Written by David Greenwald Thursday, 08 November 2012 07:32
COMMENTARY - Even a free society has to draw lines. We allow freedom of speech to dictate most rules of elections, and rightly so. However, we also assume that once the voters go into the polling place, they need to be given the time and space to make their own freely-formed decision.
That's why we have rules that prohibit campaigning within 100 feet of a polling place. Our assumption is that persuasion has to end at some point, and we do not want voters having to put up with competing campaign claims as they are trying to make the most important decision they have to make for our democracy - at least until the next election.
The Davis Patch reports and has a video of Occupy Davis protesting in front of the polling place at the Davis Senior Center on Tuesday.
They reportedly had signs stating: "The Deck is Stacked. Change the System" and "If You Want Change, OCCUPY."
The protesters argued, "The signs were not related to any candidates or issues on the ballot," and therefore it technically did not violate prohibitions against campaigning in front of a polling place.
But I disagree. The idea of not campaigning in front of the polling place should not be limited to merely supporting candidate A over candidate B - though, admittedly, that is a much bigger and more concerning problem.
This is more fundamental. This is an attack or at least a critique of the system of democracy itself.
The protesters argued that they are Occupying Election Day because: "In a system where large numbers of voters are disenfranchised, where the most principled candidates are labeled 'spoilers,' and where big money determines election outcomes, the deck is stacked in favor of the ruling class, and we will always be fighting an uphill battle in electoral campaigns."
They add: "It doesn't have to be this way, but we will have to change the system in order to level the playing field and achieve true popular victories."
They continue, "There is a saying that if voting changed anything it would be illegal. Well, voting must make a difference, because entrenched politicians across the country are trying to keep large groups of people from participating."
They later write: "California's new open primary has erased third parties from all but the Presidential race, giving anti-Wall Street voters no choice."
"All adults deserve equal representation," they argue. "We need a secure and transparent election process, universal enfranchisement, same-day registration, direct election of the President, democratization of the Senate, and a multiparty democracy where citizens are free to join a party of like-minded people and run their own candidates."
They hit on the lesser of the two evils problem in politics, as well, writing, "There is a notion that if you vote for the candidate you really like, you will help the candidate you like the least. This is antithetical to democracy." Here they blame the winner-take-all system from the local level on up.
The bottom line, however, is not whether or not you agree with their message.
It is technically true that they are not pushing any one candidate. However, this is politicking at the polling place. It is an ideological attack on the process and that cannot happen, not at a polling place.
But, more importantly it is an argument for none-of-the-above. That's a political choice that people can make - abstain from the process. The problem is the polling place is not the appropriate time or place to make that statement.
Perhaps you agree with them. Perhaps you don't. The question here is not the message, it is the timing and location of expressing that message.
I would argue this is not the time or place to have that discussion. People are making decisions critical to our democracy. They need to have that space, that time, to focus on the decisions that they are going to make, or making sure that they vote the way they intend. Anything that distracts from that one mission detracts from the system itself.
If you want to change the system, you need to get your message before people cast their votes, not while they are trying to vote.
Then again, if you disagree with system - as they clearly do - why would you bother to abide by that system?
That is fine, civil disobedience has its place, of course, but law breakers - even when they are engaging in protest - need the appropriate punishment, as well. That is how the act of disobedience is supposed to work. Or, at least, so some will argue.
---David M. Greenwald reporting
"However this is politicking at the polling place. It is an ideological attack on the process and that cannot happen, not at a polling place." Freedom of speech shouldn't be abridged just because it annoys David Greenwald. "That is fine, civil disobedience has its place of course, but law breakers - even when they are engaging in protest need the appropriate punishment as well." There is no crime here to be punished .
CA election code 18540-18541
18540(a) Every person who makes use of or threatens to make use
of any force, violence, or tactic of coercion or intimidation, to
induce or compel any other person to vote or refrain from voting at
any election or to vote or refrain from voting for any particular
person or measure at any election, or because any person voted or
refrained from voting at any election or voted or refrained from
voting for any particular person or measure at any election is guilty
of a felony punishable by imprisonment pursuant to subdivision (h)
of Section 1170 of the Penal Code for 16 months or two or three
(b) Every person who hires or arranges for any other person to
make use of or threaten to make use of any force, violence, or tactic
of coercion or intimidation, to induce or compel any other person to
vote or refrain from voting at any election or to vote or refrain
from voting for any particular person or measure at any election, or
because any person voted or refrained from voting at any election or
voted or refrained from voting for any particular person or measure
at any election is guilty of a felony punishable by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for 16
months or two or three years.
18541. (a) No person shall, with the intent of dissuading another
person from voting, within 100 feet of a polling place, do any of the
(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, video record, 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
(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.
Where's the violation, David ?
I think the article raises some good issues to talk about. I think all of you know how I care about direct democracy and having the right to vote on big issues of the day. On Sept 6th, 2011, a CC majority of 4 tried to strip away our right and obligation to vote on a huge public utility project.
If there was anyone in Davis who would confront someone interfering with a voter's right to walk undistrurbed from the curb to the polling booth, it would be me.
But from the photo of those two sign holders, they look pretty quiet and harmless, and obviously not promoting any particular ballot measure or candidate. They are also not saying "DON'T VOTE," etc etc.
GOod points to raise, DV, but I don't see too much else with this subject?
It is illegal. The operative decision is Burson v. Freeman. The Supreme Court of the United State upheld the ruling that holding up political signs around polling places is a form of voter intimidation. The decision reads in part:
"We find that this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States' compelling interests in preventing voter intimidation and election fraud. Here, the State, as recognized administrator of elections, has asserted that the exercise of free speech rights conflicts with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud. A long history, a substantial consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right. Given the conflict between these two rights, we hold that requiring solicitors to stand 100 feet from the entrance."
