BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 441 HEARING DATE:
6/16/09
AUTHOR: HALL ANALYSIS BY:
Darren Chesin
AMENDED: 4/2/09
FISCAL: YES
SUBJECT
Elections: prohibited activities
DESCRIPTION
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
business.
BACKGROUND
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
polling.
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
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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.
COMMENTS
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
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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
instance:
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
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POSITIONS
Sponsor: Author
Support: California Association of Clerks and Election
Officials (CACEO)
Oppose: None received
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