Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/13/2018 03:30 PM Senate COMMUNITY & REGIONAL AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB7 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 7 | TELECONFERENCED | |
HB 7-MARKED BALLOT PHOTOS; PERSUASION AT POLLS
3:31:23 PM
CHAIR BISHOP announced consideration of HB 7 [CSHB 7(CRA), 30-
LS0111\J, was before the committee].
3:31:39 PM
REPRESENTATIVE KREISS-TOMKINS, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 7, said this measure clarifies something
that is a widespread practice now: taking photos of ballots in
the voting booth and posting them online. Technically, it's
illegal. The prohibition is a vestige from the early 20th
century when political machine politics and voter coercion was
widespread. HB 7 updates election law to the reality of
cellphones.
3:34:09 PM
NOAH STARS, staff to Representative Kreiss-Tomkins, Alaska State
Legislature, Juneau, Alaska, provided a sectional analysis of HB
7. He started with section 3, the meat of the bill, which amends
the statute that prohibits the displaying of one's ballot. It
proposes allowing the sharing of a photo, video, or other image
of a voter's ballot within 200 feet of a polling place subject
to one prohibition on political persuasion that is identified in
section 1.
Section 2 moves part of the statute into section 3.
Section 1 is the part of the bill that prohibits the displaying
of one's ballot in photo or video form in the polling place or
within 200 feet of it, consistent with existing statute
prohibitions.
SENATOR MACKINNON asked if the bill proposes that a person can
take a picture of a ballot in a voting place but can't transmit
it while they are on the premises or someone else who is on the
premises could open it up, and asked how that can be enforced.
REPRESENTATIVE KREISS-TOMKINS said the intent is for a voter to
be able to take an image in a polling place but to not show it
on their phone as they leave, which would fall within the
parameters of campaigning or trying to influence another voter's
choice in a place of voting.
SENATOR MACKINNON remarked that one can't control how someone
takes and forwards an image. This bill may stop someone from
displaying their phone, but it does not stop someone from taking
a picture of their ballot and distributing it to everyone on
Facebook or other social media platforms where it immediately
becomes available and may influence other people on how to vote.
3:37:55 PM
REPRESENTATIVE KREISS-TOMKINS said that is also a fair point,
but he noted that that is the reality they are working within.
SENATOR MACKINNON said it's not a question: she takes voting
seriously and if she had a following it would be unfair of her
to share her ballot because 15,000 or 25,000 people follow her
and she could influence an election very quickly.
3:40:05 PM
REPRESENTATIVE KREISS-TOMKINS said that is a fair point. He is
personally very conservative with social media but has taken a
ballot selfie just as a personal memento and never shared it
with other people. However, he knows lots of people who are more
liberal with sharing what they have done and, in a sense, "the
cat is out of the bag." This is already happening on a
widespread basis. It's not being enforced, but if someone really
wanted to go after this law, it could be challenged on First
Amendment grounds and the challengers could prevail. That has
already happened in New Hampshire.
Secondly, if he or Senator MacKinnon, being prominent leaders in
Alaska, were trying to influence an election, their endorsements
might have the same influence as a photo of a ballot.
3:42:24 PM
SENATOR GARDNER said it's important to recognize that this
happens a lot now and agreed there is a First Amendment right if
she wants to take a picture of her own ballot for herself. But
she worries that people are subjecting those who are waiting in
line to campaigning.
SENATOR MACKINNON said language on page 2, section 2, says: "A
voter may not exhibit the voter's ballot to an election official
or any other person so as to enable any person to ascertain how
the voter marked the ballot." Her question to the sponsor is can
they display the actual ballot. She needed a legal
interpretation to know if taking a selfie is different than
sharing a ballot vote.
CHAIR BISHOP asked if the intention of this bill is to allow a
voter to take a selfie in the booth or to take a picture of the
ballot to show how you voted and send it out.
REPRESENTATIVE KREISS-TOMKINS replied that a ballot selfie is
meant to refer to one taking a photo of one's ballot. However,
you could be in the photo at the same time, too.
