PROPOSED CALIFORNIA ELECTION CODE CHANGES

1/24/2008

RECOUNTS

Questions:

Jerry Berkman, (510)547-0985, jerry@berkeley.edu

Michelle Gabriel, (510)444-4370, mwg@jmbaai.com

Jim Soper, (510)285-4857, somethoughts@aol.com

Summary:

15610 - Simplify procedure for elections official to order recount

15620 - Move recounts of slates of presidential electors from 15620 (non-statewide races) to 15621 (statewide races).

15621 - Change request period for requesting a recount as current requirements may be impossible; delete requiring specifying candidate in request.

15624 - Restrict cost of recount; change criteria for refund to requestor

15626 - Add special speedup for request for recount of presidential electors, so maybe it can be done before electoral college meets.

15627 - Change what is recounted.

15630 - State participants in recount can get close enough to see the ballots

15635 - Specify automatic hand recount if margin less than 0.5%

15640 - Extend period by board of sups or grand jury for requesting recount; delete reference to non-existent section 15645

SECTION 15610

Current Elections Code:

15610. If no election contest is pending wherein a recount of the

ballots in a precinct has been or will be ordered, the elections

official may order that the ballots voted in the precinct be publicly

recounted if both of the following apply:

(a) The elections official has reasonable cause to believe the

ballots in the precinct have been miscounted.

(b) The elections official has examined, under oath, the precinct

board members or, in the case of ballots counted by a central

counting system, the counting board members, and they are unable to

explain the returns of their respective precincts.

Proposed Revision:

15610. If no election contest is pending wherein a recount of the ballots in a precinct has been or will be ordered, the elections official may order that the ballots voted in the precinct be publicly recounted if ~~both of the following apply:~~

~~(a) The~~ the elections official has reasonable cause to believe the ballots in the precinct have been miscounted.

(b) The elections official has examined, under oath, the precinct board members or, in the case of ballots counted by a central counting system, the counting board members, and they are unable to explain the returns of their respective precincts.

SECTION 15620

Current Elections Code:

15620. Following completion of the official canvass, any voter may, within five days thereafter, file with the elections official responsible for conducting an election in the county wherein the recount is sought a written request for a recount of the votes cast for candidates for any office, for slates of presidential electors, or for or against any measure, provided the office, slate, or measure is not voted on statewide. The request shall specify on behalf of which candidate, slate of electors, or position on a measure (affirmative or negative) it is filed.

If an election is conducted in more than one county, the request for the recount may be filed with the elections official of, and the recount conducted within, any or all of the affected counties.

For the purposes of this section "completion of the canvass" shall be presumed to be that time when the elections official signs the certified statement of the results of the election except that, in the case of a city election, if a city council canvasses the returns itself and does not order the elections official to conduct the canvass as permitted by Section 10263, "completion of the canvass" shall be presumed to be that time when the governing body declares the persons elected or the measures approved or defeated.

Proposed Revision:

15620. Following completion of the official canvass, any voter may, within five days thereafter, file with the elections official responsible for conducting an election in the county wherein the recount is sought a written request for a recount of the votes cast for candidates for any office~~, for slates of presidential electors,~~ or for or against any measure, provided the office~~, slate~~ or measure is not voted on statewide. The request shall specify on behalf of which candidate~~, slate of electors,~~ or position on a measure (affirmative or negative) it is filed.

If an election is conducted in more than one county, the request for the recount may be filed with the elections official of, and the recount conducted within, any or all of the affected counties.

SECTION 15621

Current Elections Code:

15621. Following completion of the official canvass, any voter may,

within five days beginning on the 29th day after a statewide

election, file with the Secretary of State 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. The request shall

specify in which county or counties the recount is sought and shall

specify on behalf of which candidate, slate of electors, or position

on a measure (affirmative or negative) it is filed.

The Secretary of State shall forthwith send by registered mail one

copy of the request to the elections official of each county in

which a recount of the votes is sought.

All the other provisions of this article shall apply to recounts

conducted under this section.

Proposed Revision:

15621. ~~Following completion of the official canvass, any voter may, within five days beginning on the 29th day after a statewide election,~~ Any voter may, up to thirty four days after a statewide election or up to five days after the completion of the canvass, whichever is later, file with the Secretary of State a written request for a recount of the votes cast for candidates for any statewide office, for slates of presidential electors, or for or against any measure voted on statewide. The request shall specify in which county or counties the recount is sought ~~and shall specify on behalf of which candidate, slate of electors, or position on a measure (affirmative or negative) it is filed~~.

