BILL ANALYSIS Ó
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Date of Hearing: April 27, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
AB 2021
(Ridley-Thomas) - As Amended March 15, 2016
SUBJECT: Election process: public observation: international
election observers.
SUMMARY: Clarifies state law to permit international election
observers access to all election processes that are open to the
public, as specified. Specifically, this bill:
1)Allows an international election observer to be provided
uniform and nondiscriminatory access to all stages of the
election process that are open to the public, including the
public review period for the certification of a ballot marking
system, the processing and counting of vote by mail (VBM)
ballots, the canvassing of ballots, and the recounting of
ballots.
2)Prohibits an international election observer from interfering
with a voter in the preparation or casting of the voter's
ballot, with a precinct board member or an elections official
in the performance of his or her duties, or with the orderly
conduct of an election.
3)Defines an "international election observer" to mean a person
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who witnesses the administration of an election in California
and who is an official representative of an international
organization such as the United Nations, the Organization of
Security and Cooperation in Europe (OSCE), or the Organization
of American States (OAS).
EXISTING LAW:
1)Requires the official canvass to be open to the public, as
specified.
2)Requires all proceedings at the central counting place, or
counting places, if applicable, to be open to view of the
public. Provides that no person, except one employed and
designated by the elections officials, may touch any ballot
container.
3)Requires the processing of VBM ballot return envelopes, and
the processing and counting of VBM ballots to be open to the
public, as specified. Prohibits a VBM observer from
interfering with the orderly processing of VBM return
envelopes or the processing and counting of VBM ballots,
including the touching or handling of ballots.
4)Requires the process for reviewing rejected ballots to be open
to members of the public, including persons associated with a
campaign or measure.
5)Requires a voter to have the right to ask questions about
election procedures and observe the election process.
FISCAL EFFECT: None. Keyed non-fiscal by the Legislative
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Counsel.
COMMENTS:
1)Purpose of the Bill: According to the Author:
The [OSCE], a United Nations partner on
democratization and human rights projects, has
monitored elections in the United States at the
request of Civil Rights groups, such as the NAACP and
the ACLU. As an OSCE member country, the United States
has committed to hold free and democratic elections
and to allow OSCE members to observe elections in the
United States.
Despite this commitment at the federal level, state
law governs who can be in a polling place on Election
Day. Several states, including Missouri, South Dakota,
North Dakota, and New Mexico, authorize international
observers to monitor elections.
No state expressly forbids international observers.
However, at least two states, Texas and Iowa, have
barred international election observers, indicating
that anyone who is not permitted (voters, poll
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workers, poll watchers) could be subject to arrest.
OSCE has asked that states expressly authorize
international election observers to guarantee access
to elections and to eliminate the fear of prosecution
for individuals tasked with protecting the democratic
process across the world. As a state that conducts
fair and open elections, it only makes sense to allow
the international community to monitor and learn from
our elections.
2)Current Election Observer Practice: In general, current law
permits members of the public to observe the election process.
For example, existing law requires the precinct board member
to conduct certain election day procedures in the presence of
all persons assembled at the polling place, requires the
semifinal official canvass and the official canvass to be open
to the public, and requires the processing of VBM,
provisional, and rejected ballots to be open to the public, as
specified.
This bill clarifies state law to permit international election
observers access to all election processes that are open to
the public. Specifically, this bill allows an international
election observer to be provided uniform and nondiscriminatory
access to all stages of the election process that are open to
the public, including the public review period for the
certification of a ballot marking system, the processing and
counting of VBM ballots, the canvassing of ballots, and the
recounting of ballots. Additionally, similar to prohibitions
under current law for members of the public observing
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elections, this bill prohibits an international election
observer from interfering with a voter in the preparation or
casting of the voter's ballot, with a precinct board member or
an elections official in the performance of his or her duties,
or with the orderly conduct of an election. Finally, this
bill defines an international election observer to mean a
person who witnesses the administration of an election in
California and who is an official representative of an
international organization such as the United Nations, the
OSCE, or the OAS.
3)Secretary of State's Elections Observation Rights and
Responsibilities Memorandum: In May 2014, the SOS sent out a
memorandum to county elections officials outlining general
state and local policies and rights and responsibilities of
members of the public and elections officials related to
observing the elections process. According to the memorandum,
elections observers should be aware that in general, the law
provides elections officials with some discretion in terms of
how various observation laws are applied and as a result, laws
may vary from jurisdiction to jurisdiction for reasons
including, but not limited to, the size and configuration of
the elections office, the staffing levels, and the number of
observers that request access to a particular process.
According to the memorandum, observers have the right to:
Observe pre-election day activities, as permitted by
law, such as voting equipment preparation and testing and
VBM ballot processing.
Observe the proceedings at the polls, including the
opening and closing procedures.
Obtain information from the precinct index that is
posted near the entrance of the polling place.
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Make notes and watch election procedures.
View election-related activities at the central
counting site on election day.
View the canvass of the vote activities following
the election.
View VBM and provisional ballot processing.
Ask questions of poll workers as long as they do not
interfere with the conduct of any part of the voting
process.
