HB 7-MARKED BALLOT PHOTOS; PERSUASION AT POLLS  4:16:41 PM CHAIR MEYER called the committee back to order and announced the consideration of House Bill 7 (HB 7). 4:17:15 PM REPRESENTATIVE JONATHAN KREISS-TOMKINS, Alaska State Legislature, Juneau, Alaska, sponsor of HB 7, provided an overview as follows: This bill would officially allow Alaska voters to take and share "ballot selfies" the photos that people take of themselves or their ballots in the voting booth. Technically, it's illegal to share one in Alaska right now, though in practice, the law goes unenforced. Sharing ballot photos was traditionally prohibited to prevent voter intimidation and vote buying (e.g., someone tells or pays you to vote a certain way, and makes you show a picture of your ballot to prove you did). But technology and the internet have changed the reasons we take and share pictures: ballot selfies have become a common way to express support for a candidate, a cause, or the act of voting itself. Alaska would be stepping into well-charted territory by allowing ballot selfies. Many other states recognize ballot selfies as a form of political speech, protected under the First Amendment. Bans on selfies have been struck down as unconstitutional in New Hampshire, Indiana, Nebraska, Rhode Island, Michigan, California, and Utah, joining states like Washington, Oregon, California, and Montana which never outlawed selfies to begin with. There's no evidence to suggest ballot buying is a widespread problem in Alaska: the state does not enforce the current law that bans ballot photos. If ballot selfies are legalized, standing laws which criminalize voting interference would remain (AS 15.56). REPRESENTATIVE KREISS-TOMKINS summarized that "ballot selfies" is technically illegal but is not enforced and arguably unconstitutional. He noted that the law has never been challenged in court. He set forth that HB 7 effectively brings the law into alignment with what is currently happening while acknowledging and recognizing the "ballot selfies" practice is legal and an expression of free speech. He added that the law results in ambiguity where the Division of Election receives calls who might have posted a photo of their ballot to enquire if their act was illegal. SENATOR WILSON noted that Section 1(a)(2) pertains to the prohibition of political persuasion near election polls as follows: Physically display a photo, video, or other image of the person's or another person's market ballot in an attempt to persuade a person to vote for or against a candidate, proposition, or question. He asked if the intent of the section is to address a person that displays their selfie photo. 4:19:29 PM NOAH STAR, Staff, Representative Kreiss-Tomkins, Alaska State Legislature, Juneau, Alaska, answered as follows: What that section allows is for someone to share a photo of their ballot with another person or with the public on line 11. So, if I were to take a picture of my ballot, I could post it on Instagram or Facebook, or share it with my friend, "Hey, this is my ballot selfie, this is who I vote for, I'm very excited about it," after I left the polling place. CHAIR MEYER noted that Anchorage has gone to a ballot by mail and asked what would happen if a person takes a selfie with their ballot. MR. STAR replied that the prohibition only deals with voting in the polling place. He added that there is a separate section of election statutes that talks about absentee law, but the proposed prohibition does not apply to the absentee section of law. CHAIR MEYER asked if the proposed bill would not be necessary if the state goes to a mail-in ballot. REPRESENTATIVE KREISS-TOMKINS answered correct. He disclosed that he is on the elections working group with Senator Stevens and noted that the group has been contemplating how things have worked for the Municipality of Anchorage. He opined that if Alaska ever considered vote by mail, the system would likely be a hybrid that continues to incorporate polling places. CHAIR MEYER asked if allowing selfies in polling places would be disruptive. 4:22:22 PM REPRESENTATIVE KREISS-TOMKINS noted that selfies were currently happening. He remarked that it is hard to say within a ballot booth if a person is taking a long time to contemplate their ballot or taking a photo. CHAIR MEYER pointed out that currently a poll worker could tell a person they could not take a selfie whereas there is nothing a poll worker could do should the proposed bill pass. REPRESENTATIVE KREISS-TOMKINS answered as follows: Right now I'm not sure there is any scenario in which a poll worker can, I mean if someone is taking a lot of time in the ballot box I'm not sure anyone is able to because you're not allowed to look in, whether they are just reading every last word at excruciatingly slow pace of a ballot initiative or a constitutional amendment or whether it's because they are taking a photo, I'm not sure what recourse exists if