BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1494|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 1494
Author: Levine (D), et al.
Amended: 6/15/16 in Senate
Vote: 21
SENATE ELECTIONS & C.A. COMMITTEE: 5-0, 6/8/16
AYES: Allen, Anderson, Hancock, Hertzberg, Liu
ASSEMBLY FLOOR: 51-18, 1/27/16 - See last page for vote
SUBJECT: Voting: marked ballots
SOURCE: Author
DIGEST: This bill allows voters to voluntarily disclose 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 if that voluntary act does not violate any other law.
Background
AB 1494
Page 2
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,
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
AB 1494
Page 3
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
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.
Comments
1)According to the author, AB 1494 seeks to uphold the First
Amendment right of voters to engage in political speech by
expressly allowing voters to voluntarily share their marked
ballots.
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
AB 1494
Page 4
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, Senate Elections and
Constitutional Amendments 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/14/16)
Secretary of State Alex Padilla
California Civil Liberties Advocacy
Snapchat
OPPOSITION: (Verified6/14/16)
AB 1494
Page 5
Howard Jarvis Taxpayers Association
ASSEMBLY FLOOR: 51-18, 1/27/16
AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,
Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh,
Eggman, Beth Gaines, Gallagher, Cristina Garcia, Eduardo
Garcia, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández,
Holden, Irwin, Jones-Sawyer, Kim, Levine, Linder, Lopez, Low,
McCarty, Medina, Mullin, Nazarian, Olsen, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Wilk, Williams, Wood, Atkins
NOES: Travis Allen, Baker, Bigelow, Brough, Gatto, Gray, Grove,
Hadley, Harper, Jones, Lackey, Mayes, Melendez, Obernolte,
O'Donnell, Patterson, Wagner, Waldron
NO VOTE RECORDED: Achadjian, Chávez, Dahle, Daly, Dodd,
Frazier, Maienschein, Mathis, Steinorth, Weber
Prepared by:Frances Tibon Estoista / E. & C.A. / (916) 651-4106
6/15/16 17:24:38
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