The CMLP is currently doing research on the state laws regulating activities at polling places on Election Day. Our specific focus is on laws that impact voters' ability to document their own voting experiences through video and still photography, as well as their ability to carry out other newsgathering functions, such as interviewing other voters outside of polling places. In this post, I'll look at how California's election laws affect these activities.
The California law with most immediate relevance to citizen media creators who want to document the vote is California Elections Code § 18541. This statute makes it a crime for anyone, within 100 feet of a polling place, to "photograph, videotape, or otherwise record a voter entering or exiting a polling place" with "the intent of dissuading another person from voting." The 100-foot zone is measured from the interior voting area itself, not from the exterior of the building; so most of it will likely be inside the polling place.
Because section 18541 requires intent to dissuade someone from voting, it does not appear to ban outright the use of cameras and recording equipment in the 100-foot zone. But it does make such activity risky. Your intent is invisible. While you may not have any intention of dissuading anyone from voting, poll workers might see your conduct differently than you do. You could ultimately prevail before a court if the state chose to prosecute you, but you might still get kicked out of the polling place on Election Day and/or have to deal with some gigantic legal hassles.
Other statutory provisions may also affect your ability to document your own voting experience inside the polling place. First, California Elections Code § 14221 (scroll down to the relevant section) says that voters may only be in the voting area for certain specific purposes -- "receiving, preparing, or depositing their ballots." By implication, this statute may make it unlawful to carry out other activities -- like filming or photographing -- in the voting area. Second, if you're interested in photographing or videoing your own marked ballot, two provision may impact your ability to do so. California Elections Code § 14291 (scroll down) says that "[a]fter the ballot is marked, a voter shall not show it to any person in such a way as to reveal its contents." It's not clear whether this could apply to posting a photo or video of your ballot online after you've already cast it. In all likelihood, no one would bother to enforce the statute in that way. More pragmatically, California Elections Code § 14224 (scroll down) limits your time in the voting booth to 10 minutes, so don't get carried away in there.
Finally, you shouldn't try to interview anyone within 100 feet of the voting area, get too close to other voters with your camera (especially inside), or otherwise interfere with the voting process. California Elections Code § 18502 makes it a crime to "in any manner interfere[] . . . with voters exercising their rights of voting at an election," and California Elections Code § 18541, mentioned above, makes it a crime to "speak to a voter on the subject of marking his or her ballot" within 100 feet of the voting area with the intent to dissuade the voter from voting. Again, the intent requirement may take your newsgathering activity outside of section 18541, but it is certainly something to be aware of. Outside the 100-foot buffer zone, you're generally free to take photographs, film, and interview other voters (with their permission).
If you want to contact California election officials directly to clarify how any or all of these provisions may impact your Election Day activities, please consult our State Law: Documenting Your Vote page for contact information.
Given the tight time schedule between now and the election, we'd love the help of our readers with this election law research. If you know of any other provisions of California law that might affect someone's ability to document the vote, or any cases interpreting California law on these issues, please let us know in the comments. For that matter, if you've got input on election laws in other states, please leave a comment or contact us directly.
Update: A reader provided us with a memo written by Cathy Mitchell, Chief of the Elections Division of the California Secretary of State's office, regarding the use of cameras and video equipment at polling places. The memo says that the Secretary of State "has historically taken the position that use of cameras or video equipment at polling places is prohibited, though there may be circumstances where election officials could permit such use." The memo gives an example: "[I]f a credentialed media organization wants to photograph or film a candidate voting at a polling place, this is something you may permit, provided you ensure such activity does not interfere with voting, is not intimidating to any voters or election workers, and that the privacy of voters is not compromised."
Comments
CA - Videotaping/photography at the precincts
In CA, the prohibition on videotaping/photography at the precincts applies ONLY to the period when voters are NOT present. Observers may videotape the election eve set up, the election morning set up (prior to opening of polls) and the closing process following the close of polls (taping the seals on the machines, the Ballot Statement/Certification documents, the precinct posting documents, etc).
This is a VERY important clarification and I suspect it may apply in many other states as well. There is much that can be documented before and after, and frankly, that is where most of the action is anyway.
I have sent a letter from the Riverside County Registrar of Voters stating that "ANY person may observe Election [eve/morning] set up and the closing of the polls on Election Night. These activities may be photographed and/or videotaped, but observers may not interfere with your [Precinct Captains and staff] duties. This is a MAJOR written concession in a battle we have been waging for nearly four years.
Since Riverside has been particularly shy about putting in writing the right to videotape/photograph, it is a certainty that they researched this very carefully with legal counsel before releasing this letter and consulted with the Secretary of State's office. While it obviously addresses ONLY what Riverside County will allow, I think Election Integrity advocates can take this to their local Registrars of Voters and make the case that if it is legal in one county, and if even the State agrees that the restriction ONLY applies when voters are present, that it should be allowed in EVERY CA county.
I recommend that the Citizen Media Law Project address a letter to the Secretary of State requesting immediate written clarification consistent with the letter I have attached. It would be a HUGE help to the EI efforts for transparency.