somebody is taking a long time in a ballot box, I've actually never contemplated the question. I can say it hasn't come up thus far as an issue or concern, at least from the Division of Elections, not to say that it isn't happening out there somewhere. SENATOR GIESSEL asked for a sectional analysis because she was not clear what the bill is doing 4:24:58 PM MR. STAR provided the sectional analysis for HB 7 as follows: Section 1 Amends AS 15.15.170 to prohibit any attempt to persuade other voters through the physical display of a photo, video, or other image of a person's ballot in a polling place or within 200 feet of any entrance to a polling place. Section 2 Conforming change to existing AS 15.15.280 due to the new subsection created in section 3. Section 3 This section is the central policy change. Amends AS 15.15.280 to exempt "ballot selfies" from the statutory prohibition on exhibiting marked ballots. A new subsection (b)(2) allows a voter to share a photo, video, or other image of her or his own marked ballot with the public, if they so choose, subject to the restriction established in section 1. He summarized that the bill creates a narrow exception to the existing prohibition on exhibiting a marked ballot. He specified that the exception is authorized in section 3. 4:26:17 PM SENATOR GIESSEL addressed section 2 as follows: So, it says here that the voter cannot display a photograph of the ballot that would enable another person to ascertain how the voter market the ballot. Is that a correct interpretation of the words written on that section? MR. STAR answered yes. He added that the "B" point in section 3 establishes the exception. SENATOR GIESSEL continued as follows: Right, I'm sticking to section 2 right now. So, they can take a picture of themselves with a ballot but not the actual marked areas of the ballot? MR. STAR answered yes. He said section 2 says that a person cannot take a picture of their ballot so that one could figure out how a person marked their ballot. SENATOR GIESSEL continued as follows: Okay, that's correct, that's what I just said and I'm asking you if that's a correct interpretation? Now I'm going to ask you about section 3. So, what section 3 seems to be saying is once you leave the polling place, you can send that picture that you've taken that does not show how you marked your ballot, but you can send it after you leave the 200 feet from the entrance of the polling place. MR. STAR replied as follows: If I'm understanding correctly, I think I'd only amend what you said to say that you can take a picture of the ballot and once you leave the polling place this section 3 allows you to post that picture and share your marked ballot on the internet or with someone else. SENATOR GIESSEL responded as follows: Which is what I think I just said but perhaps I wasn't clear, but the fact of the matter is when you say, "marked ballot," the person who receives this picture regardless of where you are standing or what time of day it is, cannot ascertain how you voted on that ballot. 4:28:18 PM MR. STAR explained as follows: You can post a picture of your ballot in such a way that shows who you voted for as established by section 3, that's what the exception allows and apologizes if I'm not understanding properly what you are suggesting, but what section 3 allows is that you can post a picture of your ballot in such a way that it does show who you voted for. SENATOR GIESSEL replied as follows: This seems to want it both ways then. So, it says in section 1 that the person who receives this photograph can't tell how you marked the ballot, that's what it says, excuse me, section 2 says, you are not able to ascertain how the voter marked the ballot. So, I'm confused, it says the voter can exhibit the voter's ballot, so you can't tell how it is marked, now you are saying in section 3, "Oh, well yes you can." Can you explain that? MR. STAR explained as follows: AS 15.15.280 in section 2 establishes a general prohibition saying that in most cases one cannot display their marked ballot by photo or whatever reason. Section 3 establishes a narrow exception to that general prohibition saying that if you are requesting assistance under AS 15.15.240 in order to vote, or if you are not posting a photo, video or other image of your marked ballot in the polling place within 200 feet then you are okay, it is legal for you to post that photo, video or other image. SENATOR GIESSEL replied that Mr. Star's explanation made no logical sense to her. CHAIR MEYER commented as follows: If I'm understanding this correctly, and I may not be either, is that once I get outside of the 200 feet of the polling place then I can post that picture in how I voted, how I marked the ballot, is that correct? MR. STAR answered correct. He specified that section 1 was meant to prohibit someone with malicious intent, taking a picture of their ballot in the privacy of the voting booth, coming outside waiving their photo around to show what he or she voted for. He emphasized that the intent of the bill was to prohibit the behavior he previously described. He specified that the intent of HB 7 was to allow an individual to post a picture of their ballot on social media once they leave the polling place. 