BILL ANALYSIS
AB 269
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Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 269 (Silva) - As Amended: April 13, 2009
SUBJECT : Elections: corruption of voting.
SUMMARY : Prohibits a member of the public who is observing the
processing of ballots or a recount from attempting to ascertain
a voter's ballot choices if the member of the public knows who
cast that ballot. Specifically, this bill :
1)Prohibits a member of the public who is observing the
processing of vote by mail (VBM) ballots, the semi-official
canvass, the official canvass, or a recount, from willfully
doing any of the following:
a) Attempting to ascertain the identity and ballot choices
of a voter, or having observed or learned the identity of a
voter, attempting to ascertain the ballot choices of that
voter;
b) Opening a provisional or VBM ballot envelope containing
a voted ballot in order to ascertain the voter's ballot
choices; or,
c) Making or placing a mark or device on any ballot or
secrecy envelope in an attempt to ascertain the voter's
ballot choices.
2)Makes a violation of this bill a misdemeanor.
EXISTING LAW :
1)Provides that voting shall be secret.
2)Prohibits a poll worker from doing any of the following prior
to putting a voter's ballot in the ballot box at the polling
place:
a) Attempting to ascertain the voter's ballot choices;
b) Opening or causing to be opened or examined the folded
ballot of any voter that has been handed in; or,
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c) Making or placing any mark or device on any folded
ballot with the intent of ascertaining the voter's ballot
choices.
3)Requires the processing of VBM ballot return envelopes and the
processing and counting of VBM ballots to be open to the
public, both prior to and after the election. Prohibits any
observer of the processing of VBM ballots from touching or
handling the ballots.
4)Requires the elections official to conduct a semiofficial
canvass, which includes the tabulation of VBM and precinct
ballots, for each election. Requires the counting of ballots
as part of the semiofficial canvass to be open to the public.
5)Requires the official canvass to include the counting of valid
write-in votes, the processing and counting of valid VBM and
provisional ballots not included in the semiofficial canvass,
and the reproducing of damaged ballots, among other things.
Requires the official canvass to be open to the public.
6)Requires any recount that is conducted to be conducted
publicly.
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
This measure advances the fundamental right of voter
privacy. Current law affirms this right and enforces
it through statute. However, these statutes do not
cover several common scenarios where there is an
opportunity for observers of the process to seek to
learn the voters' choice after the ballots have been
cast.
AB 269 was inspired by a recent incident where an
observer was alleged to have deliberately viewed a
voter's ballot by removing it from the Absentee Ballot
envelope, viewing it and replacing it. Prosecutors
found they were lacking a statute to prosecute for
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this deed.
This measure will clarify and strengthen existing laws
protecting voters' privacy by including several
scenarios where an individual can willfully seek out
voters' private information.
2)Look, But Don't Touch : While the processing of ballots is
open to the public to observe, existing law also explicitly
prohibits such observers from touching official ballots or
other official elections materials while they are observing.
For instance, subdivision (e) of Section 15104 of the
Elections Code prohibits a person who is observing the
processing of VBM ballots from touching or handling the
ballots. Section 15204 of the Elections Code prohibits a
person who is observing the counting of ballots during the
semiofficial canvass from touching any ballot container.
Section 15630 of the Elections Code prohibits a person who is
observing a recount from touching or handling a ballot without
the consent of the elections official or an elections officer
supervising the recount. Finally, Section 18575 of the
Elections Code makes it a felony for a person who is not an
election officer to discharge any of the duties of an election
officer in regard to the handling of any ballots. Given these
provisions of existing law that prohibit people who are not
elections officials or officers from touching or handling
ballots or other election materials, it would appear that an
observer who physically touched a ballot could be charged with
a crime in most circumstances. These prohibitions against the
handling of official election materials by people who are not
elections officials or officers are important not only to
protect the secrecy of voters' ballots, but also to protect
against the tampering with or destruction of official ballots.
This bill, however, would provide additional protections
designed to ensure that the secrecy of a voter's ballot is not
compromised by prohibiting an observer from willfully
attempting to ascertain a voter's ballot choices when the
observer knows the identity of the voter who cast the ballot
in question. While elections officials have established
procedures to minimize the possibility that an observer could
learn the identity of the voter who cast a specific ballot,
this bill may help protect the secrecy of ballots against
observers who attempt to circumvent those procedures.
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REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Board of Supervisors
Orange County District Attorney Tony Rackauckas
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094