Bill Text: CA AB2642 | 2023-2024 | Regular Session | Introduced

California Assembly Bill 2642

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Elections: intimidation.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Engrossed) 2024-05-29 - Referred to Coms. on E. & C.A. and JUD. [AB2642 Detail]

Download: California-2023-AB2642-Introduced.html

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 2642

Introduced by Assembly Members Berman and Gipson
(Coauthor: Assembly Member Weber)

February 14, 2024

An act to add Article 5 (commencing with Section 18580) to Chapter 6 of Division 18 of the Elections Code, relating to elections, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL'S DIGEST

AB 2642, as introduced, Berman. Elections: intimidation.

Existing law makes it a crime to intimidate a voter or to interfere with the conduct of an election, as specified. Existing law makes it a crime for a person in possession of a firearm or a uniformed peace officer, private guard, or security personnel to be stationed in the immediate vicinity of, or posted at, a polling place without written authorization of the appropriate elections official, except as specified. Existing law also makes it a crime to hire a person to conduct these prohibited acts.

This bill would prohibit a person from intimidating, threatening, or coercing, or attempting to intimidate, threaten, or coerce, any other person for engaging in specified election-related activities. The bill would authorize an aggrieved person, an officer holding an election or conducting a canvass, or the Attorney General to file a civil action to enforce this prohibition. The bill would create a presumption that a person who openly carries a firearm, imitation firearm, or toy gun while interacting with or observing the specified election-related activities would be presumed to have engaged in prohibited intimidation, in the absence of an affirmative showing to the contrary by a preponderance of the evidence. The bill would entitle an aggrieved person who prevails in such an action to recover reasonable attorney’s fees, reasonable expert fees, and reasonable litigation expenses, as specified.

This bill would declare that it is to take effect immediately as an urgency statute.

Vote: 2/3 Appropriation: NO Fiscal Committee: NO Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

The Legislature finds and declares as follows:

(a) The Legislature has compelling interests in protecting both public safety and individual rights, including the fundamental right to vote. It is the Legislature’s intent and purpose in enacting this act to help preserve the right to vote by securing the safety and freedom of our elections and allowing voters, election workers, and other officials who conduct our elections to play their roles free from intimidation and the threat of gun violence.

(b) The United States, including California, has a history of discrimination and intimidation in elections. African American voters in California first began petitioning for the right to vote in 1865, two years after the Emancipation Proclamation was issued and the same year that slavery was completely abolished with the ratification of the 13th Amendment. California’s refusal to ratify or enforce the 14th and 15th Amendments eventually prompted the federal government to pass the Enforcement Act of 1870, only after which African American men were allowed to register. Minority voters continued to suffer harassment, physical violence, and obstructionist tactics in the following decades, which included a California poll tax active from 1879 until 1914 and a literacy test active from 1894 until 1970. Passage of Section 11(b) of the federal Voting Rights Act of 1965 offered important protections against voter intimidation and, today, California has enacted several critical voter protection laws.

(c) In recent years, there has been an increase in the number of people carrying firearms in public, a development that has coincided with the deregulation of gun laws in a majority of states. Guns have been used where people are voting and tabulating ballots to intimidate and harass them.

(d) Over the past decade, gun violence has remained a very serious public health problem. According to the Centers for Disease Control and Prevention, between 2019 and 2021, national firearm-related homicide rates increased by 35 percent, and 2021 was the worst year on record for firearm deaths, with a dismaying 48,830 lives lost. Relative to historical averages, the period between March 1, 2020, and February 28, 2021, saw a 15 percent increase in firearm-related incidents, a 34 percent increase in nonfatal gun injuries, and a 28 percent increase in gun deaths.

(e) Mass shootings have also become more common. The number of annual mass shootings in the United States more than doubled in the last decade. In 2015, California experienced a mass shooting every thirteen days—in 2023 that number had changed to every six days.

(f) It is indisputable that division in American politics has reached a fever pitch. At the same time, an increasing share of the American electorate is willing to use violence to advance their political objectives. The Violence Policy Research Center at the University of California, Davis, found that 12.4 million Americans would be somewhat, very, or completely willing to kill a person in a situation in which they believe force or violence is justified to advance an important political objective. More than 47.7 million Americans, including those who do not own guns, think it is somewhat, very, or extremely likely that they will be armed with a gun in the next few years in a situation in which they think force or violence is justified to advance an important political objective.

(g) In 2022, the Global Project Against Hate and Extremism conducted a poll on the effects of extremist political rhetoric and activities and the proliferation of guns in public spaces. It found that just 41 percent of all respondents feel safe at their polling places and that 32 percent were specifically worried about people carrying weapons at their polling place. That number was even lower for Hispanic respondents (37 percent), Black respondents (28 percent), and those aged 18–25 (26 percent). Voter intimidation, suppression, and harassment were also listed as a “grave concern” for 27 percent of those polled, with higher numbers for groups that have historically experienced harassment and disenfranchisement.

(h) The increases in voting by mail and other changes to voting instigated by the global COVID-19 pandemic provided fodder for President Trump and others to promote disinformation and conspiracy theories about U.S. elections based on claims of voter fraud and election interference. In the years since, this fraudulent claim has served to radicalize an increasing number of armed extremists and far-right supporters who use the election denial movement as an excuse to openly harass, threaten, and intimidate election workers and voters.

(i) California voters and election workers are amongst those at serious risk of experiencing this type of intimidation and harassment. In Shasta County, elections officials have encountered open hostility and threats from a small but vocal group of far-right activists who claim concern about voter fraud. These activists have physically crowded election workers performing their official duties, inundated elections offices with public records requests, and even visited voter homes while claiming to be part of an “official taskforce.” Similarly, in Nevada County, the registrar-elect had to take out a restraining order against residents who harassed her, pushed their way into her office, and assaulted a staffer.