4:31:02 PM CHAIR MEYER asked if it is currently illegal for him to post a photo of how he voted within 200 feet of the high school where he voted. REPRESENTATIVE KREISS-TOMKINS explained as follows: I believe the origin of the 200-feet language relates to election law that presently exists and you can't have signs, etc. The thought is that if you have this image on your phone and you are showing it to other people, that kind of falls in the same class of behavior, but to answer your question, if you are posting that photo on your phone or showing to other people, that is prohibited until you are 200 feet from the doors of your high school. CHAIR MEYER inquired when a person would know when they are able to post a picture. REPRESENTATIVE KREISS-TOMKINS replied as follows: I think the same way that people need to if they are wearing the button of a candidate they are supporting, I think what happens in a lot of Alaskan communities in my experience is they've got poll workers that remind people when they see them, they are not necessarily on specific perimeter patrol exactly 200 feet from the door of the polling place, but if they get close and a polling person is around they would say as a general reminder that an individual has to take their political display down because it is the law. I would be surprised if it is enforced in overwhelming precision but probably the spirit of the law was what really matters. SENATOR EGAN disclosed that he has received photos from "friends and enemies" showing how they voted. He pointed out that the bill just tries, "To make it a little more legal if they follow the law." 4:33:29 PM CHAIR MEYER argued that poll workers currently can say, "Don't do that because it is illegal." SENATOR EGAN noted that poll workers have yet to tell someone not to take a photo. He pointed out that no one knows what a person is doing in a voting booth once the curtain is drawn. CHAIR MEYER noted that the bill says, "within 200 feet." SENATOR EGAN explained that a person can send their photo when they are 200 feet away from the polling station. CHAIR MEYER pointed out that a person taking a selfie when they enter a polling station is illegal. SENATOR EGAN agreed and asked Representative Kreiss-Tomkins to confirm that REPRESENTATIVE KREISS-TOMKINS answered correct. CHAIR MEYER noted that there was a question brought up about whether to allow selfie photos would be based on freedom of speech. REPRESENTATIVE KREISS-TOMKINS commented as follows: My recollection is that a similar law was challenged in New Hampshire and was struck down as unconstitutional on First Amendment grounds. SENATOR COGHILL remarked as follows: I think with our right to privacy in Alaska and your ability to be private within the voting booth it would be quite a stretch to be able to prohibit it in the polling booth, but what you could do is keep people from playing a video or something as soon as they got out of it. I think it's the impact of influencing other people over against your private life. I think they probably would never stop it if it was happing in the polling booth, but if you came out and started running a video of you doing it, you would probably be asked to leave and shut it off. Even bumper stickers, people drive up to a polling booth with bumper stickers and they will genteelly ask you to cover it up or take it off. I think that is the issue here and it looks like an artful way of doing it and yes, I think it's one of those things where you are trying to guard people's privileges of expressing themselves while protecting those from being unduly overly influenced. It's just an artful way of dealing with the technology that we have to deal with in our world. The 200-foot limit probably is going to be a problem because it used to be just sign-waving, that was the big deal, but they could get themselves a little blue tooth speak and put it out there, so I think 200 feet is probable okay. 4:36:46 PM SENATOR GIESSEL commented as follows: I just have a comment in response to what Senator Coghill has just said about freedom of expression, and the sponsor and his staff saying you can't come out of the voter's booth and try to influence other people. Now, as I look at this section you've given us of HB 7 testimonies, of course most of the testimony comes from Juneau, which is interesting, there's one here from Anchorage and this looks like a young woman who is 18. I appreciate the power of social media over young people, that to me speaks to influence and undue influence, in my opinion. We know that social media has caused a lot of behavior that we in this body, certainly, and society would not condone. I do believe that it is a very powerful media that drives people to do things that they don't think about. I don't share Senator Coghill's feeling that this is harmlessly constitutional. SENATOR WILSON asked why consideration was not given to include absentee or mail-in ballots. 