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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