Statute's vague language concerns some election watchdogs...
By Brad Friedman on 2/5/2015, 11:26am PT  

When California state Sen. Lou Correa (D) authored SB 29 last year, allowing Vote-by-Mail (VBM) ballots to be accepted and counted even if they arrive at county election headquarters up to three days after Election Day, some state Election Integrity advocates were concerned.

Somewhat vague language in part of the bill might allow for a case where, in the event of a very close margin announced on Election Night, unvoted absentee ballots could be quickly filled out after the fact and delivered to election officials inside the new three day post-election window.

If a race was close enough, late arriving ballots --- either legitimately voted on or before Election Day, or, depending on how local election officials choose to interpret the statute, illegitimately voted and delivered after Election Day --- could actually reverse the results of such a contest.

Little could Correa have known, however, as he was successfully moving his bill through the California state legislature last year, to take effect in January 2015, that the very first election of the year --- and the very first to be decided by a small enough margin that it could be directly affected by late ballots now allowed under SB 29 --- would be...Lou Correa's...

Orange ya glad you passed that bill?

On January 27, having been term-limited out of the state Senate, Correa ran in a Special Election to fill a vacancy on the Orange County, CA Board of Supervisors (District 1) against Republican Andrew Do and a number of other candidates.

The results were exceedingly close. During the post-election canvass period, the lead see-sawed back and forth between Correa and Do, with as little as a 2-vote margin reported at one point out of nearly 50,000 ballots cast in the race.

Ultimately, the special election was certified by the county last week with a slim 43-vote margin in favor of Do. So was Correa a "victim" of his own legislation?

At the time it was being considered in the state Senate, proponents of the bill cited a 2010 incident in Riverside County, CA where "12,563 VBM ballots were discovered at a local post office the day after the June 8, 2010 Statewide Primary Election. These ballots were eventually accepted by the county elections official, but only after a superior court judge ruled that they should be counted."

According to the legislative analysis, the voters in question had mailed their ballots on time, but, due to a failure of county officials, the votes weren't discovered until after Election Day and, according to statutes then in place, would have been rejected but for the intervention of the court. [Note: This is just one of the reasons we've long argued that Vote-by-Mail is a terrible idea unless its absolutely necessary for voters.]

SB 29 was meant to keep that sort of problem from occurring in the future and to make sure that any slow-downs at the post office, particularly in the wake of USPS facility closures around the state (and country), wouldn't affect the proper delivery and counting of the state's increasingly large percentages of VBM ballots.

Here's the pertinent language from the bill, as eventually passed by both chambers of the state legislature and signed into law last year by Gov. Jerry Brown:

SEC. 3. 4103. (b)

...any vote by mail ballot cast under this chapter shall be timely cast if it is received by the voter's elections official via the United States Postal Service or a bona fide private mail delivery company no later than three days after election day and either of the following is satisfied:

(1) The ballot is postmarked on or before election day or is time stamped or date stamped by a bona fide private mail delivery company on or before election day.

(2) If the ballot has no postmark, a postmark with no date, or an illegible postmark, the vote by mail ballot identification envelope is date stamped by the elections official upon receipt of the vote by mail ballot from the United States Postal Service or a bona fide private mail delivery company, and is signed and dated ... on or before election day.

It's that second sub-section that has worried some Election Integrity experts.

We checked with Orange County Registrar of Voters Neal Kelley, who confirmed the County did, in fact, "have ballots that came in each day following" Election Day on January 27. A total of 915 late ballots arrived, in the race decided by just 43 votes.

"Of the 915," Kelley told The BRAD BLOG, "258 were too late and not counted," due to either a late postmark or no postmark at all and with a date after Election Day written by the voter on the inner ballot envelope.

"657 were valid based on the criteria set forth in the law," he says. They were tallied as part of the official results. That, of course, is more than enough votes to have made the difference and cost Correa the election.

Depends on your definition of 'bona fide'

Last summer, as SB 29 was working its way through committee and to the floor of the state Senate, Jim Soper, co-chair of the Voting Rights Task Force in California, a non-profit watchdog organization, was one of a number of state Election Integrity advocates concerned about how the statute might be abused by voters and/or misinterpreted by election officials.

