BILL ANALYSIS Ó
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: AB 1494 Hearing Date: 6/8/16
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|Author: |Levine |
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|Version: |6/1/16 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Frances Tibon Estoista |
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Subject: Voting: marked ballots.
DIGEST
Allows voters to take and share photographs of their marked
ballots.
ANALYSIS
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.
This bill:
Allows a voter to voluntarily disclose how he or she voted or
distribute an image of his or her own marked ballot if that
voluntary act does not violate any other law.
BACKGROUND
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
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situations where a voter needs assistance in casting a ballot,
or if the voter is accompanied by a child or children under the
age of 18 years, and under the voter's care. Existing law also
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.
Other States and Recent Federal Case Law : Two recent decisions
by federal courts question the 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.
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In October 2015, the United States District Court for the
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.
COMMENTS
1) According to the author : AB 1494 allows California voters
to take a photo of his or her marked ballot and share the
image. Two federal courts in other states have deemed these
photos political speech protected by the First Amendment.
California law should encourage voter pride, political speech,
and civic engagement through social media. Laws prohibiting
this activity 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.
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2) Constitutional Guarantee of Secret Voting and Related
Statutes : Article II, Section 7 of the California
Constitution provides, "Voting 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, 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
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.
3) Use of Cameras at Polling Places : At several recent
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elections (including yesterday's Presidential Primary), 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.
PRIOR ACTION
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|Assembly Floor: |51 - 18 |
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|Assembly Appropriations Committee: |14 - 3 |
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|Assembly Elections and Redistricting | 4 - 3 |
|Committee: | |
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POSITIONS
Sponsor: Author
Support: Secretary of State, Alex Padilla
California Civil Liberties Advocacy
Snapchat
Oppose: Howard Jarvis Taxpayers Association
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