Legislature(2017 - 2018)GRUENBERG 120
02/02/2017 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB31 | |
| HB7 | |
| HB31 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 31 | TELECONFERENCED | |
| += | HB 7 | TELECONFERENCED | |
| *+ | HB 82 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 7-DISPLAY OF PHOTOS OF MARKED BALLOT
3:21:48 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 7, "An Act relating to the exhibition of
marked ballots."
REPRESENTATIVE WOOL asked for confirmation that HB 7 would
change [AS 15.15.280] to make a prohibited activity legal. He
asked why the now outdated statute could not be removed.
3:22:58 PM
REID MAGDANZ, Staff, Representative Kreiss-Tomkins, Alaska State
Legislature, on behalf of Representative Kreiss-Tomkins, prime
sponsor of HB 7, explained that HB 7 would maintain the
prohibition against someone sharing his/her own physical ballot,
yet allow sharing a photo, video, or other image of the ballot.
REPRESENTATIVE WOOL asked if the original statute, which
prohibits sharing a physical ballot, also prohibits sharing a
photo image of the ballot.
MR. MAGDANZ agreed that the current statute has been interpreted
to include images of one's ballot. He said the current wording
of the statute is, "Subject to AS 15.15.240 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." He commented that the statute has been
interpreted to refer to sharing the physical ballot or sharing a
photo of the ballot.
REPRESENTATIVE WOOL reiterated that the original statute
prohibits sharing one's ballot, and the statute has been
interpreted to include photos. He asked if HB 7 would remove
the "photo image part" of the statute but continue to prohibit
sharing the physical ballot. He stated that HB 7 would
differentiate between physical ballot sharing and ballot photo
sharing, yet they have been interpreted as being the same.
MR. MAGDANZ responded that the intent of HB 7 would be to
prohibit sharing a physical ballot, and to allow sharing photos,
videos, or images of the ballot.
REPRESENTATIVE WOOL asked if the interpretation of the original
statute - to include photo images - is a result of case testing
or of common belief. He also asked if the original statute
would be reinterpreted to remove photo images from the
prohibition.
3:26:55 PM
LIBBY BAKALAR, Assistant Attorney General, Labor and State
Affairs Section, Civil Division (Juneau), Department of Law
(DOL), replied that the interpretation of the statute to include
photo images has not been case-tested in Alaska. She explained
that the statute was enacted in 1960 along with the prohibition
against political persuasion at the polls. She stated that the
original intent of the 1960 statute was to ensure no one "waved
their ballot around" in order to encourage anyone to vote in a
particular way. She said that at the time of elections, the
Division of Elections (DOE) receives phone calls from voters
asking about the legality of ballot selfies. She referred to
Chapter 15 of the Alaska Statutes, which describes the election
code, and specifically AS 15.56, which addresses election
crimes. She said according to AS 15.15.300, the penalty for
exhibiting a marked ballot is "spoiling of the ballot."
MS. BAKALAR offered that the proposed legislation seeks to
"catch up with technology" and opined that no one in the First
Alaska State Legislature, 1959-1960 anticipated selfies. She
mentioned that the prohibition against selfies has been case-
tested in New Hampshire. The United States Court of Appeals for
the First Circuit declared that a statute actively prohibiting a
ballot selfie was unconstitutional under the First Amendment [to
the U.S. Constitution]. She said that to her knowledge, there
has been no prosecution or civil remedy imposed for exhibiting a
ballot [in Alaska]. She went on to say DOL advises voters who
ask about being prosecuted for the crime of showing a marked
ballot selfie, that clearly the statute was never meant to
encompass photography, because there was no portable photography
at the time the statute was enacted. She reiterated that the
intent of the statute was to prohibit electioneering.
3:29:56 PM
REPRESENTATIVE TUCK offered his understanding that the statute
was enacted not only to prohibit electioneering, but also vote
buying.
