AB 969 is in Direct Conflict with the California Constitution
California State Capitol
The Legislature is seeking to pass AB 969 as an urgency statute which will go into effect immediately. The new version of AB 969 reads:
“This bill would prohibit an elections official from performing a manual vote count in a semifinal official canvass pursuant to the above procedures in any contest in which there are more than 1,000 eligible registered voters as of 154 days in advance of an election. The bill would only allow an elections official to conduct a manual vote count for a semifinal official canvass in a precinct pursuant to the above procedures if the count is conducted pursuant to a plan approved by the Secretary of State. The bill would require the Secretary of State to adopt regulations regarding manual vote counts.”
However, the bill, as of June 26, 2023, violates Article IV, section 8(d) of the California Constitution, which states (emphasis added):
Urgency statutes are those necessary for immediate preservation of the public peace, health, or safety. A statement of facts constituting the necessity shall be set forth in one section of the bill. In each house the section and the bill shall be passed separately, each by roll call vote entered in the journal, two thirds of the membership concurring. An urgency statute may not create or abolish any office or change the salary, term, or duties of any office, or grant any franchise or special privilege, or create any vested right or interest.
A Change in Duties
First, AB 969 does change the duties of both the Secretary of State and County Registrars of Voters. In fact, the Legislative Counsel's Digest on the bill states: “By requiring local elections officials to perform additional duties, this bill would impose a state-mandated local program.”
Under AB 969, changes in duties of the Registrar of Voters (ROV) include:
A new duty to create a manual tally plan to be approved by the Secretary of State (proposed Elections Code section 15270.1)
A new duty to use a computerized Voting System to tally votes (proposed Elections Code section 19207.5(a)(2)). Currently, use of a Voting System is not compulsory. An ROV has a duty to tally votes, but not a duty to use a computerized Voting System. An ROV wishing to perform a full manual tally may do so under existing Elections Code section 15270 et seq.
A new duty to provide DRE voting systems for voters with disabilities (proposed Elections Code section 19207.5(a)(1)). The association of equal accessibility for voters with disabilities with computerized voting machines to cast ballots is a fabrication. Neither the Americans with Disabilities Act (ADA) nor the Help America Vote Act (HAVA) section cited require states or counties to provide special voting machines to voters with disabilities, if voting machines are not provided to the general public.
Under AB 969, changes in duties of the Secretary of State include:
Review a manual tally plan for approval; reject or approve the plan (proposed Elections Code section 15207.1)
Draft specific regulations on hand counting (proposed Elections Code section 15207.2). While the Secretary of State currently has a duty to adopt regulations as described in Government Code section 12172.5, there is currently no enabling statute that gives her the duty nor authority to draft specific regulations “regarding manual vote counts”.
If the Legislature wishes to assign these new duties to the County Registrars of Voters and the Secretary of State, they may not do so via an urgency statute.
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Special Privilege
Second, the question of special privilege. The definition of special privilege is: “a legally endorsed privilege granted exclusively to some individual or group” (Collins dictionary), or “an economic or other benefit of any kind that inures to the person and is not equally available to similarly situated members of the general public” (Law Insider). AB 969 creates a guaranteed market for voting system manufacturers, a market which is not available to the general public. Again, if the Legislature intends to create a guaranteed market for a small handful of corporations, in this case Voting System manufacturers, they may not do it via an urgency statute.
AB 969 Violates the California Constitution
AB 969 has been drafted in haste as a knee-jerk reaction to block the recent actions of Shasta County Supervisors who felt their constituents were best represented by returning to a manual tally of votes. The bill violates the California Constitution’s provisions for urgency statutes and disregards the concerns of a growing number of voters who want to return to a manual tally of votes.
The author of AB 969, Assemblywoman Gail Pellerin (D - Santa Clara), is the former Registrar of Voters for Santa Cruz County, having served in that capacity for nearly three decades. Co-authors of the bill include Assembly Members Marc Berman (D - Campbell), Alex Lee (D - Fremont), and Blanca Rubio (D - Baldwin Park).
AB 969 was heard in the Senate Governance and Finance Committee on June 28, 2023. Callers voicing opposition greatly outnumbered those voicing support. The bill passed through the committee by a 3-2 vote.