By Michelle Rubalcava
Copyright © 2001 by University of the McGeorge School of Law
JD, McGeorge School of Law, University of the Pacific
to be conferred May 2003
B.A., International Relations, University of California, Davis, 1997
It is a general assumption among American voters, that when they vote, their vote is counted. The right to vote and the assumption that your vote will have some effect on the election in which it is cast is a deep rooted belief in American politics. The 2000 Presidential election destroyed that belief for a large number of American voters. The fact that legitimate ballots were not counted toward their intended candidate was a rude awakening for the American electorate. In March 2002, California voters will have the opportunity to vote for Proposition 43, and turn the assumption, that all votes cast should be counted, into law.
Proposition 43, The Right to Have Your Vote Count, will be placed on the March ballot in order to ensure that when a voter casts a vote in an election in accordance with the laws of this state, that vote will be counted. Right to Have Vote Counted, Cal. Sen. ACA 9, 2001-2002 Reg. Sess. (March 13, 2001). Proposition 43 is a California state constitutional amendment which proposes to amend the state Constitution to expressly provide that a voter who casts a vote in accordance with the laws of California shall have that vote counted. Cal. Sen. Const. Amend. Comm., ACA 9, 2001-2002 Reg. Sess. 1 (August 30, 2001) (emphasis added). If California voters pass Proposition 43 in the March election, they will also enact California Assembly Bill 733 (Longville). Cal. Assembly 733, 2001-2002 Reg. Sess. 1 (Feb. 22, 2001). Assembly Bill 733 is the companion measure to Proposition 43, and will only become operative upon successful completion of the condition that the California electorate adopt Proposition 43. Cal. Sen. Const. Amend. Comm., ACA. 9 at 1. This measure would expressly allow a county election official to submit a petition to the California courts to extend a post-election statutory deadline, when that deadline prevents the proper tabulation or recounting of ballots. Cal. Sen. Rules Comm., ACA 9, 2001-2002 Reg. Sess. 1 (July 19, 2001). AB 733 is an interpretative measure of the constitutional right that Proposition 43 seeks to provide.
A. Existing Law
1. The Law Prior to Proposition 43
California law provides that a United States citizen of at least 18 years of age and resident in this State may vote. Cal. Const. art. II, § 2. California law also provides that the Legislature shall define residence and provide for registration and free elections. Cal. Const. art. II, § 3. However, while the California Constitution recognizes the right to vote if certain conditions are met, neither the United States Constitution nor the California Constitution expressly guarantee that those votes will be counted. Cal. Sen. Rules Comm., ACA 9 at pg. 1.
2. The Law Prior to Assembly Bill 733
California Elections Code § 335.5 defines the "official canvass" in an election as the public process of processing and tallying all ballots received in an election, including, but not limited to, provisional ballots and absentee ballots not included in the semifinal official canvass. Cal. Elec. Code § 335.5 (1996). The official canvass also includes the process of reconciling ballots, attempting to prohibit duplicate voting by absentee and provisional voters, and performance of the manual tally of one percent of all precincts. (Id.) The Elections Code further prescribes various deadlines for the process of tabulating and reporting votes. Cal. Sen. Elections and Reapportionment Comm., ACA 9, 2001-2002 Reg. Sess. 1 (July 11, 2001). The Elections Code states that election results must be certified by county election officials within 28 days of the election. (Id.) Elections Code § 6420 states that the Secretary of State shall, not later than the 32nd day after the election, compile and file in his or her office a statement of the canvassed returns filed with him or her by the county elections officials. Cal. Elections Code § 6420. The compiled statement shall show for each candidate the total of the votes received and the votes received in each county. (Id.)
Division 15, Chapter 9 of the Elections Codes addresses the topic of Recounts. Cal. Elec. Code § 15600. Elections Code § 15620 states that following the completion of the official canvass, any voter may, within five days thereafter, file with the elections official a written request for a recount. Cal. Elec. Code § 15620. Section 15640 of the Elections Code states that the board of supervisors or the grand jury may request that the district attorney petition the superior court for an order directing a public recount in any election occurring not over 25 days before the request. Cal. Elec. Code § 15640.
The proper court procedures for post-election disputes are addressed within the 16000 series of the Elections Code. Cal. Elec. Code § 16000. This series provides for the proper grounds for an election contest, the form of a contest statement, and the court's duties. Cal. Elec. Code §§ 16100-16742. The general grounds for a post-election contest are set forth in section 16100, wherein it provides, any elector of a county, city or of any political subdivision of either may contest any election held therein, for any of the following causes: misconduct of the precinct board or member of the board, the person who was elected to office was not at that time of the election eligible for that office, there was a bribe or reward or an offer of a bribe or reward for the purpose of procuring an election, illegal votes were cast, the precinct board made errors in the conducting or canvassing of the election sufficient to change the result of the election, and if there was any error in the vote-counting programs or summation of ballot counts. Cal. Elec. Code § 16100.
