BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          ELECTIONS AND CONSTITUTIONAL AMENDMENTS
                              Senator Ben Allen, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 2021        Hearing Date:    6/8/16    
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          |Author:    |Ridley-Thomas                                        |
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          |Version:   |3/15/16                                              |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|Frances Tibon Estoista                               |
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           Subject:  Election process:  public observation:  international  
                                 election observers.

           DIGEST
           
          This bill clarifies state law to permit international election  
          observers access to all election processes that are open to the  
          public.

           ANALYSIS
           
           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, and further requires that no person, except one  
             employed and designated by the elections officials, may touch  
             any ballot container.

          3) Requires the processing of vote by mail (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  







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             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.

           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 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  
             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).

           BACKGROUND
           
           Current Election Observer Practice  :  In general, current law  
          permits members of the public to observe the election process.   
          For example, existing law requires precinct board members 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.

           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  








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          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. 

           COMMENTS
                                           
            1) 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,  








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             have barred international election observers, indicating that  
             anyone who is not permitted (voters, poll 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) SOS's Elections Observation Rights and Responsibilities  
             Memorandum  :  The SOS recently (5/13/16) 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. 
           "     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. 








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           "     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. 
           "     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. 
           "     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  








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                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.

            1) 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 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.

            2) 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  








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             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  
             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.

           PRIOR ACTION
           
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          |Assembly Floor:                       |55 - 22                    |
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          |Assembly Elections and Redistricting  |  5 - 2                    |
          |Committee:                            |                           |
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          POSITIONS
           
          Sponsor: Author

           Support: California Association of Clerks and Election  
                   Officials

           Oppose:  None received

                                          
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