BILL ANALYSIS Ó
AB 1494
Page 1
Date of Hearing: January 13, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 1494
(Levine) - As Amended January 4, 2016
SUBJECT: Voting: marked ballots: distributing and sharing
photographs and digital images.
SUMMARY: Authorizes voters to take and share photographs of
their marked ballots. Specifically, this bill:
1)Authorizes a voter to take a photograph or digital image of
his or her marked ballot and distribute or share the
photograph or image using social media or by any other means.
2)Provides that a photograph or digital image taken and
distributed or shared pursuant to this bill shall not be used
to coerce or intimidate a voter, impede a voter's ability to
vote, cause voter delay in a polling place, disrupt a polling
place, or result in a monetary or tangible benefit for any
purpose.
3)Makes corresponding and technical changes.
AB 1494
Page 2
EXISTING LAW:
1)Provides that voting shall be secret.
2)Prohibits a voter from showing his or her ballot to any
person, after the ballot has been marked, in such a way as to
reveal the ballot's contents.
3)Prohibits a person other than an elections official or member
of a precinct board, except as specified, from receiving a
voted ballot from a voter or from examining or soliciting the
voter to show his or her voted ballot. Provides that a
violation of this prohibition is punishable by imprisonment, a
fine, or both, as specified.
4)Prohibits a person from interfering or attempting to interfere
with the secrecy of voting. Provides that a violation of this
prohibition is punishable by imprisonment, as specified.
5)Permits the Secretary of State, the Attorney General, and any
local elections official in the county in which the act
occurs, to bring a civil action against any individual,
business, or other legal entity that interferes or attempts to
interfere with the secrecy of voting. Provides that a civil
action brought pursuant to this provision may result in a
civil penalty and injunctive relief, as specified.
FISCAL EFFECT: Unknown
COMMENTS:
AB 1494
Page 3
1)Prior Consideration of This Bill: This bill was previously
heard by this committee in April of last year. At the time,
this bill would have imposed a fee on specified independent
expenditures made in connection with candidates for elective
state office or state measures. A motion to pass that version
of this bill out of the committee failed to receive a second,
and as a result, the bill was held in this committee.
Subsequent to its failure in committee, the prior contents of
this bill were deleted and the current contents were added.
2)Purpose of the Bill: According to the author:
AB 1494 allows California voters to take ballot
selfies and post them on social media. A ballot selfie
is a [digital] image of a person's marked ballot.
Social media is a great tool for voters to share their
civic participation. California law should encourage
voter pride, political speech, and civic engagement
through social media. Laws prohibiting photos of one's
marked ballot were written before sharing digital
images over the internet was ubiquitous. AB 1494
updates the law to reflect technology and the world in
which we now live.
3)Constitutional Guarantee of Secret Voting and Related
Statutes: Article II, Section 7 of the California
Constitution provides, "Voting shall be secret." Notably,
AB 1494
Page 4
while this constitutional provision protects the right of a
voter to cast a secret ballot, it also reflects distinct state
interests in keeping voting secret. Requiring a secret ballot
helps protect the integrity of the voting process by making it
impossible to verify the votes cast by any single voter,
thereby protecting against vote buying schemes and voter
intimidation or coercion.
The California Elections Code contains a number of provisions
that are intended to protect the secrecy of voting. For
example, state law limits the persons who are allowed within
the voting area at a polling place and prohibits more than one
person from occupying a voting booth at any time, except in
situations where a voter needs assistance in casting a ballot.
Perhaps most relevant for the purposes of this bill, state
law prohibits a voter from showing his or her ballot to any
person in such a way as to reveal the ballot's contents after
it has been marked. This provision can protect a voter from
being coerced or intimidated into showing his or her marked
ballot, thereby safeguarding the voter's right to cast a
secret ballot. Furthermore, this provision protects against
vote buying schemes by prohibiting a voter from providing
proof of his or her vote selections.
The state law prohibiting a person from showing his or her
marked ballot to any person in such a way as to reveal the
ballot's contents has been in effect in various forms since at
least 1891, and does not explicitly address the issue of
voters taking photographs of their completed ballots.
Nonetheless, the law arguably could apply to a person who
takes a photograph of his or her ballot and shows that
photograph to another person or posts that photograph on the
Internet, through social media or other means.
Notwithstanding the potential that state law could be
interpreted in such a manner, committee staff is unaware of
any instance in which a person has been prosecuted in
California for taking a photograph of his or her completed
AB 1494
Page 5
ballot and sharing that photograph or posting it on the
Internet. In fact, the Secretary of State's office indicates
that they have no records of a voter ever having been
prosecuted in the state for showing his or her marked ballot
to another person.
