Mr. Karan:
I have reviewed your letter of January 23rd, in which you indicate
that you plan to take pictures and videotape at the polls on Tuesday. You
questioned the statements in the poll worker training materials that limit
these activities during voting hours. I have discussed your concerns with
Deborah Seiler. As the Registrar of Voters, Ms. Seiler’s concern is that
both voters and poll workers have a positive experience on election day,
that voters feel secure in the secrecy of their ballots and that they are
free of the sort of overt or tacit intimidation that led to the passage of
the various privacy provisions of the Elections Code. I am sure as an
activist interested in the electoral process, that you must share that
concern.
The California Constitution, Article II, Section 16, mandates that voting be
done in secret. The Voter Bill of Rights, cited by you in your letter,
provides that voters will have the right to vote in secret, free from
intimidation. Several other provisions of the Elections Code protect voters
from intimidation and guard the secrecy of the ballot. For instance,
Elections Code §§ 18562-18565 criminalize actions impacting voting secrecy.
Concerns about the effects uninvited photography or videography may have are
reflected in Elections Code section 18541 which prohibits the taking of
photographs within 100 feet of a polling place with the intent to intimidate.
“Intent” in such a context would, generally, have to be inferred from the
circumstances at hand. Certainly, an individual who photographed voters
after being asked to stop, could be inferred to act with the intent to
intimidate.
Intimidation is also prevented and secrecy protected under the various
Elections Code provisions barring non-voters from the voting booth area
(§14221), from showing the contents of a ballot (§14287), or from putting an
identifiable mark on the ballot (§14291). The provisions I have cited are
illustrative of how seriously these principals are taken by the Legislature
and by the Registrar of Voters.
Understanding this, you can see why poll workers would be advised
that photography is not allowed in the polling place. As you suggest in your
letter, we do not want to place our volunteer poll workers in the position of
having to perform complex constitutional analyses or try to discern a
photographer’s “intent” all while protecting the secrecy and integrity of the
vote and keeping their polls running securely and efficiently. I am sure you
also noted that the manual did not direct the poll workers to call the police
in the event someone snaps a picture at the polling place. It is anticipated
that they will call the Registrar if an issue comes up and the ROV will make
those close calls, if necessary. Frankly, outside of the press, I am not
aware of anyone attempting to take pictures inside a polling place in the
last four years.
While my first concern when you raised the specter of photography in the
polling place was the privacy of the voters, your letter seems to indicate
that you are mostly interested in taking pictures of documents. With the
exception of the poll books, which contain the original signatures of voters,
I do not think the ROV has a problem with you taking pictures of the
documents and signs displayed at the polls. They would be available through
a public records act request after the election period anyway. The key, of
course, is that your activities must not obstruct or delay the poll workers
in the performance of their duties or affect the voters as they attempt to
check in or cast their vote.
You also mention your plan to “document illegal activity.” While I do not
know what illegal activity you are expecting to document, you should insure
that your efforts to photograph what you perceive to be illegal conduct do
not obstruct the poll workers in the performance of their duties, or serve to
intimidate voters or affect the privacy of their ballot. And, of course, if
you do observe what you believe to be illegal or fraudulent activity it is
hoped that you will exercise your right to immediately report the incident to
the ROV at the posted hotline number (800) 696-0136 so that it can be
promptly investigated.
If you do feel the need to photograph or videotape at the polls, I
hope that you will follow the appropriate regulations:
• Do not obstruct or delay the poll workers in the performance of their
duties.
• Do not enter or photograph in the voting booth area.
• Do not photograph voters as they are voting or casting their ballots.
• Do not photograph voters who have asked you not to – such conduct
could be viewed as evidence of an intent to intimidate.
• Do not photograph documents which contain voter signatures. You may
examine them, but for obvious reasons, their original signatures should not
be copied.
If a poll worker asks you not to photograph in the poll, rather than debate
the merits of your legal position with them I would hope that you will call
the ROV so that your questions can be resolved. With that in mind, I would
like to suggest that you call me Tuesday if you run into problems. I will be
“in the field” that day, and can be reached by cell phone.
If you would like, we can even arrange to meet at the first polling place you
plan to visit after voting begins at 7:00 a.m., and we can discuss your plans
for the day and see if we can reconcile your right to observe the election
process while meeting the privacy and security needs of the voters. Please
email me or call me if such a meeting would be something you would find
useful.