"The problem with SB 29," he told The BRAD BLOG last year after the bill met some unexpected Republican opposition in the state Assembly, but passed nonetheless, "was that it did not require a postmark. The date written by the voter on the VBM envelope is considered evidence enough of when it was filled out. Enabling people to vote after they've seen the election results."

Other Election Integrity advocates told us they are worried that "collectors could go around and...tell the voters to sign election day's date (or day before) and personally deliver" those ballots to county headquarters in the event of a close race announced on Election Night.

But, in fact, according to the actual language of the statute, while voters might be willing to lie and misdate their ballot envelopes, they would still have to have them delivered by a "bona fide private mail delivery company" within three days after the election in order for them to be counted without a USPS postmark dated on or before Election Day.

So, the definition of "bona fide private mail delivery company" then comes into play, since that is not defined in the bill's language. What constitutes such a company? Would a local messenger service do the trick? And shouldn't all of that be determined publicly, in writing, before it becomes a potential election issue?

We asked Orange County's Kelley, who also happens to serve as the current President of the California Association of Clerks and Election Officials (CACEO), if either the County or CACEO has implemented an official, written policy directive on how to determine whether or not to count ballots that may now arrive after Election Day under SB 29's new allowance.

"We (CACEO and OC) do not have an official document," he says. "However, the procedure is straight forward and spelled out in the law --- if there is a postmark it is controlling and must be postmarked on or before Election Day. If there is no postmark the voter's signature/date is controlling --- and it must be dated on or before Election Day."

He says concern about what constitutes a "bona fide private mail delivery company" is a valid one, however, since it's not defined in the statute itself.

"These are issues we (CACEO) raised during the bill discussions." In Orange County, he explained, he has "interpreted that to mean companies such as UPS, FedEx, DHL, etc." and adds that "the mail delivery company would have to verify through data tracking that the package was received at their drop off location on OR before Election Day."

He does concede, however, that that was only "OC's policy, which is not written in the legislation. But since it is untested at this point that's the position we are taking."

We asked Dean Logan, Registrar-Recorder/County Clerk of the nation's largest voting jurisdiction, Los Angeles County, whether he has produced a formal procedure for use in such cases. He told us that while L.A. has yet to have an election since the law went into effect in January, "to date, no specific guidance or criteria has been issued regarding this language."

"It seems that the determination is left to the Registrar to demonstrate that any ballots counted are compliant with this language. FedEx and UPS delivery service seem to be likely examples," he told us, adding: "I will be looking at this more closely as we head into our 2015 election cycles."

We have sought comment from the office of CA Sec. of State Alex Padilla, formerly a Democratic state Senator who supported SB 29 himself before being sworn in as the state's new SoS last month. We have not immediately receive a reply, but will update this article as appropriate if we do.

In any event, to put at least some concerns to rest for now, in the Correa/Do race in Orange County, Kelley says, they "received no late ballots from any organization other than the USPS."

Recount ahead

On Tuesday, Correa's legal team officially filed for a recount in the Orange County Board of Supervisors race, citing concerns about a number of "irregularities", according to the OC Register.

Among the irregularities described in a statement released on Monday, Correa said: "My campaign has received a number of reports over the past week or so contending that people who did not really live in the First Supervisorial District registered to vote and cast ballots in this election. We have also received reports regarding irregularities in the handling and processing of vote-by-mail ballots, with campaigns collecting (and even paying for) voted ballots and returning them to the Registrar's office or at the polls."

He did not, specifically, cite concerns about the 657 late VBM ballots accepted for counting for the first time in California history, thanks to the very law that he authored last year.

We have requested comment from Correa, as we are curious if he may now regret his authorship of SB 29, but we have yet to hear back.

Kelley says it's impossible to know whether those 657 ballots themselves flipped the ultimate outcome of the election, as those ballots are now included with the rest of the VBM ballots cast and counted. Given the razor-thin results, however, it seems very likely those votes may have made the difference in this race.

The recount of the Board of Supervisors' First District Special Election is set to begin at County Headquarters on Monday at 9am.

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