BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 441
                                                                  Page 1

          Date of Hearing:  April 21, 2009

                                  Paul Fong, Chair
                      AB 441 (Hall) - As Amended:  April 2, 2009
          SUBJECT  :   Elections: prohibited activities. 

           SUMMARY  :   Prohibits a person, on election day, or at any time  
          that a voter may be casting a ballot, from soliciting a donation  
          of any kind or engaging in commercial activity within 100 feet  
          from the polling place or an elections official's office.   
          Specifically,  this bill  :  

          1)Defines "commercial activity" as any activity or action  
            undertaken only on election day, in whole or in part by a  
            business or an individual whose purpose, in whole or in part,  
            directly or indirectly, is to derive or realize a present or  
            future financial gain for the individual or business.  

          2)Provides that a person who solicits a donation or engages in  
            commercial activity within 100 feet from the polling place or  
            an elections official's office when a voter may be casting a  
            ballot is guilty of a misdemeanor. 

          EXISTING LAW:  

          1)Prohibits a person, on election day, or at any time that a  
            voter may be casting a ballot, within 100 feet of a polling  
            place or an elections official's office from:

               a)     Circulating an initiative, referendum, recall, or  
                 nomination petition or any other petition;

               b)     Soliciting a vote or speaking to a voter on the  
                 subject of marking his or her ballot;

               c)     Placing a sign relating to voters' qualifications or  
                 speaking to a voter on the subject of his or her  
                 qualification; or,

               d)     Doing any electioneering.

          2)Provides that a person who violates any of the above  
            provisions is guilty of a misdemeanor.


                                                                  AB 441
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          3)Defines "100 feet of a polling place or an elections  
            official's office" as the distance 100 feet from the room or  
            rooms in which voters are signing the roster and casting  

           FISCAL EFFECT  :   Unknown.  State-mandated local program;  
          contains a crimes and infractions disclaimer.


                                                                 AB 441
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          COMMENTS  :   

           1)Purpose of the Bill  :  According to the author:
                AB 441 would expand up on the state's "100 foot rule" to  
               prohibit an individual from soliciting a donation or  
               engaging in commercial activity within 100 feet of a  
               polling place on Election Day or at an election official's  
               office.  Voters should be free of any outside influence at  
               a polling place.  Prohibiting these activities will prevent  
               an individual or group from using deceptive means to  
               actively or passively influence a voter and expand upon the  
               spirit of the state's "100 foot rule", further  
               strengthening California's commitment to a free and fair  
               election process.  

           2)What Constitutes Electioneering in California ? While the term  
            "electioneering" is not defined in the Elections Code, the  
            Secretary of State's office has taken the position that voters  
            who bring information into a polling place that advocates for  
            or against any candidate or measure on the ballot are indeed  
            engaged in "electioneering." In a September 2008 memo to  
            county elections officials, the Secretary of State wrote that  
            the topic of what constitutes "electioneering" at the polls on  
            election day and more specifically, whether a voter who wears  
            a campaign shirt, hat, button, or similar item into a polling  
            place is indeed electioneering and clarified that items that  
            do not advocate for or against a particular candidate or  
            measure, are not considered electioneering.  The memo also  
            referenced the poll workers' need to understand the difference  
            between electioneering and public opinion polling. 

           3)Is Electioneering a Problem in California  :   According to the  
            Secretary of State's, Elections Investigative Unit, between  
            the periods of 1994 to 2008, there were 48 cases of  
            electioneering reported.  Of the 48 reported cases, two were  
            sent to the District Attorney's office for prosecution with  
            one of the cases ending in prosecution and a conviction in  
            1997. During the November 2008 General Election, the agency's  
            election hotline reported 65 complaints of electioneering.   
            However, most cases were reported and eventually resolved by  
            the counties.  This bill attempts to address the issue of  
            indirect or passive electioneering tactics which could  
            persuade or influence a voter.  However, to the committee's  
            knowledge, there have not been widespread reports of "passive  


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            or indirect electioneering" attempts.  

          4)Relevant Electioneering Court Cases  :  The State and federal  
            courts in recognizing that states have an interest in  
            preserving the integrity of the election process, have upheld  
            generally applicable and even handed restrictions that protect  
            the integrity and reliability of the electoral process.  In  
            California, the issue of electioneering arose before the  
            Mendocino County Superior Court in 1998 in the case of SPEAK  
            UP!, et al. v. Marsha A. Young.  The plaintiff sought a  
            preliminary injunction after the county Registrar of Voters  
            deemed their attempt to wear buttons advocating for a  
            particular candidate in the polling place constituted  
            "electioneering".  Although the case does not serve as  
            precedent in the remaining 57 counties, the court did frame  
            the issue as follows:

               This 'thoughtful/quiet zone' where no further political  
               bombardment can occur actually protects and safeguards even  
               petitioners' own political free speech.  Exercising one's  
               right to vote to elect one's leaders and enact laws is the  
               ultimate unrestricted political free speech.  The temporary  
               (five to ten minute) covering or removal of political  
               buttons in the limited polling areas while voting is a very  
               slight inconvenience necessary to safeguard a free and  
               untainted electoral process.  This protected right and  
               process underlies and it interwoven with all other rights. 
            The judge in this case based his ruling on the U.S. Supreme  
            Court's 1992 decision in Burson v. Freeman, which dealt with a  
            broader question of whether a Tennessee law banning the  
            display and distribution of campaign materials within 100 feet  
            of a polling place was constitutional.  The Court ruled that  
            the statute was indeed constitutional, concluding in part:

               In sum, an examination of the history of election  
               regulation in this country reveals a persistent battle  
               against two evils: voter intimidation and election fraud.   
               After an unsuccessful experiment with an unofficial ballot  
               system, all 50 States, together with numerous other Western  
               democracies, settled on the same solution: a secret ballot  
               secured in part by a restricted zone around the voting  
               compartments.  We find that this widespread and time-tested  
               consensus demonstrates that some restricted zone is  
               necessary in order to serve the States' compelling interest  


                                                                  AB 441
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               in preventing voter intimidation and election fraud.  

           5)Various Polling Places in California  :  By law, at least 29  
            days before an election, a county elections official is  
            required to establish precincts and polling places within his  
            or her county.  Possible polling places could include schools,  
            churches, private residences and fire stations.  For example,  
            during the November 2008 general election, Sacramento County  
            established over 500 polling places throughout the county.   
            Those polling places included churches, community centers,  
            senior facilities, mobile home parks, fire stations,  
            government buildings, association club houses, schools,  
            apartment club houses and business conference rooms.   

          6)Related Legislation  :  AB 1337 (Evans), also being heard in  
            this committee today, defines  
             "electioneering" as bringing any readily visible information  
            into a polling place, an elections official's office, a  
            satellite location or within 100 feet of a polling place, an  
            elections official's office, or satellite location, that  
            advocates for or against any candidate or measure on the  
            ballot, and specifies that prohibited information includes,  
            but is not limited to, buttons, hats, pencils, pens, shirts,  
            signs, and stickers. 


          None on file.

          None on file.
          Analysis Prepared by  :    Qiana Charles / E. & R. / (916)