BILL ANALYSIS
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THIRD READING
Bill No: AB 1337
Author: Evans (D)
Amended: 6/8/09 in Senate
Vote: 21
SENATE ELEC., REAP. & CONST. AMEND. COMM. : 5-0, 6/16/09
AYES: Hancock, Walters, DeSaulnier, Liu, Strickland
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 78-0, 5/11/09 (Consent) - See last page
for vote
SUBJECT : Electioneering
SOURCE : Secretary of State
DIGEST : This bill defines electioneering as displaying
visible or disseminating audible information that advocates
for or against any candidate or measure on the ballot in
specified locations.
ANALYSIS : 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:
1. Circulating an initiative, referendum, recall, or
nomination petition or any other petition.
CONTINUED
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2. Soliciting a vote or speaking to a voter on the subject
of marking his/her ballot.
3. Placing a sign relating to voters' qualifications or
speaking to a voter on the subject of his/her
qualifications.
4. 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 defines "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 will include, but not be limited
to, any of the following: (1) a display of a candidate's
name, likeness, or logo, (2) a display of a ballot
measure's number, title, subject, or logo, (3) buttons,
hats, pencils, pens, shirts, signs, or stickers containing
electioneering information, or
(4) 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
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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
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 United
States 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
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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 in preventing voter
intimidation and election fraud.
Comments
According to the bill's sponsor, the Secretary of State,
"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". This bill clarifies the
definition of "electioneering" in the Elections Code and
makes it consistent with legal interpretation by the courts
and the Secretary of State.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 6/22/09)
Secretary of State (source)
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nava, Nestande, Niello, Nielsen, John A. Perez, V. Manuel
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Perez, Portantino, Price, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Bass
NO VOTE RECORDED: Duvall, Yamada
DLW:mw 6/22/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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