BILL ANALYSIS                                                                                                                                                                                                    

                           CONSTITUTIONAL AMENDMENTS
                          Senator Loni Hancock, Chair

          BILL NO:   AB 441                         HEARING DATE:  
          AUTHOR:    HALL                           ANALYSIS BY:      
          Darren Chesin
          AMENDED:   4/2/09
          FISCAL:    YES
          Elections: prohibited activities

           Existing law  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:

           Circulating an initiative, referendum, recall, or  
            nomination petition or any other petition;
           Soliciting a vote or speaking to a voter on the subject  
            of marking his or her ballot;
           Placing a sign relating to voters' qualifications or  
            speaking to a voter on the subject of his or her  
            qualification; or,
           Doing any electioneering.

           Existing law  provides that a person who violates any of the  
          above provisions is guilty of a misdemeanor. 

           Existing law  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 ballots.

           This bill  would additionally make it a misdemeanor to  
          solicit a donation of any kind or engage in commercial  
          activity within 100 feet of a polling place or an elections  
          official's office when a voter may be casting a ballot.

           This bill  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  

           What Constitutes Electioneering in California  ?  While the  
          term "electioneering" is not defined in the Elections Code,  
          the Secretary of State's (SOS) 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 SOS 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  

           Is Electioneering a Problem in California  ?  According to  
          the SOS'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 to and eventually resolved by the counties.  

           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  
          AB 441 (HALL)                                          Page  


          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 is 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  
          in preventing voter intimidation and election fraud.

           Types of 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  
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          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.

           1.According to the author  , while explicit electioneering is  
            prohibited within 100 feet of a polling place on Election  
            Day or at an election official's office, nothing in  
            current law prohibits an individual or group seeking to  
            influence or intimidate voters using a number of passive  
            means including the use of solicitation of donations or  
            engaging in commercial activity.

          AB 441 would expand upon 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 or  
            intimidation at a polling place.  Prohibiting these  
            activities will prevent an individual or group from  
            attempting to influence or intimidate a voter and expand  
            upon the spirit of the state's "100 foot rule," further  
            strengthening California's commitment to a free and fair  
            elections process.

           2.People Don't Intimidate Voters, Cookies Do  ?  This bill  
            rose out of an incident during the November 4, 2008  
            General Election.  Individuals who were working at a PTA  
            bake sale table located adjacent to a polling place  
            located on a public school campus were making audible,  
            disparaging remarks about other nearby people who were  
            demonstrating (at a legal distance) regarding their  
            position on a statewide ballot measure.  A member of the  
            author's staff witnessed this and informed the PTA  
            members, to no avail, that such remarks were in violation  
          AB 441 (HALL)                                          Page  


            of the "100 foot rule."

          Given the fact that the PTA members in this case were  
            indeed probably violating the existing prohibition  
            against electioneering within 100 feet of a polling  
            place, it is unclear why this bill is necessary.  The  
            "commercial activity" of selling baked goods or the  
            seeking of donations is irrelevant to the issue of  
            whether or not electioneering occurred.  In fact, this  
            bill could lead to some ridiculous situations, for  

                 Staffing a PTA bake sale table within 100 feet of a  
               polling place would constitute a misdemeanor but a PTA  
               membership recruiting table where no money is  
               exchanging hands would be legal and permissible.

                 The same PTA bake sale table could be legally  
               located within 100 feet of a polling place under this  
               bill so long as the PTA had, or intends to hold, a  
               similar bake sale on at least one day other than  
               Election Day.

                 No polling place could be located within 100 feet  
               of any place where donations of any kind are being  
               solicited such as a Goodwill or Salvation Army  
               drop-off site or possibly even the office of a church.

           3.SOS Concerns  .  The SOS has expressed concerns in a letter  
            to the author that AB 441, which targets activities that  
            could theoretically present an opportunity for  
            electioneering not on the practice of electioneering  
            itself, is neither equitable nor will it meet the goal  
            she assumes the author is attempting to accomplish.  

           4.Related Legislation  :  AB 1337 (Evans), also being heard  
            in this committee today, provides for a statutory  
            definition of "electioneering." 

                                   PRIOR ACTION
          Assembly Elections and Redistricting Committee:  7-0
          Assembly Appropriations Committee:       16-0
          Assembly Floor:                          78-2
          AB 441 (HALL)                                          Page  



          Sponsor: Author

           Support: California Association of Clerks and Election  
                   Officials (CACEO)

           Oppose:  None received

          AB 441 (HALL)                                          Page