3:46:10 PM
ALPHEUS BULLARD, Attorney, Division of Legislative Legal
Services, Legislative Affairs Agency, Alaska State Legislature,
Juneau, Alaska, answered that section 3 adds a new subsection
(AS 15.15.280 (b) that applies to section 2 saying that section
does not apply to a voter who requests assistance as provided in
AS 15.15.240 or subject to the prohibition on political
persuasion and who is within 200 feet of the entrance of the
polling place.
CHAIR BISHOP asked if this doubles down on saying you can't show
anything within 200 feet of the booth.
MR. BULLARD answered there is an absolute prohibition to show
how you voted on your ballot whether it be with a ballot selfie
or otherwise, as long as you're within the polling place or
within 200 feet of an entrance to it.
CHAIR BISHOP asked how that is enforced.
3:49:06 PM
MR. STARS said he would defer that question to the Division of
Elections, but the idea is that a ballot selfie should not
interfere with the process of voting. And the status quo is when
folks ask themselves if they can take a picture of their vote
and put it on Facebook, there is not a clear answer. This bill
offers a clear answer, which removes an element of voter
confusion and creates clear policy.
SENATOR GARDNER asked if she was correct that section 1 says you
can't use a photo to persuade others within 200 feet; section 2
says you can't show a ballot to anybody; and section 3 says
except if it's somebody who needs help, or you are more than 200
feet away.
3:51:31 PM
JOSIE BEHNKE, Director, Division of Elections, Office of the
Lieutenant Governor, Juneau, Alaska, said the department was not
opposed to HB 7. She explained that HB 7 proposes to allow
Alaskan voters to take and share ballot selfies. Under existing
statute, it is unlawful for a voter to display a marked ballot.
The division has no opposition to this bill, but during the last
election cycle it fielded a lot of questions from people asking
about the legality of selfies.
She further stated that AS 15.15.170 deals with electioneering.
AS 15.15.280 addresses conduct in the polling places. She
reiterated that there is a lot of voter confusion about what is
allowed, and HB 7 would make that clearer.
3:54:04 PM
MS. BEHNKE said this specific statute was written in around 1960
and didn't contemplate cell phones or cameras being an issue in
a polling place. AS 15.56, which is about election crimes, says
the penalty for exhibiting a marked ballot in a polling location
is to spoil that ballot. Election workers are trained to do
that. However, once a ballot goes into the ballot box, it is
comingled with all the other ballots making it virtually
impossible to enforce.
She said the changes in HB 7 would have no impact on the costs
associated with the division's conduct of state and federal
elections and no additional staff would be required to implement
it.
3:55:43 PM
SENATOR GARDNER asked what if she is voting absentee, is that a
violation of something?
MS. BEHNKE replied this bill just addresses conduct in the
polling places.
CAROL THOMPSON, Absentee and Petition Manager, Division of
Elections, Office of the Lieutenant Governor, Anchorage, Alaska,
replied at this point there isn't any law for absentee ballots
in homes. This bill speaks specifically to actions in the
polling place and within a 200-foot radius.
SENATOR MACKINNON said she was looking at the National
Conference of State Legislatures (NCSL) in the New Hampshire
case that was a federal court decision. Net neutrality comes to
mind: when you're posting on Facebook, it is continually
gathering data to manipulate everything. For instance, if she
googles a set of pearls for her mother's birthday, she gets
offered pearls for the next six months. Now images are being put
out at a state level that would be a republican or democrat-cast
vote. That information could be used in the future to manipulate
and target specific IP addresses directly. So, IP addresses on
Facebook or other social network platforms can be used to
directly influence voters in an election.
SENATOR MACKINNON said the NCSL memo references a blog by Ethan
Wilson, dated 8.27.2015, which says: "Election scholars disagree
as to whether legalizing ballot selfies will actually promote
voter buy-in or other fraud." She is thinking of the inquiry at
the national level as to whether a foreign country tried to
invade into American politics. If a social network has IP
addresses with how each person is voting based on photo-sharing
of images, then foreign countries, because of that exposure,
would have direct access if they could breach into the data of
the seller.
