BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 269 HEARING DATE: 6/16/09
AUTHOR: SILVA ANALYSIS BY: Darren
Chesin
AMENDED: 4/13/09
FISCAL: YES
SUBJECT
Elections: corruption of voting
DESCRIPTION
Existing law provides that voting shall be secret.
Existing law 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:
Attempting to ascertain the voter's ballot choices;
Opening or causing to be opened or examined the folded
ballot of any voter that has been handed in; or,
Making or placing any mark or device on any folded ballot
with the intent of ascertaining the voter's ballot
choices.
Existing law 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, both prior to and
after the election. Observers of the processing of VBM
ballots are prohibited from touching or handling the
ballots.
Existing law requires the elections official to conduct a
semiofficial canvass, which includes the tabulation of VBM
and precinct ballots, for each election. The counting of
ballots as part of the semiofficial canvass is open to
public observers.
Existing law 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. The official canvass is also
open to public observers.
Existing law requires any recount that is conducted to be
conducted publicly.
This bill would prohibit a member of the public who is
observing the processing of VBM ballots, the semi-official
canvas, the official canvas, or a recount from willfully
doing any of the following:
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;
Opening a provisional or VBM ballot envelope containing a
voted ballot in order to ascertain the voter's ballot
choices; or,
Making or placing a mark or device on any ballot or
secrecy envelope in an attempt to ascertain the voter's
ballot choices.
BACKGROUND
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. Furthermore, 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.
AB 269 (SILVA) Page
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COMMENTS
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 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.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 7-0
Assembly Appropriations Committee: 16-0
Assembly Floor: 78-0
POSITIONS
Sponsor: Author
Support: Orange County Board of Supervisors
Orange County District Attorney Tony Rackauckas
Oppose: None received
AB 269 (SILVA) Page
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