The Secretary of State shall forthwith send by registered mail one copy of the request to the elections official of each county in which a recount of the votes is sought.

All the other provisions of this article shall apply to recounts conducted under this section.

SECTION 15624

Current Elections Code:

15624. The voter filing the request seeking the recount shall,

before the recount is commenced and at the beginning of each day

following, deposit with the elections official a sum as required by

the elections official to cover the cost of the recount for that day.

The money deposited shall be returned to the depositor if, upon

completion of the recount, the candidate, slate of presidential

electors, or the position on the measure (affirmative or negative)

for which the declaration is filed is found to have received the

plurality of votes cast which it had not received according to the

official canvass or, in an election where there are two or more

candidates, the recount results in the candidate for whom the recount

was requested appearing on the ballot in a subsequent runoff

election or general election who would not have so appeared in the

absence of the recount. The depositor shall be entitled to the

return of any money deposited in excess of the cost of the recount if

the candidate, slate, or position on the measure has not received

the plurality of the votes cast or, in an election where there are

two or more candidates, the recount does not result in the candidate

for whom the recount was requested appearing on the ballot in a

subsequent runoff or general election as a result of the recount.

Money not required to be refunded shall be deposited in the

appropriate public treasury.

Proposed Revision:

15624. The voter filing the request seeking the recount shall, before the recount is commenced and at the beginning of each day following, deposit with the elections official a sum as required by the elections official to cover the cost of the recount for that day. The cost shall be limited to the compensation of the special recount boards for counting votes. The elections official shall not charge the voter for any expenses other than the compensation of the recount boards for counting votes. The elections official shall not require more than one day's compensation to begin the recount.

The money deposited shall be returned to the depositor if, upon completion of the recount, a different candidate or candidates, slate of presidential electors, or position on the measure is found to have won. the candidate, slate of presidential electors, or the position on the measure (affirmative or negative) for which the declaration is filed is found to have received the plurality of votes cast which it had not received according to the official canvass or, in an election where there are two or more candidates, the recount results in the candidate for whom the recount was requested appearing on the ballot in a subsequent runoff election or general election who would not have so appeared in the absence of the recount. If there is no difference in the results with respect to winners, the ~~The~~ depositor shall be entitled to the return of any money deposited in excess of the cost of the recount. if the candidate, slate, or position on the measure has not received the plurality of the votes cast or, in an election where there are two or more candidates, the recount does not result in the candidate for whom the recount was requested appearing on the ballot in a subsequent runoff or general election as a result of the recount. Any refund shall be refunded within 30 days after the recount has concluded. Money not required to be refunded shall be deposited in the appropriate public treasury.

SECTION 15626

Current Elections Code:

15626. The recount shall be commenced not more than seven days

following the receipt by the elections official of the request for

the recount under Section 15620 or 15621, and shall be continued

daily, Saturdays, Sundays, and holidays excepted, for not less than

six hours each day until completed. The recount shall not be

commenced until the first day following notification of the

individuals specified in Section 15628.

Proposed Revision:

15626. The recount shall be commenced not more than seven days following the receipt by the elections official of the request for the recount under Section 15620 or 15621, and shall be continued daily, Saturdays, Sundays, and holidays excepted, for not less than six hours each day until completed. The recount shall not be commenced until the first day following notification of the individuals specified in Section 15628.

If the request is for a recount of the vote to elect presidential electors, the recount shall be commenced not more than three days following the receipt by the elections official of the request for the recount under Section 15620 or 15621, and shall be continued daily including weekends, with no exceptions except for Thanksgiving Day, for not less than eight hours each day until completed. The recount shall not be commenced until the first day following notification of the individuals specified in Section 15628.

SECTION 15627

Current Elections Code:

15627. (a) 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

(b) For purposes of direct recording electronic voting systems, "conducted manually" means that either the paper record copies or the voter verified paper audit trail of the electronically recorded vote are counted manually, as selected by the voter who requests the recount.

Proposed Revision:

(a) 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~~

the recount shall be conducted by a method designated for manually counting ballots set forth in section 15276 of the Elections Code, which includes the reading and tallying method, and the sort and stack method.

The voter requesting the recount may choose that any or all of the in-precinct paper ballots, voter verified paper audit trails, absentee ballots, provisional ballots, and early voting ballots will be recounted. The voter may add other categories of ballots as the recount continues and up to 24 hours after it ends.

(b)For purposes of direct recording electronic voting systems, "conducted manually" means that ~~either the paper record copies or~~ the voter verified paper audit trail of the electronically recorded vote are counted manually.

