, in real time, as the voter makes the request. Additionally, AB 398 will treat voters equally by removing this same ballot replacement requirement for military and overseas voters thereby ensuring that they too have access to this same important service just like their domestic counterparts. Finally, as you may be aware, elections officials only count one ballot for each voter and have processes in the place to reject any additional ballots cast should a voter attempt to abuse the replacement ballot process to vote more than once.

1. Related Legislation: AB 626 (Pellerin), which is also being heard in this committee today, allows a voter to return their VBM ballot to an in-person voting location, without placing the ballot into a ballot identification envelope, if the ballot is returned to a vote center, as specified.
2. Previous Legislation: AB 2227 (Keeley), Chapter 753, Statutes of 2002, allowed local elections officials to permit voters to apply for VBM ballots (which were referred to as “absentee ballots” at the time) electronically. AB 530 (Quirk-Silva), Chapter 501, Statutes of 2013, permitted local elections officials to allow voters to apply for VBM ballots by telephone. The provisions of those two bills were repealed by AB 2608 (Berman), Chapter 161, Statutes of 2022, as described above.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Clerks and Election Officials (Sponsor)
California Environmental Voters

Disability Rights California

Opposition

None on file.

Analysis Prepared by: Ethan Jones / ELECTIONS / (916) 319-2094