PSEPHOS:
STATEMENT ON DOCUMENTING ELECTIONS

Elections have meaning only to the extent that they are transparent and verifiable. Free speech rights provide authority for citizens to observe their elections. But, a conflict, created by government officials, exists between citizens who exercise their unalienable right to alter or abolish government institutions through elections, and the needs of public servants to administer elections. But, the legitimate needs of election administrators are not in conflict with the rights of citizens. The success of election administrators depends on whether citizens accept the results of an election. No election can be successful when the process is hidden from the only group that has a legitimate interest in the outcome. Therefore, administrators need citizens to observe the election process to achieve their only appropriate goal. The current reality is that many election administrators have taken a turn down the path to tyranny by assuming a bunker mentality that seeks to exclude citizens instead of welcoming them. The irony is that welcoming citizens into the process is in their own best interest.

Means of Documenting Elections

Photographic evidence is the most powerful evidence for convincing a skeptical audience of a fact. Anecdotal evidence depends on the credibility of the witness to have a persuasive effect and is, therefore, less effective. Anyone wanting to avoid answering difficult questions, to hide poor performance, or to protect their own self interests will naturally attempt to obstruct efforts to document events they are responsible for. Many elections officials have published policies that seek to prohibit or limit the ability of citizen to document their elections through the use of photography. The following is a brief review of the issues surrounding the use of photography in elections.

Burdens on Fundamental Rights Must Be the Least Restrictive Alternative

The First and Fourteenth Amendments of the United States Constitution establish the right to free speech. The activities of elections officials, including poll workers, are subject to public scrutiny and criticism. The right to free speech necessarily encompasses the right to receive information and ideas. (Stanley v. Georgia, 394 U.S. 557, 564 (1969).) Photography, and similar methods, are a legitimate means of gathering information for public dissemination, and a means that can provide cogent evidence. The California Elections Code states in part:

(9)(A) You have the right to ask questions about election procedures and observe the elections process.
(B) You have the right to ask questions of the precinct board and election officials regarding election procedures and to receive an answer or be directed to the appropriate official for an answer. However, if persistent questioning disrupts the execution of their duties, the board or election officials may discontinue responding to questions.
(10) You have the right to report any illegal or fraudulent activity to a local elections official or to the Secretary of State's Office.
(b) Beneath the Voter Bill of Rights there shall be listed a toll-free telephone number to call if a person has been denied a voting right or to report election fraud or misconduct.
(Elec. Code section 2300, (the Voters’ Bill of Rights).)

In spite of the fundamental rights implicated, the San Diego County Registrar of Voters has published the following policy (in relevant part):

Videotaping or Photography
Photography and videotaping are not allowed by the public or voters during voting hours. However, if someone would like to photograph the seals on voting equipment prior to the opening of the polls or after the polls close they may be permitted to do so.

(San Diego County Poll Workers Manual, pg. 72.)

The policy is a de facto restraint on the ability of citizens to document a public event. The policy is an unlawful prior restraint upon protected speech. (Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 316 & n.13, 317 (1980); Near v. State of Minnesota ex. rel. Olson, 283 U.S. 697 (1931).)

Balancing Interests

Free speech rights must be balanced with other legitimate interests. The convenience of elections officials is not a legitimate interest. But, the law recognizes the importance of privacy interests, especially in elections. The only aspect of an election that is entitled to secrecy is the content of a voted ballot until it is cast. The California Constitution, section 7, states, “Voting shall be secret.” Secrecy of the ballot is critical to ensuring that a voter is free from intimidation so that the true intent of a voter is expressed by the ballot. Intimidation can manifest itself in many ways. In order to create the best environment for voting, the legislature enacted the following:

(a) No person shall, with the intent of dissuading another person from voting, within 100 feet of a polling place, do any of the following:
(1) Solicit a vote or speak to a voter on the subject of marking his or her ballot.
(2) Place a sign relating to voters' qualifications or speak to a voter on the subject of his or her qualifications except as provided in Section 14240.
(3) Photograph, videotape, or otherwise record a voter entering or exiting a polling place.
(b) Any violation of this section is punishable by imprisonment in a county jail for not more than 12 months, or in the state prison. Any person who conspires to violate this section is guilty of a felony.
(c) For purposes of this section, 100 feet means a distance of 100 feet from the room or rooms in which voters are signing the roster and casting ballots.