SECTION 15630

Current Elections Code:

15630. All ballots, whether voted or not, and any other relevant

material, may be examined as part of any recount if the voter filing

the declaration requesting the recount so requests.

No examination of any ballot shall include touching or handling

the ballot without the express consent of the elections official or

the election officer supervising the special recount board. No

ballot may be touched or handled during the examination unless the

elections official or the elections officer supervising the special

recount is present to observe the examination.

Except as provided in this section no ballot shall be touched or

handled by any person during the recount unless that person is the

elections official, a person acting at the direction of the elections

official, a member of the special recount board, or by order of the

superior court.

Proposed Revision:

15630. All ballots, whether voted or not, and any other relevant material, may be examined as part of any recount if the voter filing the declaration requesting the recount so requests.

No examination of any ballot shall include touching or handling the ballot without the express consent of the elections official or the election officer supervising the special recount board. No ballot may be touched or handled during the examination unless the elections official or the elections officer supervising the special recount is present to observe the examination.

Except as provided in this section no ballot shall be touched or handled by any person during the recount unless that person is the elections official, a person acting at the direction of the elections official, a member of the special recount board, or by order of the superior court.

Representatives of the candidates or positions on a measure in the race being recounted shall be able to observe the recount at a close enough range that they are able to read which candidate or candidates were voted for or whether the voter voted for or against a measure.

SECTION 15635 (new section)

Proposed New Section:

15635. If the final vote in a race differs between the winner and loser of a one seat race, or the winner with the fewest votes and loser with the most votes in a multiple seat race, or between the "Yes" votes and the required votes for victory for a measure, is less than one half percent, a hand recount shall be performed.

SECTION 15640

Current Elections Code:

15640. (a) When requested by the board of supervisors or the grand

jury, the district attorney may petition the superior court for an

order directing a public recount to be made of ballots tabulated by a

voting system in any precincts in the county that it designates for

any election occurring not over 25 days before the request. The

request and petition shall be made only on one or more of the

following grounds, and the order may be issued only with a finding

that there is probable cause to believe that one or more of the

grounds exist:

(1) Misconduct by anyone sufficient to make it likely that the

result of the election was affected as to the successful candidates

or propositions or tie holders, including any of the conduct

specified in Section 16100.

(2) Errors or failures, whether electronic, mechanical or

otherwise, in the safekeeping, handling, tallying, counting,

recording, or certification of the ballots or votes cast, sufficient

to make it likely that the result of the election was affected as to

the successful candidates or propositions or tie holders, or

sufficient to cast substantial doubt on the substantial accuracy of

the results without regard to affecting any result.

The petition shall be set for hearing and may be opposed by any

interested party.

(b) The court may order any further recounts that it may deem

proper based on the results of the recounts provided for in

subdivision (a) or in Section 15645, and shall declare the results of

all the recounts, and shall determine and order corrected the

results of any election affected by any recount.

in whole or in just proportion by any person or any public agency, or

both, who petition for a recount. In the case of public agencies

the costs shall be provided for and paid pursuant to Section 19212.

Proposed revision:

15640. (a) When requested by the board of supervisors or the grand jury, the district attorney may petition the superior court for an order directing a public recount to be made of ballots tabulated by a voting system in any precincts in the county that it designates for any election ~~occurring~~ whose results were certified not over 25 days before the request. The request and petition shall be made only on one or more of the

following grounds, and the order may be issued only with a finding

that there is probable cause to believe that one or more of the

grounds exist:

(1) Misconduct by anyone sufficient to make it likely that the

result of the election was affected as to the successful candidates

or propositions or tie holders, including any of the conduct

specified in Section 16100.

(2) Errors or failures, whether electronic, mechanical or

otherwise, in the safekeeping, handling, tallying, counting,

recording, or certification of the ballots or votes cast, sufficient

to make it likely that the result of the election was affected as to

the successful candidates or propositions or tie holders, or

sufficient to cast substantial doubt on the substantial accuracy of

the results without regard to affecting any result.

The petition shall be set for hearing and may be opposed by any

interested party.

(b) The court may order any further recounts that it may deem proper based on the results of the recounts provided for in subdivision (a) ~~or in Section 15645~~, and shall declare the results of all the recounts, and shall determine and order corrected the results of any election affected by any recount.

in whole or in just proportion by any person or any public agency, or

both, who petition for a recount. In the case of public agencies

the costs shall be provided for and paid pursuant to Section 19212.