I agree that these people were just annoying. Check out this Letter to the Editor in today's Enterprise!
"An 87-year-old longtime Davis resident (my mother), Corinne Cooke, was delayed from voting in Davis on Tuesday because she was wearing a T-shirt with a photo of Michelle Obama that includes a message saying “Forward.” She was told to sit in a corner, while on an oxygen tank, and instructed to remain there with no voting rights until a supervisor could be contacted.
After repeated delays, Freddie Oakley, Yolo County clerk/recorder, arrived to escort my mother to a booth to exercise her voting rights. I am tickled at the thought of my mother being held in detention till the so-called “principal” could release her to vote and struggle to her car to go home. Gotta love Davis and my mother!
San Luis Obispo"
DAVID! You need to read "Joseph Anton" by Salman Rushdie and learn where mucking with freedom of speech goes, buddy. Send my your snail mail addy. I will buy a copy for you. Freddie
1) I was called to the Occupy sign-holders at the Sr. Center and I decided how to handle it.
1) They were not electioneering under any reasonable construction of the Election Code.
2) Our expert "roving inspector" measured the distance from the polling place to the sign holders and asked them to move a greater distance away, and they did so without complaint or demur."
3) They were more than 100 feet from the room where polling was taking place most of the time, even though that was not legally required, in my opinion.
4) We get regular complaints from people who are offended by having to vote in a church with a big old picture of Jesus looking down on them. Ditto complaints about having to vote in an Elks Club because there is a "bar" there, even though the bar is not serving.
I GET IT! I hate voting where there are a lot of sports memorabilia. I consider organized sports to be a waste of valuable time for all concerned, a corrupter of public values since it rewards "winners", an inducement to use dangerous "performance enhancing" drugs, a great sucking of money from the many to the few, and a partner to the gambling industry, which I REALLY hate.
But as long as the Peyton Manning posters don't impede my progress or try to influence my vote, I'm going with freedom of expression every time.
Don't get me started on the voter Mr. Cook refers to. I love her, but she was a poll worker for years, and she knows the law. She was sailing too close to the wind with that shirt. She was offered an emergency "cover up" which she refused. She was offered a cardigan sweater which she refused. She wanted to wear an Obama shirt in the polling place. We didn't roust her. I asked her to vote and then I walked her out. She did just fine, and she knew what she was doing. I would have done the same had she been wearing a Romney shirt - even if it were just Mrs. R. Anyone knows what the shirt meant, for goodness sake.
Don't send your addy, Davis. I found it and "Joseph Anton" will soon show up at your door. Be nice to him. He went through hell because he wrote a book. And a LOT of journalists and other writers thought he should apologize for it. Please do not be in that group. Read this book. Then be in the group that says, "Hell yes! Freedom of expression. Even when it is dumb or unreadable, or impossible to understand, or inconvenient, or involves mocking something I hold dear."
Gosh! This topic really lit me up!
Rifkin - The standard for determining intimidation would be the so-called "Reasonable Man" standard. I refer to it as the "Reasonable Person" standard, of course.
Would a reasonable person be intimidated by the sign holders I observed (who moved to more than 100 feet from the polling place when requested)?
Don't agree? Ask a judge. I'll check around, too.
BTW: One person was highly offended. She repeatedly told me that the sign holders had disturbed the peace and tranquility of her voting experience. She departed shrieking "Scum! You are scum!" at them repeatedly as she crossed the parking lot. Well! That was tranquil.
FRED: "Rifkin - The standard for determining intimidation would be the so-called "Reasonable Man" standard. ... Would a reasonable person be intimidated by the sign holders I observed (who moved to more than 100 feet from the polling place when requested)? Answer: No."
Since they moved to 100 feet or more from the polling place, they met the limits found constitutional in Burson v. Freeman.
FRED: "Don't agree? Ask a judge. I'll check around, too."
Again, the distance of 100 feet or more makes their actions permissible. That does not change the fact that the operative court decision in place in the United States does not allow people to intimidate voters, and that includes holding up political signs within 100 feet of the polling place.
Since you had them move back to 100 or more feet, you apparently agree with my read of Burson v. Freeman.
An interesting side note to Ms. Oakley: She famously changed her position 180 degrees on all-mail elections. I applaud her change. Her line of argument before the change was that such a polling system was "elitist" or some other similar term of "being bad for the commoner." She implied that an all-mail system would be good for wealthy voters, and as such it would harm lower-income people somehow.
I never really took Freddie's argument seriously. It was cockamamie logic. And in time she came to see the wisdom of mine and adopted my point of view.
Here is the funny twist: now right-wing Republicans are trying to oppose all-mail ballots, absentee voting when the voter has no physical reason to vote absentee, and early voting. Why? Because they realize this increases turnout, and that means more marginal voters, including the young and perhaps some more non-whites and more lower income voters, all groups which, when they vote, tend to not vote for Republicans.
When I read that I realized that was largely the same nonsense that Ms. Oakley gave me when she had opposed mail-in balloting. It's just that now the partisan results of the argument have switched and it is the Republicans who are acting the fool.
Because the demonstrators themselves said they were concerned about negative attacks on "spoiler candidates", it's clear they were promoting
3rd party candidates.
They moved peacefully 100' from the polling place. So, no problem!
We should be glad these 2 women have the courage of their convictions and were willing to spend their time encouraging others to think carefully about the 2-party system that is causing lots of problems and lack of compromise in Congress. Other countries do better with several factions in their legislations.
When is there a better time to demonstrate about the whole concept of voting than on election day? It's the equivalent of protesting income tax issues on April 15, when it's uppermost on people's minds. Thanks, Freddie, for dealing with these kinds of issues equitably, within the law and with wisdom.