BILL ANALYSIS Ó
AB 1494
Page 1
ASSEMBLY THIRD READING
AB
1494 (Levine)
As Amended January 14, 2016
Majority vote
------------------------------------------------------------------
|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Elections |4-3 |Ridley-Thomas, |Harper, Travis |
| | |Gordon, Mullin, |Allen, Gatto |
| | |Nazarian | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |14-3 |Gomez, Bloom, |Bigelow, Jones, |
| | |Bonilla, Bonta, |Wagner |
| | |Calderon, Chang, | |
| | |Daly, Eggman, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
| | |Holden, Quirk, Weber, | |
| | |Wood | |
| | | | |
| | | | |
------------------------------------------------------------------
AB 1494
Page 2
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.
EXISTING LAW 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.
FISCAL EFFECT: According to the Assembly Appropriations
Committee, negligible fiscal impact.
COMMENTS: 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."
California Constitution Article II, Section 7 provides, "Voting
AB 1494
Page 3
shall be secret." Notably, 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. Perhaps
most relevant for the purposes of this bill, since at least
1891, state law has prohibited 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 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.
Two recent decisions by federal courts have questioned the
constitutionality of laws that make it illegal for voters to
take and share photographs of their marked ballots. In both
cases, 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." In its decision, the
court concluded that New Hampshire's law violated the First
AB 1494
Page 4
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." An
appeal of that case is pending in the United States Court of
Appeals for the First Circuit.
In October 2015, the United States District Court for the
Southern District of Indiana, Indianapolis Division, enjoined
the enforcement of an Indiana law that makes it illegal for a
voter to take a digital image or photograph of his or her ballot
while in a polling place or other voting location, or to
distribute or share such an image by social media or other
means. 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.
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 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.
Please see the policy committee analysis for a full discussion
of this bill.
AB 1494
Page 5
Analysis Prepared by:
Ethan Jones / E. & R. / (916) 319-2094 FN:
0002569