MS. BAKALAR agreed and offered that the statute was enacted to
avoid true malfeasance at the polls intended to impact the
outcome of the election. She offered her understanding that
ballot selfies are taken to celebrate the act of having voted
and not to persuade anyone to vote in a particular way. She
admitted that the ballot selfie was "uncharted territory."
3:31:00 PM
REPRESENTATIVE LEDOUX asked about the extent of absentee voting
in 1960, when the law was passed.
MS. BAKALAR replied that she believes absentee voting was
implemented after the law was passed, since the legislature of
1960 was the first legislature after statehood.
REPRESENTATIVE LEDOUX asked how the statute could be enforced at
all with respect to absentee ballots.
MS. BAKALAR responded that the statute refers to conduct at the
polling place.
REPRESENTATIVE LEDOUX offered her belief that vote buying would
more likely occur in the context of absentee voting.
MS. BAKALAR referred to AS 15.20.010 to verify that the "no-
cause or no-fault" absentee voting statute was enacted in 1960,
the same year as the exhibition prohibition statute.
REPRESENTATIVE LEDOUX asked for verification that the ballot
cannot be shown to another person in the polling place, but a
picture of the ballot can be shown and an absentee ballot can be
shown. She wondered aloud if it made any sense to have the
statute at all.
MS. BAKALAR responded that the issue is one of intent and state
of mind. She asserted that the "evil" that the exhibition
prohibition is designed to prevent is vote buying and
influencing the outcome of the election. She went on to say
that whether it is an absentee ballot or a ballot in a polling
place, without the intent to persuade someone else to vote in a
particular way, there is no violation. She agreed that it is
impossible to control everything that happens in regard to
absentee ballots, but, she added, DOE has security measures for
processing absentee ballots. She reiterated that the exhibition
statute is meant to discourage pressure on voters at the polling
place.
3:35:43 PM
REPRESENTATIVE BIRCH commented that if the issue hasn't come up
and if no one has been prosecuted for violating the statute,
"maybe it's better to let sleeping dogs lie."
MS. BAKALAR asserted that the reason to clarify the issue is to
address voter confusion. She reiterated that DOE and DOL do
field a substantial number of phone calls from people asking
about the legality of ballot selfies. She added that as the
current law is technically drafted, it is hard for the agencies
to respond. She stated that the intent of HB 7 is to address
that confusion and tell voters that as long as they are not
trying to politically persuade anyone at the polling place, it
is alright to take a ballot selfie and share it with their
friends.
3:37:42 PM
REPRESENTATIVE KNOPP asked if it would be "cleaner" to repeal
the existing statute rather than modify it.
MS. BAKALAR responded that she didn't think so, since HB 7 would
retain the policy behind the initial statute. She emphasized
that the 200-foot rule is to avoid political persuasion in the
polls, and it is still an important policy. She opined that
amending the statute that prohibits this particular conduct is
better than repealing the statute.
3:38:55 PM
REPRESENTATIVE WOOL offered that since DOL still gets calls
about this issue, the statute change would give DOL a definitive
response. He said, "This is sort of a legal out for the
Department of Law ...."
MS. BAKALAR agreed and added, "... and also for the Division of
Elections and for voters in general." She cited states with
active prohibition and high profile ballot selfie cases, and
offered that HB 7 would reduce voter confusion and allow DOE to
definitively tell voters, in statute, that this conduct is
permitted.
3:40:39 PM
REPRESENTATIVE TUCK stated his belief that the proposed
legislation attempts to balance electioneering with First
Amendment rights. He expressed his concern regarding undue
influence or "vote bullying." He commented that he would like
to see provisions that protect voters from vote bullying, even
in one's own home. He said not only should the person filling
out the ballot be restricted, but the person trying to bully
should be restricted, and there should be a consequence for
bullying. He brought up another concern - the possibility of
people taking photographs when other voters are behind them. He
said he had other concerns about restrictions in the general
area of polling locations. He opined that if ballot selfies are
allowed, they should be allowed only inside the voting booth and
nowhere else in the polling place. He added his belief that it
is not a right to free speech to photograph other people in the
polling place. He asserted that a person should be bound by the
200-foot restrictions, currently in statute, until he/she is in
the voting booth. At that point, he claimed, they are enclosed
and not taking photographs of other people. He concluded that
there should be some sort of limitation on when, where, and how
one photographs.
