SOME OF CALIFORNIA’S MOST POPULOUS COUNTIES are issuing guidelines restricting the press from documenting Election Day proceedings at polling places in ways that appear to violate state statutes and the First Amendment.
A coalition of media outlets, led by CalMatters, and a First Amendment advocacy group sent a letter to Kern County raising these concerns. The coalition has identified other counties with similar prohibitions.
These restrictions potentially stem from recent notices and poll worker training standards from the California secretary of state, which sets policy on election rules. In the guidelines, electioneering — or efforts to persuade voters to vote a certain way — is prohibited. The guidelines prohibit photographing or recording voters who are entering, inside or exiting a polling place without their permission.
But as long as outlets do not try to influence voters, these restrictions go beyond what state law limits and possibly run afoul of constitutional protections of a free press, said Ginny LaRoe, the advocacy director at the First Amendment Coalition, which is part of the group raising alarm.
Dedee Verdin, a spokesperson for the secretary of state’s office, wrote in an email to CalMatters on Sunday night that she was seeking clarity from the office’s experts and would respond when she learns more.
On Oct. 27 the Kern County election office issued media guidelines that prohibited media personnel from filming from within 100 feet of poll sites and ballot drop boxes.
Those prohibitions prompted the first of two letters from media organizations and the press rights group to the county registrar.
Around that time, the First Amendment Coalition began looking into secretary of state materials that counties may be relying on as a potential source of the restrictions, including the anti-electioneering regulations. Research by the First Amendment Coalition identified at least nine other counties besides Kern, including large ones such as Alameda, Los Angeles and Santa Clara, that reiterate the secretary of state’s guidelines in their own rules.
LaRoe said that it’s the responsibility of counties to ensure that the restrictions they’re implementing are consistent with state law and constitutional protections.
Fears of a chilling effect
Angélica Salceda, an attorney for American Civil Liberties Union Northern California, said she worries that the restrictions would also have a chilling effect on bystanders who may be discouraged from recording federal immigration activity that may occur near polling stations. The ACLU of Northern California is not part of the media coalition.
“We don’t want someone who might be reporting potentially unlawful federal law enforcement activity near a polling location to be told that they’re violating the law simply because of where they’re standing,” said Salceda.
“Getting that clarifying guidance from county registrars, before those restrictions are misapplied, is very important.”
Barring media from capturing voters entering vote centers conflicts with a long U.S. history of reporters gathering footage outside polling stations. News organizations have previously captured long lines, voters explaining why they are casting their ballots, and politicians showing up at polls to vote.
Just as “local and state officials are hard at work ensuring a free and fair vote,” journalists have their own vital role to play as watchdogs, said LaRoe of the First Amendment Coalition. “We worry that these state and local restrictions on news gathering, including photography, will impede the kind of news coverage on public accountability that serves our community.”
In the first letter to Kern County officials, CalMatters and others argued that the rules were unnecessarily restrictive and “come at an unprecedented time when the federal government is alleging election fraud and Governor (Gavin) Newsom is sending election attorneys to monitor federal poll watchers.”
“We worry that these state and local restrictions on news gathering, including photography, will impede the kind of news coverage on public accountability that serves our community.”
Ginny LaRoe, First Amendment Coalition
After the media groups sent the letter, Kern County issued an updated guideline on Oct. 30, clarifying that outlets cannot film voters dropping off ballots if the voter “feels intimidated by being filmed.” But there is no statute that requires journalists to stop filming ballot drop-offs because a voter reports feeling intimidated, the media groups said in their second letter to county election officials.
The updated guidelines also require the media to conduct “all interviews” at least 25 feet from the entrance of a polling site, citing a state statute. But that specific statute only relates to exit polling interviews, and does not require that every journalistic interview, such as ones discussing wait times or voting procedures, be conducted at least 25 feet, media groups’ second letter said.
With Election Day on Tuesday, LaRoe said the media coalition is not seeking to infringe on the privacy of voters.
“But the act of going out in public and the administration of our election by public officials is inherently public,” she said. “And that’s where we have a concern with these policies, no matter how well-intended.”
The coalition of media outlets and associations is made up of CalMatters, Central Valley Journalism Collaborative, First Amendment Coalition, Kern Sol News, KGET/Telemundo, KVPR/Valley Public Radio, National Press Photographers Association, SJV Water, and the Society of Professional Journalists Central California.
This story originally appeared in CalMatters.