4:38:50 PM REPRESENTATIVE KREISS-TOMKINS explained as follows: My understanding is that presently it is not illegal or criminal if you have an absentee ballot for that ballot to be displayed to another person. Presently, ballot parties or just for non-Anchorage elections, if a husband and wife both get their absentee ballots before going off on a trip that is going to prompt to be gone on election day, it's not illegal for them to fill it out at the same time and if they want to show the other who they are voting for, they are able to do so and it's not technically against the law. We're just not going there and changing that law one way or the other given that all of that is presently legal. I haven't been made aware of any problems with the status quo. SENATOR WILSON asked if photos during early voting was included in the legislation. REPRESENTATIVE KREISS-TOMKINS replied as follows: My understanding is the real demarcation line is whether or not you are at a polling place and since early voting happens at a polling location, a ballot selfie or taking an image and sharing it with other people is technically illegal or criminal. So, even though it is not election day because you are at a polling place, that's the criteria that is really at play. 4:40:57 PM CHAIR MEYER opened public testimony. 4:41:08 PM ANDERS MARIUS, representing self, Sitka, Alaska, testified in support of HB 7. He said being allowed to take a picture of your ballot and posting it is a personal choice and a personal freedom that would be granted by HB 7. 4:42:29 PM CHAIR MEYER closed public testimony. He asked the Alaska Division of Elections if taking photos in voting booths was an issue. 4:43:01 PM BRIAN JACKSON, Program Manager, Alaska Division of Elections, Juneau, Alaska, answered as follows: I don't know that I would necessarily call it an issue, but the Division of Elections does receive phone calls in the election cycle asking about the legality of this. Obviously as Senator Egan spoke people are doing this, taking selfies of themselves and sharing it with others. CHAIR MEYER asked if poll workers currently can tell someone not to take a photo. MR. JACKSON replied that poll workers could address the issue if someone was identified. CHAIR MEYER asked if the bill would make it legal for voters to take a photo of their ballot in the ballot booth. MR. JACKSON answered that taking a photo would be legal under the proposed legislation, but if someone were to come out of the ballot booth and display their ballots to anybody within the 200 foot range then the poll worker would identify that and they would have to "spoil the ballot," then the voter could have a second attempt at voting without displaying their ballot. CHAIR MEYER replied as follows: When you say, "spoil the ballot," what if they are just taking a picture of it, doing a selfie? MR. JACKSON answered that if the person voting does not display their ballot within the 200-foot range, then taking a ballot selfie would be allowed under the proposed legislation. CHAIR MEYER commented as follows: How would you know that? Sometimes when you are waiting in line you've got your iPhone out and you are looking at it, that person could be displaying their ballot to somebody in the line, how would you know? MR. JACKSON answered as follows: The poll worker would be able to identify that at the time, more than likely. If they recognized it as displaying their ballot to others in the polling location, then they work with them to "spoil" their ballot. 4:46:05 PM CHAIR MEYER asked if the Division of Elections has a position on the bill. MR. JACKSON answered that the Division of Elections does not oppose HB 7. 4:46:58 PM CHAIR MEYER held HB 7 in committee. He remarked that the bill is confusing as written as to what a person can or cannot do and the legislation would be addressed at the next committee meeting. SENATOR WILSON asked if the Division of Elections has considered allowing voters to use "sample ballots" in the interim to take photos with should the legislation not pass. MR. JACKSON answered that the Division of Elections could discuss Senator Wilson's proposal. He noted that the "sample ballot" idea might create more work for poll workers and pointed out that some polling stations are busy. SENATOR WILSON opined that taking pictures of your sample ballot would be perfectly legal. MR. JACKSON replied that a person could take a photo of a sample ballot unless the polling station ran out of ballots. He noted that there is a provision for polling stations to utilize sample ballots as official election ballots should the polling station run out of ballots.