3:42:28 PM
REPRESENTATIVE KNOPP moved to adopt Amendment 1, [labeled 30-
LS0111\A.2, Bullard, 2/2/17], which read:
Page 1, line 1, following "ballots":
Insert "and the prohibition on political
persuasion near election polls"
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. AS 15.15.170 is amended to read:
Sec. 15.15.170. Prohibition of political
persuasion near election polls. (a) During the hours
the polls are open, a person who is in the polling
place or within 200 feet of any entrance to the
polling place may not
(1) attempt to persuade a person to vote
for or against a candidate, proposition, or question;
or
(2) physically display a photo, video, or
other image of the person's marked ballot in an
attempt to persuade a person to vote for or against a
candidate, proposition, or question.
(b) The election officials shall post warning
notices at the required distance in the form and
manner prescribed by the director."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill section accordingly.
Page 1, line 11, following "(2)":
Insert "subject to the prohibition on political
persuasion in, or within 200 feet of an entrance to, a
polling place under AS 15.15.170,"
REPRESENTATIVE LEDOUX objected for purpose of discussion.
3:43:23 PM
ALICIA NORTON, Intern, Representative Kreiss-Tomkins, Alaska
State Legislature, on behalf of Representative Kreiss-Tompkins,
prime sponsor of HB 7, relayed that the proposed amendment would
prohibit physically showing a photo, video, or other image of a
person's marked ballot within the polling place or within 200
feet of the polling place in an attempt to persuade a person to
vote for or against a candidate, proposition, or question.
3:44:11 PM
REPRESENTATIVE LEDOUX removed her objection to the motion to
adopt Amendment 1.
REPRESENTATIVE TUCK objected for purpose of discussion.
3:44:49 PM
REPRESENTATIVE BIRCH asked if "physically display a photo" means
to send it to someone or share it with someone.
MS. NORTON responded that the phrase means having a phone and
directly putting it "in someone's face."
3:45:11 PM
REPRESENTATIVE TUCK stated that he thinks Amendment 1 is an
important amendment, because it would prohibit electioneering by
a person exiting the voting booth, but still within the polling
location, and would allow the display of the marked ballot photo
only after leaving the polling location. He asserted that he
still has a concern regarding photographs taken within the 200-
foot perimeter, as the person is going to or from the voting
booth. He offered his desire to address that issue at some
point.
REPRESENTATIVE TUCK removed his objection to Amendment 1. There
being no further objection, Amendment 1 was adopted.
REPRESENTATIVE LEDOUX asked Representative Tuck what problem he
has with photographing another person going into and out of the
polling location.
REPRESENTATIVE TUCK responded that a person has a right to
refrain from voting and cited his concern regarding undue
pressure. He offered that people may feel uncomfortable with
being photographed in the voting location and, consequently,
deterred from voting. He mentioned the possibility of a selfie
stick "coming over the top" while in the voting booth. He
asserted that if ballot selfies are allowed as a First Amendment
right, then there needs to be limitations on when and how
photographs are taken.
REPRESENTATIVE LEDOUX asked Ms. Bakalar to confirm that it is
now possible, under our current voting rules, to determine who
has voted and who has not voted, through poll watchers.
MS. BAKALAR responded, "That is correct."
3:48:31 PM
REPRESENTATIVE TUCK asked if any public member could look at the
electoral rolls.