(Elec. Code section 18541 (emphasis added).) This statute is narrowly drawn to be the least restrictive alternative. In drafting this section, the legislature recognized that elections must be transparent and, thus, only limits photography when it is done with an unlawful intent. In fact, the feelings of the voter are not implicated by this statute. If they were, anyone documenting the election could be subject to arrest merely by a voter reporting that he or she felt intimidated, or did not vote, "because that person over there has a camera in her hand."

Citizen Election Observers (CEO’s) are working to promote the integrity of elections and, therefore, are working to protect voter privacy interests. Election officials who insist on a blanket ban on photographing elections, as opposed to balancing interests, must be seen as leveraging the issue of voter privacy in order to create a pretext designed to serve their own interests.

Photography at the polls is compatible with voter privacy interests. Photography can enhance the privacy of voters when used appropriately. Elections Code, Division 18, sections 18562-18565, identify unlawful conduct, some of which undermines voter privacy. Enforcement of criminal activity requires evidence. Photographic evidence of the criminal activity identified in Division 18 could be critical to prosecuting someone violating voter privacy, including poll workers to whom sections 18562 and 18563 are specifically directed. The reality is that the mere presence of photographic capability tends to inhibit the conduct outlawed by Division 18.

In spite of the claim that documenting elections burdens a voters privacy rights, voters themselves can violate their own privacy interests whether an election is being documented with photography or not. Elections Code section 14287 prohibits a voter from putting an identifiable mark on the ballot. Section 14291 prohibits a voter from showing the contents of a ballot. These sections are directed to behavior by the voters who would undermine their own privacy interests, not to a person documenting the election. Section 14221, which is supposed to limit access to the “voting booth area,” cannot prevent a voter from obtaining assistance from another, or from bringing minors into the voting booth as an educational experience, which would then violate the secrecy of the ballot. And, section 14221 could actually undermine voter privacy by authorizing the precinct board to exercise discretion regarding who may be within the voting booth area. In the balance, photgraphy at the polls does not burden privacy rights, and it improves the integrity of our elections.

Historical Perspective

Educating yourself and election officials is important. The following occurred in San Diego County in 2006: A CEO discovered that the TSx voting machines at a precinct were being used to process votes without seals over the memory cards in place. He attempted to photograph the machines missing the seals and the records documenting the integrity of the machines. He was forbidden from taking the photographs by the precinct inspector who was also taking telephone instruction from the ROV's office. Within minutes afterward, police cars began arriving on the scene. The CEO was then accosted by a representative of the ROV, in the presence of three local police officers, who complained about the attempt to document the illegal activity taking place. Even after the polls closed, the CEO was prevented from photographing the seals. Remarkably, he was told by a representative of the ROV taking calls on a hotline to leave the polling place “right now” even though he had a right to observe the closing. This is one example of how election officials are conflicted by the rights of citizens and their own self interest.

Psephos requested, over a period of more than 12 months, clarification of the San Diego County Registrar of Voters’ policy regarding documentation of elections generally, and the use of photography specifically. At first, “electioneering,” was cited to justify the ban. Once confronted with the actual language of the statute (see section 18541 above), that justification was abandoned. Persistent efforts seeking clarification and a reference to legal authority only resulted in vague references to “case law,” without citing any. Another justification was sensitivity to new citizens migrating from countries under tyrannical governments who might find the presence of cameras unnerving. Having failed to get a definitive answer, Psephos reported in a letter to the County that its representatives would not comply with the ROV’s ban on photography on the grounds that she had no authority to issue the directive. Finally, the County stated its position.

Although you may read the response, we will summarize it for you. Voters have a right to privacy and vote free from intimidation. This is something that the Registrar of Voters claims is a priority. The Registrar of Voters requests that, if someone is exercising their free speech rights to document the election with photography, the activity be conducted within the law and that care is taken to ensure that voters’ privacy interests are not violated.

Conclusion

We hire election administrators to do a job. Persons attempting to document an election should take care not to create a continuing disruption that would impede, obstruct, or delay the ability of poll workers to process voters, or the ability of voters to cast their ballots in private. Do not photograph within 100 feet of a polling place with the intent to dissuade someone from voting. From an election integrity perspective, there is little or no value in photographing voters as they are voting or casting their ballots, as long as the voter is acting within the law. Balance the right to document with the right to vote in private. But, do not concede the use of photography as a means of documentation in order to defend the integrity of your elections. Create evidence, not anecdotes.