BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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.











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          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:  









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          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,  









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            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  









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            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  









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            (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  









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            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  









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            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:











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               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.












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               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  









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            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)













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          Opposition


          Howard Jarvis Taxpayers Association




          Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094