Ask questions of supervisors at the central counting
site as long as they do not interfere with the conduct of
the election procedures.
Additionally, observers are responsible for:
Checking in at each site, whether the polling place or
central counting site.
Wearing an identification badge.
Maintaining a professional manner while observing the
election process.
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Ensuring they do not interfere with the election
process.
Following established county observation rules/policies.
Finally, observers may not:
Interfere with the conduct of the election. The
elections official is entitled to determine whether a
person is interfering with the conduct of the election.
Physically handle any voting materials or equipment
without the express permission of the elections official.
Move or rearrange tables, chairs, or voting booths at
the polling place or central counting facility.
Sit at the official worktables or view confidential
voter information on any computer terminal or document.
Communicate with voters within 100 feet of the entrance
to, or inside of, a polling place by encouraging them to
vote for or against a person or a measure or regarding the
voter's qualifications to vote. Exit polling of voters is
permitted, provided it is conducted at least 25 feet away
from the entrance to the polling place.
Directly challenge a voter. Only a member of a precinct
board may do so, based on evidence presented.
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Display any campaign material or wear campaign badges,
buttons, or apparel.
Wear the uniform of a peace officer, a private guard, or
security personnel.
Use cellular phones, pagers, or two-way radios inside
the polling place and/or within 100 feet of the entrance to
the polling place.
Talk to or attempt to stop poll workers or the central
counting site workers while they are processing ballots.
Use the telephones, computers, or other polling place
facilities at polling places or the central counting site.
Touch election personnel.
Eat or drink in the polls or the central counting site.
Assist in operations at any polling place or the central
counting site.
Prevent other observers from observing materials or a
process.
Enter secure areas without express permission of the
elections official.
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1)Organization for Security and Cooperation in Europe: The
United States is a member of the OSCE, an organization made up
of 57 participating states that recognize that democratic
elections form the basis for legitimate government. In 1990,
the United States and all OSCE participating states agreed by
consensus to the Copenhagen Document, reaffirming principles
to strengthen respect for fundamental freedoms, and inviting
observers from other participating states to observe national
elections. The Copenhagen Document states, among other
provisions, that "participating States consider that the
presence of observers, both foreign and domestic, can enhance
the electoral process for States in which elections are taking
place. They therefore invite observers from any other OSCE
participating States and any appropriate private institutions
and organizations who may wish to do so to observe the course
of their national election proceedings, to the extent
permitted by law. They will also endeavor to facilitate
similar access for election proceedings held below the
national level. Such observers will undertake not to
interfere in the electoral proceedings."
Also in 1990, the United States sponsored an initiative that led
to the creation of the Office of Democratic Institutions and
Human Rights (ODIHR) as the OSCE's focal point for all
election-related matters, including election observation,
technical assistance, and the review of electoral legislation.
Each year the ODIHR deploys thousands of observers to monitor
elections throughout the OSCE region in order to assess
participating state's election-related commitments. According
to the OSCE website, the United States formally invited ODIHR
to send observers to elections in 1996, 1998, 2000, and 2002,
and in 2003, two ODIHR observers came to observe the
California gubernatorial recall election.
2)Other States: As mentioned above, there is a national
commitment to the OSCE to permit international observers to
observe elections in the United States, however, despite this
commitment it is state law which governs the elections in each
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state. Some states expressly permit international observers
to observe their elections, while other states allow, but do
not explicitly state in law that international observers as
permitted to observe their elections. According to the
National Conference of State Legislators (NCSL), Missouri, New
Mexico, North Dakota, South Dakota, and Washington D.C,
explicitly allow international observers. Additionally, Texas
and Ohio, while not in statute, have rulings from their
respective Attorney General or Secretary of State barring
international election observers.
California law is silent on the matter and does not expressly
forbid or permit international observers. This bill clarifies
current law and explicitly states that international election
observers are permitted to observe California elections, as
specified.
3)Other Organizations: According to the NCSL, besides the OSCE,
the United States also participates in election observation
through two other organizations - the OAS and the Carter
Center.
According to the Carter Center website, since 1989, the Carter
Center has observed 101 elections in 39 countries. Missions
are undertaken only upon the invitation or consent of all
major parties to an election. Observers help reassure voters
that they can safely and secretly cast their ballots and help
deter fraud. The Carter Center observation projects generally
begin well in advance of elections. Observer teams are often
in a country to assess registration exercises and political
campaigns before an election. Moreover, during an election,
observers monitor voting and counting and remain after the
ballots have been counted to monitor vote tabulation.
The United States also participates in election observation
through the OAS. The OAS states that the right to universal
suffrage by secret ballot is a cornerstone of the democratic
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system and that it is imperative that citizens of every
country be able to rely on electoral processes that are free,
peaceful and transparent. Moreover, the OAS believes that
independent, impartial observation of elections lends
transparency and confidence to the electoral process and helps
strengthen democracy in the region. Since 1962, the OAS has
deployed more than 200 Electoral Observation Missions (EOM) in
27 African countries. Upon completion of the electoral
process, the EOM make recommendations to help improve the
electoral system.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file.
Opposition
None of file.
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094
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