This bill would expressly provide that the existing law
prohibiting a voter from showing his or her completed ballot
to another person does not prohibit a person from taking a
photograph of his or her completed ballot and sharing that
photograph. The author argues that authorizing "ballot
selfies" will protect the free speech rights of voters and
allow voters to promote civic participation through social
media.
On the one hand, authorizing these "ballot selfies" arguably
could help facilitate vote buying schemes and voter coercion
or intimidation because a voter could use a "ballot selfie" to
document the way that he or she marked the ballot. On the
other hand, it is unclear whether ballot selfies would be an
effective way to conduct vote buying schemes or voter coercion
or intimidation. For one thing, a photograph of a marked
ballot does not necessarily provide proof of the way a person
actually voted-rather, it simply reflects the manner in which
the ballot was marked at a particular point in time. If a
voter subsequently changed his or her vote on that ballot, a
photograph would not reflect that fact. Furthermore, with the
widespread use of vote by mail (VBM) voting, it is difficult,
if not impossible, for elections officials to ensure that VBM
voters do not reveal the contents of their completed ballots
to other persons. The Secretary of State's office indicates
that they have no records of any complaints being made about
cell phones or other photographic methods being used in vote
buying schemes, or to coerce or intimidate voters.
4)Use of Cameras at Polling Places: At several recent elections
AB 1494
Page 6
(including, most recently, the November 2014 statewide general
election), the California Secretary of State's office has sent
a memo to county elections officials outlining the office's
position that "the use of cameras or video equipment at
polling places is prohibited" though the memo notes that
elections officials could permit such photography under
certain circumstances (such as a media organization filming a
candidate voting at a polling place). In supporting this
conclusion, the memo references numerous state laws including
the constitutional requirement that voting shall be secret and
statutory provisions that limit the persons who are permitted
in the area of the voting booths while the polls are open,
prohibit a voter from showing his or her ballot to any other
person after it has been marked, and prohibit a person from
photographing or video recording a voter entering or exiting a
polling place within 100 feet of the polling place with the
intent of dissuading another person from voting. The memo
concludes that with these laws, "the Legislature and the
Governor have sought to make the voting process private and
free from any form of intimidation or coercion."
Because this bill expressly provides that a voter may take a
photograph or digital image of his or her marked ballot, it is
unclear whether California elections officials would be
justified in continuing to take the position that the use of
cameras or video equipment at polling places is prohibited.
Although this bill prohibits a photograph or digital image
taken pursuant to its provisions from being used "to coerce or
intimidate a voter," among other provisions, it is unclear
whether a more widespread presence and use of cameras at the
polling place could nonetheless dissuade certain voters from
participating in an election.
5)Other States and Recent Federal Case Law: As background in
support of this bill, the author points to two recent
decisions by federal courts that questioned the
AB 1494
Page 7
constitutionality of laws that make it illegal for voters to
take and share photographs of their marked ballots. In both
cases, those states had enacted laws that were specifically
designed to prohibit voters from taking photographs or digital
images of their ballots and distributing or sharing those
images.
In August 2015, the United States District Court for the
District of New Hampshire invalidated a New Hampshire law that
prohibits a voter from "taking a digital image or photograph
of his or her marked ballot and distributing or sharing the
image via social media or by any other means." The New
Hampshire law was enacted in 2014 as an amendment to the
state's law that prohibits a voter from allowing his or her
ballot to be seen by any person with the intention of letting
it be known how that person was about to vote. The author of
the law indicated that he had introduced the bill "to prevent
situations where a voter could be coerced into posting proof
that he or she voted a particular way." In its decision, the
court concluded that New Hampshire's law violated the First
Amendment rights of voters by imposing "a content-based
restriction on speech that deprives voters of one of their
most powerful means of letting the world know how they voted."
In reaching its decision, the court noted that there was no
evidence of vote buying or voter coercion in New Hampshire
since the late 1800s, and that "[n]either the legislative
history of the new law nor the evidentiary record compiled by
the parties provide support for the view that voters will be
either induced to sell their votes or subjected to coercion if
they are permitted to disclose images of their ballots to
others." The New Hampshire Secretary of State subsequently
appealed the district court's decision. The appeal is pending
in the United States Court of Appeals for the First Circuit.