MS. BAKALAR offered her understanding that when the polling
place is opened, election board members are present. They are
trained to control the polling place and maintain proper custody
of the ballots. She added there are poll watchers assigned by
political parties and candidates to be in the polling places,
remain in ear shot of the poll workers, ask for names to be
read, and examine precinct registers. She asserted that the
precinct register is a public record. She maintained that how a
person votes is constitutionally protected, but the fact that a
person voted in a given election is of public record.
REPRESENTATIVE TUCK made the point that the poll watchers must
be trained and abide by rules. He conceded that after the
election is over, when the polling location is closed,
information on who voted becomes public record. He said,
however, that he is not comfortable with people, who are not
trained and do not know the rules, being able to take
photographs in polling locations as voters come and go. His
concern, he said, was in regard to voter intimidation. He
stated his belief that there should be more restrictions on when
and where polling location selfies may be taken.
3:50:24 PM
CHAIR KREISS-TOMKINS asked for clarification that "photographs
of people coming in and out of the polls," as Representative
Tuck mentioned, is not in reference to a photograph of a ballot
in the ballot booth, but taking photos of people who are waiting
to cast their ballots.
REPRESENTATIVE TUCK confirmed he was referring to a selfie
photograph including someone else in the polling location.
CHAIR KREISS-TOMKINS asked if the scenario described by
Representative Tuck was currently legal.
MS. BAKALAR stated that she doesn't believe there is any polling
place photography prohibitions. She mentioned that the media is
in polling places every election day.
3:51:53 PM
REPRESENTATIVE BIRCH suggested that it would be impossible to
keep reporters or cameras out of polling places, and a person's
presence at the polling place is public information. He
maintained that one's personal space in the voting booth remains
sacrosanct.
3:52:36 PM
REPRESENTATIVE KNOPP commented that there is no perfect
legislation and there will always be more "what ifs." He said
he sees no problem with HB 7 or the [the adopted] Amendment 1.
He opined that [the adopted] Amendment 1 addresses
Representative Tuck's concern in that it cites the prohibition
against political persuasion. He stated he supports the bill,
as amended.
3:54:10 PM
REPRESENTATIVE LEDOUX asked Ms. Bakalar, "What kind of training
are poll watchers given?"
MS. BAKALAR said there is a poll watcher's handbook but no other
formal training.
REPRESENTATIVE TUCK opined that it is appropriate to ask "What
if, what if, what if?" He expressed the importance of making
sure that any ballot photo be limited to a person's own ballot.
He referred to language in [the adopted] Amendment 1, beginning
on page 1, line 12 [as numbered in the amendment], which read:
(2) physically display a photo, video, or
other image of the person's marked ballot in an
attempt to persuade a person to vote for or against a
candidate, proposition, or question.
REPRESENTATIVE TUCK voiced his concern that "person's" refers to
the individual person's ballot and not some other person's
ballot.
MS. BAKALAR confirmed that was her understanding - that
"person's" refers to the person who is taking a picture of
his/her own ballot.
CHAIR KREISS-TOMKINS asked if HB 7 would be clearer if the word
"person's" [adopted under Amendment 1] were changed to
"voter's".
MS. BAKALAR agreed.
REPRESENTATIVE TUCK expressed that he was comfortable with [the
adopted] Amendment 1, with the explanation that "person's"
refers to the person who marked the ballot. He added that any
necessary change to HB 7 could be made "down the road."
3:58:29 PM
CHAIR KREISS-TOMKINS opened public testimony on HB 7.
3:58:52 PM
TARA RICH, Legal and Policy Director, American Civil Liberties
Union (ACLU) of Alaska, said that the provisions of the election
statutes originally came from the Australian Ballot Reforms and
were enacted in the 1890s as a result of widespread election
problems in the United States. She attested that Alaska adopted
the laws [prohibiting the display of ballots] wholesale as all
states had done. She asserted that the laws were in response to
the practice of political parties using color-coded or otherwise
distinctive ballots, which made it obvious for whom a person was
voting, and thus made it easier to influence voting and buy
votes. Ballot laws were enacted that outlawed displaying
ballots. Ms. Rich claimed, "That, in America, is what allowed
us to have a secret ballot."
