BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 1337 HEARING DATE:
6/16/09
AUTHOR: EVANS ANALYSIS BY:
Darren Chesin
AMENDED: 6/8/09
FISCAL: YES
SUBJECT
Electioneering
DESCRIPTION
Existing law 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:
Circulating an initiative, referendum, recall, or
nomination petition or any other petition;
Soliciting a vote or speaking to a voter on the subject
of marking his or her ballot;
Placing a sign relating to voters' qualifications or
speaking to a voter on the subject of his or her
qualifications; or,
Doing any electioneering.
Existing law provides that a person who violates any of the
above provisions is guilty of a misdemeanor.
Existing law 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.
This bill would define "electioneering" as the visible
display or audible dissemination of information that
advocates for or against any candidate or measure on the
ballot within 100 feet of a polling place, an elections
official's office, or a satellite voting location.
Prohibited electioneering information would include, but
not be limited to, any of the following:
A display of a candidate's name, likeness, or logo.
A display of a ballot measure's number, title, subject,
or logo.
Buttons, hats, pencils, pens, shirts, signs, or stickers
containing electioneering information.
Dissemination of audible electioneering information.
BACKGROUND
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.
Prevalence of Electioneering Reports in California .
According to the SOS'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.
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
AB 1337 (EVANS) Page
2
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 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
AB 1337 (EVANS) Page
3
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
in preventing voter intimidation and
election fraud.
COMMENTS
1.According to the author , AB 1337 would define
"electioneering" in the Elections Code, consistent with
legal interpretation applied by courts and the SOS.
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.
2.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
specified commercial activity within 100 feet from the
polling place or an elections official's office when a
voter may be casting a ballot.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 7-0
Assembly Appropriations Committee: 16-0
Assembly Floor: 78-0
POSITIONS
Sponsor: Secretary of State
Support: None received
Oppose: None received
AB 1337 (EVANS) Page
4