Sections 16400 and 16401 of the Elections Code set forth the proper form for a contest statement and the timeline during when such a statement must be filed with the clerk of the superior court. Cal. Elect. Code § 16400-16401. Section 16401 states, a contestant shall file a written statement in cases other than a tie involving a bribe or reward within six months of the date of declaration of the result of the election, in the case of a tie, 20 days, in a case involving presidential electors, 10 days, and in all other cases, within 30 days of the declaration of the result of the election. Cal. Elec. Code § 16401.
Court procedures and a court's duties in a post-election conflict are set forth in sections 16440 - 16742 of the Elections Code. A contestant must file an affidavit with the superior court within five days after the completion of the official canvass. Cal. Elec. Code § 16462. The contestant on the date of filing shall also send by registered mail a copy of the affidavit to the defendant. (Id.) If the defendant appears before the court, then the defendant will have three days from the time and place set for hearing to answer contestant's affidavit. Cal. Elec. Code § 16467. If the defendant does not appear, the court shall note his default, and shall proceed to hear and determine the contest with all convenient speed. (Id.)
Timelines for judicial decisions, judgments and determinations are laid out in sections 16600-16603. Before a trial for a post-election contest begins, a court may continue the trial for any time not to exceed 20 days if good cause is shown by any party upon affidavit. Cal. Elec. Code § 16600. During a trial, the court's determination of the election contest shall be governed by those rules of law and evidence that govern questions of law and fact, so far as they may be applicable. Cal. Elec. Code § 16602. A court has discretion to dismiss the proceedings if the statement of the cause of the contest is insufficient, or for want of prosecution. (Id.) After hearing the proofs and allegations of the parties and within 10 days after the submission thereof, the court shall file its findings of fact and conclusions of law, and shall immediately pronounce its judgment. Cal. Elec. Code § 16603. That judgment shall be entered immediately. (Id.)
If the elections official has issued any certificate of election to any other person than the one declared elected by the court, or if the court finds there was a tie vote in a general election, then the certificate presented by the elections official is annulled by the court judgment. Cal. Elec. Code § 16701. If the court decision deals with a post-election conflict that does not entail a recount of ballots, then any party may appeal to the district court of appeals, if the appeal is brought within 10 days of the superior courts judgment. Cal. Elec. Code § 16920. If on the other hand, the court decided a post-election disputed that entailed a recount, the judgment of the court is final in every respect. Cal. Elec. Code § 16940. No party may appeal such a judgment. (Id.)
B. Changes Proposed by Proposition 43
Proposition 43 would amend the California Constitution by adding § 2.5 to Article II, which would state, "A voter who casts a vote in an election in accordance with the laws of this state shall have that vote counted." Cal. Sen. ACA 9, 2001-2002 Reg. Sess. at pg. 1. It appears that the intent and purpose of Proposition 43 is to secure the right to vote as set forth in the California constitution by providing a constitutional basis upon which to enforce the duty to have a vote counted that is cast in an election in accordance with state law. Ltr. from Romulo L. Lopez, Dep. Legis. Counsel, Legis. Counsel of Cal., (May 23, 2001) (on file with McGeorge School of Law, University of the Pacific, California Initiative Review). Therefore, Proposition 43 changes the law by making the assumption that your vote will be counted into a constitutional right.
1. Proponents of Proposition 43
According to the proponents of Proposition 43, neither the United States Constitution nor the California Constitution guarantees a voter that his vote shall be counted. This is an issue that the American voter had to confront for the first time in the aftermath of the 2000 Presidential election. Cal. Sen. Rules Comm., ACA 9 at pg. 1. American voters became aware of the fact that ballots that were cast in accordance with state laws were nevertheless uncounted. The American electorate seemed dumbfound by the realization that a vote cast in an American election was not counted towards its intended candidate. The more startling revelation - this was legal.
The argument is then made that the right to vote is inconsequential if a voter cannot be confident that his or her vote will be properly recorded and tabulated. (Id.) Therefore, proponents of Proposition 43 offer this measure to remedy this anomaly in California. Proposition 43 creates a constitutional right to have your vote counted. Proposition 43 clarifies that when there is a post-election conflict and absent compelling justification otherwise, the complete and accurate tabulation of votes cast in accordance with state law should take precedence over statutory provisions related to the conduct of elections. (Id.) Proponents argue this Proposition is the only way to assure California voters their right to vote actually means something, a right enforceable in a court of law. (Id.)
