BILL ANALYSIS
AB 441
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 441 (Hall) - As Amended: April 2, 2009
SUBJECT : Elections: prohibited activities.
SUMMARY : Prohibits a person, on election day, or at any time
that a voter may be casting a ballot, from soliciting a donation
of any kind or engaging in commercial activity within 100 feet
from the polling place or an elections official's office.
Specifically, this bill :
1)Defines "commercial activity" as any activity or action
undertaken only on election day, in whole or in part by a
business or an individual whose purpose, in whole or in part,
directly or indirectly, is to derive or realize a present or
future financial gain for the individual or business.
2)Provides that a person who solicits a donation or engages in
commercial activity within 100 feet from the polling place or
an elections official's office when a voter may be casting a
ballot is guilty of a misdemeanor.
EXISTING LAW:
1)Prohibits a person, on election day, or at any time that a
voter may be casting a ballot, within 100 feet of a polling
place or an elections official's office from:
a) Circulating an initiative, referendum, recall, or
nomination petition or any other petition;
b) Soliciting a vote or speaking to a voter on the
subject of marking his or her ballot;
c) Placing a sign relating to voters' qualifications or
speaking to a voter on the subject of his or her
qualification; or,
d) Doing any electioneering.
2)Provides that a person who violates any of the above
provisions is guilty of a misdemeanor.
AB 441
Page 2
3)Defines "100 feet of a polling place or an elections
official's office" as the distance 100 feet from the room or
rooms in which voters are signing the roster and casting
ballots.
FISCAL EFFECT : Unknown. State-mandated local program;
contains a crimes and infractions disclaimer.
AB 441
Page 3
COMMENTS :
1)Purpose of the Bill : According to the author:
AB 441 would expand up on the state's "100 foot rule" to
prohibit an individual from soliciting a donation or
engaging in commercial activity within 100 feet of a
polling place on Election Day or at an election official's
office. Voters should be free of any outside influence at
a polling place. Prohibiting these activities will prevent
an individual or group from using deceptive means to
actively or passively influence a voter and expand upon the
spirit of the state's "100 foot rule", further
strengthening California's commitment to a free and fair
election process.
2)What Constitutes Electioneering in California ? While the term
"electioneering" is not defined in the Elections Code, the
Secretary of State's office has taken the position that voters
who bring information into a polling place that advocates for
or against any candidate or measure on the ballot are indeed
engaged in "electioneering." In a September 2008 memo to
county elections officials, the Secretary of State wrote that
the topic of what constitutes "electioneering" at the polls on
election day and more specifically, whether a voter who wears
a campaign shirt, hat, button, or similar item into a polling
place is indeed electioneering and clarified that items that
do not advocate for or against a particular candidate or
measure, are not considered electioneering. The memo also
referenced the poll workers' need to understand the difference
between electioneering and public opinion polling.
3)Is Electioneering a Problem in California : According to the
Secretary of State's, Elections Investigative Unit, between
the periods of 1994 to 2008, there were 48 cases of
electioneering reported. Of the 48 reported cases, two were
sent to the District Attorney's office for prosecution with
one of the cases ending in prosecution and a conviction in
1997. During the November 2008 General Election, the agency's
election hotline reported 65 complaints of electioneering.
However, most cases were reported and eventually resolved by
the counties. This bill attempts to address the issue of
indirect or passive electioneering tactics which could
persuade or influence a voter. However, to the committee's
knowledge, there have not been widespread reports of "passive
AB 441
Page 4
or indirect electioneering" attempts.
4)Relevant Electioneering Court Cases : The State and federal
courts in recognizing that states have an interest in
preserving the integrity of the election process, have upheld
generally applicable and even handed restrictions that protect
the integrity and reliability of the electoral process. In
California, the issue of electioneering arose before the
Mendocino County Superior Court in 1998 in the case of SPEAK
UP!, et al. v. Marsha A. Young. The plaintiff sought a
preliminary injunction after the county Registrar of Voters
deemed their attempt to wear buttons advocating for a
particular candidate in the polling place constituted
"electioneering". Although the case does not serve as
precedent in the remaining 57 counties, the court did frame
the issue as follows:
This 'thoughtful/quiet zone' where no further political
bombardment can occur actually protects and safeguards even
petitioners' own political free speech. Exercising one's
right to vote to elect one's leaders and enact laws is the
ultimate unrestricted political free speech. The temporary
(five to ten minute) covering or removal of political
buttons in the limited polling areas while voting is a very
slight inconvenience necessary to safeguard a free and
untainted electoral process. This protected right and
process underlies and it interwoven with all other rights.
The judge in this case based his ruling on the U.S. Supreme
Court's 1992 decision in Burson v. Freeman, which dealt with a
broader question of whether a Tennessee law banning the
display and distribution of campaign materials within 100 feet
of a polling place was constitutional. The Court ruled that
the statute was indeed constitutional, concluding in part:
In sum, an examination of the history of election
regulation in this country reveals a persistent battle
against two evils: voter intimidation and election fraud.
After an unsuccessful experiment with an unofficial ballot
system, all 50 States, together with numerous other Western
democracies, settled on the same solution: a secret ballot
secured in part by a restricted zone around the voting
compartments. We find that this widespread and time-tested
consensus demonstrates that some restricted zone is
necessary in order to serve the States' compelling interest
AB 441
Page 5
in preventing voter intimidation and election fraud.
5)Various Polling Places in California : By law, at least 29
days before an election, a county elections official is
required to establish precincts and polling places within his
or her county. Possible polling places could include schools,
churches, private residences and fire stations. For example,
during the November 2008 general election, Sacramento County
established over 500 polling places throughout the county.
Those polling places included churches, community centers,
senior facilities, mobile home parks, fire stations,
government buildings, association club houses, schools,
apartment club houses and business conference rooms.
6)Related Legislation : AB 1337 (Evans), also being heard in
this committee today, defines
"electioneering" as bringing any readily visible information
into a polling place, an elections official's office, a
satellite location or within 100 feet of a polling place, an
elections official's office, or satellite location, that
advocates for or against any candidate or measure on the
ballot, and specifies that prohibited information includes,
but is not limited to, buttons, hats, pencils, pens, shirts,
signs, and stickers.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Qiana Charles / E. & R. / (916)
319-2094