3:59:35 PM
SENATOR MACKINNON said she agreed with the court that selfies
are something we are faced with these days, but she would still
err on the note of caution.
CHAIR BISHOP asked Ms. Behnke to expound on how to make HB 7 a
better bill.
MS. BEHNKE said the House had concerns about electioneering
within 200 feet of a polling place and asked that language to be
included. Election workers are trained to use specific rules in
the polling place and electioneering is one of them. So, they
worked closely with the sponsor to get that included in version
\J of HB 7. She could follow up with the committee on
recommendations. The division is doing some things
administratively like putting up signage (a cellphone circled
with a line through it) should HB 7 not become law.
CHAIR BISHOP asked her to work with his staff on the committee
substitute.
SENATOR GARDNER asked Ms. Behnke if she is concerned with the
bill as drafted.
MS. BEHNKE answered no.
SENATOR MACKINNON asked, knowing what the Internet can do and
what it is alleged to have done during the national campaign, as
the coordinator of elections for the state of Alaska, doesn't
she think that people can be targeted once their information is
exposed.
MS. BEHNKE answered that she hadn't considered the election
security standpoint in this bill; they thought about this bill
as an expression of celebrating the act of voting.
SENATOR MACKINNON asked the division to go back and at least
look at securing data. She didn't want folks who take their
picture in a booth to be the subject of any kind of criminal
action for expressing themselves and she knows the sponsor's
heart is in the right place for wanting to encourage voting
through a social media platform that many people participate in.
4:06:41 PM
SENATOR GARDNER said they can't prevent this from happening at
the voting booth, but the bill attempts to make sure if you do
that then you can't use the picture within 200 feet of the
polling place.
4:08:21 PM
CHAIR BISHOP opened public testimony.
4:08:30 PM
MELISSA GOLDSTEIN, Legal Fellow, American Civil Liberties Union
(ACLU), Anchorage, Alaska, supported HB 7, because it provides
clarity about Alaska's ballot laws, so that they are interpreted
in a way that is supported by the Constitution. Prohibitions on
ballot-sharing were originally passed in response to widespread
electioneering issues such as vote-buying back in the 1890s;
Alaska likely adopted these election laws wholesale. Today,
vote-buying is so rare that it is statistically non-existent.
She said photographing marked ballots is protected speech under
the First Amendment. This type of speech is known as core
political speech and is one of the most protected rights.
Photographs restricted based on what they contain, in this case
the ballot, is a content-based restriction, and those are the
ones that receive the highest level of scrutiny, because they
control speech. Laws prohibiting photographs of marked ballots
are too broad, because they prohibit constitutionally protected
speech and not just the speech related to vote buying.
MS. GOLDSTEIN said the ACLU has successfully challenged laws in
other states that have enforced prohibitions on photographing
marked ballots. Today, several other states have expressly
authorized them. And this statute hasn't been a problem in
Alaska because the Division of Elections has a reasonable
interpretation that this law should not be enforced against
people photographing their own ballots.
HB 7 harmonizes Alaska code to conform with the Division of
Election's practice and First Amendment Law, clarifying Alaska
law and safeguarding protected First Amendment speech.
4:11:11 PM
CHAIR BISHOP, finding no further comments, closed public
testimony on HB 7.
4:11:19 PM
At ease
4:11:51 PM
CHAIR BISHOP called the meeting back to order and said HB 7 will
go to the State Affairs Committee next, and he would like the
Division of Elections to let the sponsor know of any concerns
before it is scheduled in that committee.
CHAIR BISHOP commented the last thing he would advise his kids
to do is take a ballot selfie, because 20 years from now she
would be interviewing for a job somewhere and the employer would
bring it up and ask how she voted. Then she would have to
remember. "The less you say the less you have to defend," he
advised.
4:13:22 PM
SENATOR MACKINNON moved to report HB 7 [CSHB 7(CRA), 30-
LS0111\J, from committee with individual recommendations and
attached zero fiscal note. There were no objections and it was
so ordered.
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