BILL ANALYSIS Ó
AB 1494
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CONCURRENCE IN SENATE AMENDMENTS
AB
1494 (Levine)
As Amended August 8, 2016
Majority vote
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|ASSEMBLY: | |(January 27, |SENATE: |31-6 |(August 15, |
| | |2016) | | |2016) |
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(vote not relevant)
Original Committee Reference: E. & R.
SUMMARY: Clarifies that a voter may voluntarily disclose how he
or she voted if that voluntary act does not violate any other
law.
The Senate amendments delete the Assembly-version of the bill,
and instead specify that a voter may voluntarily disclose how he
or she voted if that voluntary act does not violate any other
law and make corresponding changes.
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.
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AS PASSED BY THE ASSEMBLY, this bill authorized voters to take
and share photographs of their marked ballots.
FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS: According to the author, this bill seeks to uphold
the First Amendment right of voters to engage in political
speech by expressly allowing voters to voluntarily share their
marked ballots.
California Constitution Article II, Section 7 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, 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
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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, 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
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.
As approved by the Assembly, this bill explicitly authorized
voters to take and share photographs of their marked ballots.
The Senate amendments deleted those provisions, and instead
specify that the existing prohibition against a voter showing
his or her ballot to another person after it has been marked
does not prohibit a voter from voluntarily disclosing how he or
she voted if that voluntary act does not violate any other law.
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While the Senate amendments take a different approach, both
versions of the bill seek to protect the First Amendment rights
of voters to engage in political speech by voluntarily sharing
how they voted. In light of that fact, this bill, as amended in
the Senate, is generally consistent with Assembly actions.
Analysis Prepared by:
Ethan Jones / E. & R. / (916) 319-2094 FN:
0003882