2. Opponents of Proposition 43
On April 17, 2001, the American Civil Liberties Union (ACLU) and other parties filed a lawsuit against Secretary of State, Bill Jones, alleging that the "absence of constitutionally adequate statewide standards and procedures for voting equipment and recounts" resulted in "widespread violations of the voting rights of California citizens." Cal. Sen. Rep. Policy and Fiscal Comm., ACA 9, 2001-2002 Reg. Sess. 1 (July 23, 2001). Opponents of this measure argue that Proposition 43 is merely a feel good measure and an attempt to quell the complaints of the ACLU. (Id.) They base their opposition on statements made by Secretary of State, Bill Jones, "our election process - and the right of each voter to have his/her vote counted - is not in jeopardy." (Id.) Therefore, opponents argue that this measure is unnecessary. (Id.) They allege that Proposition 43 along with its companion measure AB 733 formally place into our state's constitution a right that our current election system already recognizes. (Id.) (emphasis added). Opponents of Proposition 43 concede that AB 733 would make a slight change to statutory post-election deadlines in order to ensure that votes are tabulated completely and accurately. (Id.)
C. Changes Proposed by AB 733
Assembly Bill 733 (Longville) is the companion measure of ACA 9 (Longville). This bill would not become operative unless Proposition 43 is adopted by the California voters. Cal. Assembly 733, 2001-2002 Reg. Sess. at 1. That is, the enactment of AB 733 is conditioned upon the adoption of Proposition 43. If Proposition 43 fails at the polls - then AB 733 will not become the law and the status quo will remain in place.
The primary purpose of AB 733 is to provide guidance in interpreting the newly proposed section to the California Constitution found in ACA 9 (Longville) which states that, "A voter who casts a vote in an election in accordance with the laws of this state shall have that vote counted." Cal. Sen. Elections and Reapportionment Comm., AB 733 at pg. 1. Specifically, this measure provides that if a post-election deadline imposed by the Elections Code prevents the proper tabulation or recounting of ballots, the county elections official may petition the superior court for an extension of that deadline sufficient to permit the tabulation or recounting of ballots. (Id.) The court may grant the petition if it finds that the time limitation would prevent the counting of all votes as required by the proposed amendments to the Constitution. (Id.)
AB 733 expressly provides that if a post-election deadline imposed by the California Elections Code prevents the proper tabulation or recounting of ballots, the county elections official of the affected county may petition the superior court of that county for an extension sufficient to permit the tabulation or recounting of ballots. Cal. Assembly 733, 2001-2002 Reg. Sess. at 1. AB 733 would further allow the court to grant such a petition if the court finds that the time limitations would prevent the counting of all votes as required by Proposition 43. (Id.) The principal changes made by AB 733 are the express rights of a county election official to petition for an extension and the express power of a court to grant such a petition if it feels such an extension is necessary. AB 733 resolves the question of whether statutory election deadlines take precedence over the tabulation of ballots, and finds that the accurate tabulation and recounting of ballots is the more important event.
AB 733 states, "the court may grant the petition if it finds that the time limitation would prevent the counting of all votes as required by the proposed amendment to the Constitution." Cal. Sen. Elections and Reapportionment Comm., AB 733 at 1. This language is viewed as limiting the expansive scope of ACA 9 by placing the power of extending a deadline within a court's discretion. Interview with Ethan Jones, Legis. Asst. to Cal. Assemblymember John Longville (Nov. 2, 2001) (emphasis added). AB 733 does not expound on what factors a court should take into consideration when determining whether an extension of a deadline would be an appropriate action. (Id.) This was an intentional omission on the author's behalf because he did not want to dictate to the court the instances when an extension would be proper and when it would not be proper. (Id.) Does this omission open the door for inconsistent rulings? Would it not benefit the courts to garner some insight into what the Legislature would deem a worthy situation for the granting of an extension?
It is also arguable that AB 733 expands the scope of Proposition 43 through its very broad definition of the term "vote." (Id.) AB 733 defines the term "vote" to include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, voter registration, any other act prerequisite to voting, casting a ballot, and having the ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public office and ballot measures. Cal. Sen. Elections and Reapportionment Comm., AB 733 at 2. This expansive definition of the term "vote" seemingly has no effect on the petition for an extension, since AB 733 is clear, an extension would be granted for the accurate tabulation or recounting of ballots not votes. Cal. Assembly 733, 2001-2002 Reg. Sess. at 1 (emphasis added). Why then did the author feel it necessary to define the term "vote" in such an expansive manner?
Another potential drafting issue is the omission from the language of AB 733 that it is in fact a limitation on the scope of Proposition 43. If it is not clear within the language of AB 733 how would someone know that the author intended it to be a limitation? Interview with Ethan Jones. The intent of the author is not made clear in the language of AB 733, and Proposition 43 grants an extremely expansive constitutional right. Will this ambiguity create additional litigation for our already overburdened judicial system?
Although Proposition 43 has seen very little, if not, non-existent opposition in its journey through the California Legislature, it is nevertheless appropriate to analyze whether this measure raises any constitutional concerns. As the Supreme Court stated, "The voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation." Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 295 (1981).