In October 2015, the United States District Court for the
AB 1494
Page 8
Southern District of Indiana, Indianapolis Division, issued a
preliminary injunction enjoining the enforcement of an Indiana
law that makes it illegal for a voter to take a digital image
or photograph of the voter's ballot while the voter is in a
polling place or other official location (such as a vote
center or the elections official's office) at which the voter
may cast a ballot in person, or to distribute or share such an
image by social media or other means. Unlike the New
Hampshire law, the Indiana law also applied to unmarked
ballots. Much like in the New Hampshire case, the court noted
that Indiana had "failed to demonstrate any current, ongoing
or actual problem posed by or related to vote buying, much
less a problem shown to be based on the use of digital
photography to facilitate vote buying." The court thus
concluded that Indiana's law violates the First Amendment of
the United States Constitution. The Indiana Secretary of
State has not yet indicated whether it will appeal the
district court's decision.
By contrast to the laws in New Hampshire and Indiana that
specifically prohibited voters from taking photographs or
digital images of their ballots and distributing or sharing
those images, at least two states recently took steps to
clarify that "ballot selfies" are permitted in those states.
In Utah, House Bill 72 of 2015 made it a misdemeanor for a
person to take a photograph of someone else's ballot at a
polling place, but also expressly allows an individual to
share a photograph of his or her own completed ballot.
Arizona's Senate Bill 1287 of 2015 prohibited a person from
taking photographs or videos within 75 feet of a polling
place, but also expressly allowed a voter to share an
electronic image of his or her own ballot.
6)Arguments in Support: Secretary of State Alex Padilla, who
has a "support if amended" position on this bill, writes:
AB 1494
Page 9
I support the goal of AB 1494 (Levine) to protect the
right of citizens to engage in political speech, while
also protecting the integrity of our elections and
each voter's right to privacy.
AB 1494 highlights the need for ongoing review of
election laws, policies, and practices established
before the advent of smartphones and other new
technologies. Online voter registration and apps to
help people find a polling place and access election
information on mobile devices are new tools that make
it easier to vote. Smartphones also have led to
"ballot selfies," which two federal courts in other
states have recognized as political speech protected
by the First Amendment and one of the most powerful
means for voters to tell the world how they voted.
While embracing the potential of new technologies, we
must also preserve the integrity of our elections and
each voter's right to privacy and a secret ballot. As
the court that struck down New Hampshire's ban on
"ballot selfies" stated, "few, if any, rights are more
vital to a well-functioning democracy than either the
right to speak out on political issues or the right to
vote free from coercion and improper influence." AB
1494 seeks to protect all of these rights.
AB 1494
Page 10
I look forward to working with the author on
amendments to clarify how this bill would apply to the
growing number of citizens who vote by mail and to
provide clear direction for both voters and elections
officials regarding the use of smartphones and other
cameras in polling places.
7)Arguments in Opposition: In opposition to this bill, the
Howard Jarvis Taxpayers Association writes:
Existing law prohibits a voter from showing their
ballot after it is completed. AB 1494 would authorize
voters to take and share a photo on social media of
their ballot.
Notwithstanding provisions of AB 1494 that appear to
prohibit these photos from being used to coerce,
manipulate, or otherwise impede a voter's ability to
vote, we still must oppose this bill. It is a
constitutional right that "voting be done in secret."
Any process that has the potential to alter the
integrity of the ballot should be refrained from.
Current law on this subject is unambiguous and there
is no compelling reason to diminish that clarity at
the potential risk of one's privacy.
8)Double-Referral: At the time this bill was originally
referred to policy committee, it was double-referred to the
AB 1494
Page 11
Assembly Revenue & Taxation Committee. Subsequent to that
referral, this bill has been gutted-and-amended to deal with a
different subject. Based on those amendments, the Assembly
Rules Committee has indicated that the bill no longer needs to
be double-referred to the Assembly Revenue & Taxation
Committee. Instead, this bill should be reported out to the
Assembly Appropriations Committee if it is approved by this
committee.
9)Upcoming Deadlines and Amendments: Due to impending committee
deadlines, if this bill is approved in this committee today,
it would need to be heard in the Assembly Appropriations
Committee next week, absent a waiver of the Joint Rules.
However, if this bill is amended in committee today, that may
prevent this bill from being heard in the Assembly
Appropriations Committee before next week's deadline for
committees to hear and report two-year bills. In light of this
fact, if it is the committee's desire to approve this bill
with amendments, committee staff recommends that this bill be
passed out of committee with the author's commitment to take
those amendments subsequent to passage by this committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Secretary of State Alex Padilla (if amended)
AB 1494
Page 12
Opposition
Howard Jarvis Taxpayers Association
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094