MS. RICH went on to say that as technology has advanced, the
prohibition against displaying one's ballot was too broadly
worded. She gave her opinion that [the adopted] Amendment 1 is
needed, because the ACLU has challenged these laws in five
states that use the interpretation of photographing a ballot as
a violation of the election laws. She said that in her opinion,
Alaska has avoided legal challenges because of DOE's reasonable
interpretation of the law - that it should not be enforced
against people photographing their own ballots.
MS. RICH pointed out the second aspect of the issue, that one
has a free speech right to take a photo of his/her own ballot.
She said this right is known, in legal terminology, as core
political speech, and is one of the most protected rights. She
offered that photographs of people going into and out of polling
locations are currently completely legal. She said that
currently the only photo restriction in a polling place is that
of the ballot itself. She said if the law restricted what a
photograph could contain, it would be unconstitutional, because
it would be a "content-based" restriction. She added that
controlling speech in that way would almost assuredly be a
violation of the First Amendment right to free speech.
MS. RICH stated her third point, which is that this issue isn't
just about voter confusion, but is also about legal
vulnerabilities for the State of Alaska. Ballot selfie
prohibition may become a legal liability for DOE.
4:04:28 PM
TASHA ELIZARDE testified that she supports HB 7. She said she
is a 17-year-old high school student who cannot yet vote. She
said in two or three months she will be eligible to vote and
looks forward to commemorating the event by taking a ballot
selfie. She conceded that the issue HB 7 addresses is a small
issue, but stated, "I personally think it's all about being able
to express my First Amendment right." She asserted that
allowing ballot selfies would create a more civically engaged
community through social media, especially among teenagers.
MS. ELIZARDE said she is a senior at Juneau Douglas High School
(JDHS). She said she discussed HB 7 with two government classes
taught by Gary Lehnhart and reported that the vast majority of
the approximately 40 students in those classes supported HB 7
for the same reasons she supports it. She reiterated those
reasons: to encourage self-expression and to engage more
teenagers in the political process. She opined that with all
the legal issues that were raised in the committee meeting, HB 7
would be a good way to clarify the statute. She conceded that
the law was instituted for good reasons, but "times have
changed," and most people who choose to take a ballot selfie, do
so because they want to express their love for voting or support
for a candidate, not to intimidate other voters. She
reemphasized that she fully supports HB 7.
4:07:43 PM
CHAIR KREISS-TOMKINS closed public testimony on HB 7.
REPRESENTATIVE TUCK referred to the testimony of Ms. Rich of the
ACLU, as well as page 1, lines 5 and 11, specifying the "voter's
ballot" or "voter's marked ballot", and agreed with the
recommendation that changing [the language adopted under]
Amendment 1 to read "voter's marked ballot" would make the
language consistent with the rest of the statute.
4:09:11 PM
REPRESENTATIVE LEDOUX moved to report HB 7, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 7(STA) was
reported out of the House State Affairs Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB082 Sponsor Statement 2.1.2017.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |
| Hb082 Supporting Documents FAQs 2.1.2017.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |
| HB082 Sectional Analysis 2.1.2017.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |
| HB082 ver A 2.1.2017.PDF |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |
| HB082 Supporting Document Letters 2.1.2017.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |
| HB082 Supporting Document Community List 2-1-2076.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |
| HB 082 Fiscal Note 1.28.17.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |
| HB 082 Draft Proposed Amendment ver A.1 2.1.17.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |
| HB007 Draft Proposed Amendment ver A.2 2.2.17.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 7 |
| HB082 Powerpoint Presentation.pdf |
HSTA 2/2/2017 3:00:00 PM |
HB 82 |