BILL ANALYSIS
AB 1337
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1337 (Evans) - As Amended: April 13, 2009
SUBJECT : Elections: electioneering.
SUMMARY : Provides a definition for the term "electioneering".
Specifically, this bill :
1)Defines the term "electioneering" as the displaying of visible
information that advocates for or against any candidate or
measure on the ballot.
2)Provides that electioneering may include the display of items
including, but not limited to, buttons, hats, pencils, pens,
shirts, signs, and stickers.
3)Makes existing laws prohibiting electioneering applicable to
the area within 100 feet of a satellite location where ballots
are being cast.
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 doing any of the
following:
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
qualifications; or,
d) Doing any electioneering.
2)Provides that a person who violates any of the above
provisions is guilty of a misdemeanor.
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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 infactions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
AB 1337 would define "electioneering" in the Elections
Code, consistent with legal interpretation applied by
courts and the Secretary of State. Under this measure,
people would be prohibited from displaying visible
information advocating for or against a candidate or
measure into a polling place or within 100 feet of a
polling place. Prohibited information includes buttons,
hats, pencils, pens, shirts, signs and stickers.
Existing law, Elections Code Section 18370, prohibits
electioneering 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. Electioneering is
undefined. Moveover, Elections Code Section 18541
prohibits soliciting a vote, placing signs relating to
voters qualifications, or photographing or videotaping a
voter entering or exiting a polling place.
2)What Constitutes Electioneering in California? While the term
"electioneering" is not defined in the Elections Code, the
Secretary of State (SOS) has consistently 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 clerks and registrars, the SOS wrote that
a voter who wears a campaign shirt, hat, button, or similar
item into a polling place is indeed electioneering and
clarified that the display of items that do not advocate for
or against a particular candidate or measure is not considered
electioneering.
3)Prevalence of Electioneering Reports in California :
According to the Secretary of State's, Elections Investigative
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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.
4)Relevant Electioneering Court Cases: 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 other counties, the court did frame the
issue in part:
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 statue 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
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consensus demonstrates that some restricted zone is
necessary in order to serve the States' compelling interest
in preventing voter intimidation and election fraud.
5)Concerns Expressed : In a letter to the committee, the
California Association of Clerks and Election Officials
(CACEO) expressed their support of the bill, if the definition
of electioneering was expanded to include the prohibition of
visual, oral or written communication. CACEO's expanded
definition of "electioneering" would be defined as "any
readily visible written, or audible information that advocates
for or against any candidate or measure on the ballot.
Prohibited information includes, but is not limited to,
political messages written on buttons, hats, pencils, pens,
shirts, signs, and stickers, or political messages played from
a personal recording device, radio, or delivered in any other
audible manner." The committee may wish to consider whether
expanding the definition of "electioneering" to prohibit the
use of visual or audible devices will further the intent of
bill and decrease the likelihood that voters will be
improperly influenced to vote for or against a candidate or
ballot measure.
6)Arguments in Support : According to the bill sponsor,
Secretary of State Debra Bowen:
Leading up to the 2008 November General Election, questions
arose nationwide as to what exactly constituted
"electioneering" at the polls on Election Day. More
specifically, whether a voter who wears a campaign shirt,
hat, button, or a similar item into a polling place is
indeed "electioneering". AB 1337 clarifies the definition
of "electioneering" in the Elections Code and make it
consistent with legal interpretation by the courts and the
Secretary of State. People would be prohibited from
bringing any readily visible information advocating for or
against a candidate or measure into a polling place or
within 100 feet of a polling place. Prohibited information
includes, but is not limited to buttons, hats, pencils,
pens, shirts, signs and stickers.
7)Related Legislation : AB 441 (Hall), also being heard in this
committee today prohibits a person, on election day, from
soliciting a donation of any kind or engaging in commercial
activity within 100 feet from the polling place or an
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elections official's office when a voter may be casting a
ballot.
REGISTERED SUPPORT / OPPOSITION :
Support
Secretary of State Debra Bowen (sponsor)
California Association of Clerks and Election Officials (if
amended)
Opposition
None on file.
Analysis Prepared by : Qiana Charles / E. & R. / (916)
319-2094