Proposition 43 guarantees that "a voter who casts a vote in an election in accordance with the laws of this state shall have that vote counted." Cal. Sen. ACA 9, 2001-2001 Reg. Sess. at 1. What would the result be if a majority of California voters who were at least 18 years of age and resided within the state voted for Mickey Mouse? Does not Proposition 43's language, that each vote will be counted mean that Mickey Mouse would become an elected official? Would the language of Proposition 43 require counties to count write-in votes for candidates who have not qualified as write-in candidates or to otherwise count votes that are prohibited from being counted under existing law? Ltr. from Romulo L. Lopez at pg. 1. The answer to these questions would seemingly be negative.
A court will construe constitutional enactments in a manner that comports with reason, avoids absurd results, and fulfills the apparent intent of the framers. City of Costa Mesa v. Connell, 74 Cal.App.4th 188, 195 (1999). California law specifies the conditions under which a vote for a write-in candidate is required to be counted. Ltr. from Romulo L. Lopez at pg. 2. If a write-in candidate desires to have his or her name as written on the ballot of an election counted for a particular office, he or she must adhere to specified procedures, including filing a statement or write-in candidacy, along with the requisite signatures on nomination papers, if any, within specified time periods. (Id.) A name written on a ballot in any election may not be counted for an office or nomination unless the write-in candidate has complied with these requirements. (Id.)
Proposition 43 may also be interpreted to read that every vote that is cast in an election, whether valid or not, must be counted by the election official in charge of the election. (Id.) This interpretation of Proposition 43 would assume that the intent behind Proposition 43 is to override existing state law that prescribes the procedures for the counting of votes. (Id.) The courts have stated that where statutory and constitutional provisions are in conflict, the Constitution must prevail. People v. Blankenship, 167 Cal.App.3d 840, 855 (1985). Proposition 43 expressly provides that a voter who casts a vote in an election must do so "in accordance with the laws of this state" and only then shall that voter have his vote counted. Ltr. from Romulo L. Lopez at pg. 3. It would seem then that nothing in the language of Proposition 43 would indicate or imply that a vote cast for an unqualified write-in candidate, or any other vote cast in contravention of state law, must be counted. (Id.)
Proponents of this measure argue that the right to have your vote counted is not specifically enumerated in the state Constitution and may lead to confusion as to what course of action should be taken when current statutory provisions would prevent a complete and accurate tabulation of ballots. Cal. Sen. Rules Comm., ACA 9 at pg. 1. Therefore, Proposition 43 was placed on the ballot to expressly enumerate that right and AB 733 expressly grants courts the discretion to extend post-election deadlines in order to comply with Proposition 43. Interview with Ethan Jones. There is no current statute or law that expressly grants courts the power to review petitions for and grant extensions of post-election deadlines. (Id.) Proponents argue that this mere change in law is a great step to alleviating confusion if and when there comes a time when all ballots are not accurately tabulated within the statutory deadlines. (Id.)
Opponents argue that Proposition 43 really does nothing substantive for the California electorate. (Id.) The mere fact that no one has ever petitioned for an extension of a post-election deadline does not mean that that right does not already exist. (Id.) In fact, opponents argue that it is a testament to our electoral system and the fact that an extension has never been asked for because it has never been needed. (Id.) Opponents concede that Proposition 43 elevates the right to have your vote counted to that of a constitutional right, but if there were an election where some votes could not be tallied within the existing statutory time frame - the only way to assure that all ballots be tabulated would be to petition the courts. But they argue that this is merely symbolic and carries no real weight. (Id.) Proposition 43 does not guarantee that once a petition for an extension is submitted that it will be granted. (Id.) It merely states that the courts may grant the petition. (Id.) The discretion is left up to the superior court judge without any guidance from the Legislature of what it believes would be a worthy situation for extending a post-election deadline. (Id.)
Proposition 43 purports to create voter confidence in California elections by assuring California voters that their vote will not be bypassed due to time constraints and statutory deadlines. (Id.) Proposition 43 gives the process of counting ballots a higher degree of importance than other statutory deadlines and obligations. (Id.) But does Proposition 43 really change existing law in any significant way? Although, the right to have your vote counted will be made a constitutional right, thereby granting a voter a cause of action in court, are there people today who would sue to ensure that their vote be counted? Perhaps. But even so, is there something in current law that precludes them from bringing such an action today? If a voter were to bring a petition for an extension today or after Proposition 43 is enacted, would there be a different result? The courts presumably would still be able to entertain the petition, since there is no law to the contrary, and the ultimate decision would be left to their discretion. Neither Proposition 43 nor its companion measure AB 733 set forth clear guidelines to advise or instruct the court on how to decide such an issue. It would seem that there are no clear benefits nor detriments to this Proposition and it's companion measure, AB 733.