(j) The result of this unprecedented level of harassment has been a mass exodus of elections workers across the country. According to a nationwide poll of election workers conducted by the Brennan Center for Justice, 11 percent of current officials say they are very or somewhat likely to leave their positions before November 2024. Over half say they are concerned that threats, harassment, and intimidation will harm retention and recruitment and 30 percent admitted to having personally been abused, harassed, or threatened because of their job as a local elections official. In California alone, 41 percent of the state’s counties now have a new chief local elections official, and 44 percent of Californians will see the 2024 election administered by someone different than the official who administered the 2020 election.

(k) The United States Supreme Court has made clear that the Second Amendment to the United States Constitution is not a “regulatory straightjacket.” N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) 597 U.S. 1, 30. The Second Amendment allows for a “‘variety’ of gun regulations.” Bruen, 597 U.S., at p. 80 (Kavanaugh, J., concurring). And the Supreme Court has repeatedly recognized that states may restrict the carrying of firearms in “sensitive places,” specifically including schools, government buildings, legislative assemblies, polling places, and courthouses. Bruen, 597 U.S., at p. 30; see also McDonald v. City of Chicago (2010) 561 U.S. 742, 786 (Alito, J., plurality op.); District of Columbia v. Heller (2008) 554 U.S. 570, 626. To date, no court has invalidated a prohibition on gun carrying in these sensitive locations specifically enumerated by the Court.

(l) The PEACE Act is intended to supplement existing anti-intimidation law under Section 11(b) of the Voting Rights Act of 1965, by, among other things, providing specific, explicit protections for election workers and acknowledging that in this era of increased gun violence and election denialism, the presence of guns in proximity to elections is presumptively intimidating. This act should not be construed, however, to suggest that other anti-intimidation laws do not protect election workers or protect against the use of firearms to intimidate.

(m) California law already prohibits the intimidation of voters and others in the election process and the carrying of firearms where votes are cast and counted. The PEACE Act is not intended to, and should not be construed to, limit or replace those prohibitions. It is instead a supplement to those protections.

(n) Because election administration and voting take place in a number of locations—including, but not limited to, polling places, elections and other government offices, ballot drop boxes, and people’s homes—the term “voting” as defined by this Act is intended to be read expansively to include all forms and methods of voting permitted under federal and state law.

SEC. 2.

Article 5 (commencing with Section 18580) is added to Chapter 6 of Division 18 of the Elections Code, to read:

Article 5. PEACE Act

18580.

For the purposes of this article, the following definitions apply:

(a) “Firearm” means a device designed to be used as a weapon, from which a projectile is expelled through a barrel by the force of an explosion or other form of combustion. It includes any firearm that is in the nature of an air gun, spring gun or pistol, or other weapon in which the propelling force is a spring, an elastic band, carbon dioxide, compressed or other gas or vapor, or air or compressed air, or is ignited by compressed air, and that ejects a bullet or missile smaller than three-eighths of an inch in diameter with sufficient force to injure a person.

(b) “Imitation firearm” means an object or device reasonably capable of being mistaken for a firearm.

(d) “Open carry” has the same meaning as in Section 26350 of the Penal Code.

(e) “Toy gun” means a facsimile or reproduction of a firearm that is marketed as a product intended for children or is substantially similar in appearance, size, and shape to a genuine firearm.

(f) “Voting” includes any action necessary to make a vote effective in a primary, special, or general election, including registration or other action required by law as a prerequisite to voting, casting a ballot by any method permitted by law, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to a candidate or measure for which votes are received in an election.

18581.

(a) A person, while acting under color of law or otherwise, shall not intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce, any other person for any of the following:

(1) Voting or attempting to vote.

(2) Urging or aiding any person to vote or attempt to vote, whether as part of official election administration activity or otherwise.

(3) Exercising any powers or duties to administer elections, including counting votes, canvassing, and certifying an election in accordance with Division 15.

(4) That other person’s status as a past or present participant in the administration of elections.

(b) In any suit to enforce this section, a person who openly carries a firearm, imitation firearm, or toy gun while interacting with or observing any of the activities described in paragraphs (1) to (3), inclusive, of subdivision (a) shall be presumed to have engaged in intimidation prohibited by this section in the absence of an affirmative showing to the contrary by a preponderance of the evidence. Law enforcement officers acting within the scope of their official duties are not subject to this presumption, but a court may nonetheless consider a law enforcement officer’s possession of a firearm in determining whether the officer violated subdivision (a).

18582.

(a) A person aggrieved by a violation of Section 18581 may enforce the provisions of this article in a suit at law or in equity, or both. A prevailing plaintiff in such an action may recover reasonable attorney’s fees, reasonable expert fees, reasonable litigation expenses, and all such fees as are appropriate as part of the costs to be determined by a court of competent jurisdiction.

(b) An officer holding an election or conducting a canvass may enforce the provisions of this act and may institute an action for equitable relief on behalf of an aggrieved person who is in the officer’s jurisdiction or is eligible to vote in the officer’s jurisdiction.

(c) The Attorney General may enforce the provisions of this act and may institute for the state, or in the name of the state, an action for equitable relief, including an application for a temporary or permanent injunction, restraining order, or other order.

(d) A suit brought by an officer holding an election or conducting a canvass or the Attorney General under this section does not preclude a contemporaneous private suit by an aggrieved person to enforce the provisions of this article.

(e) In a suit to enforce the provisions of this article, a court may grant relief enjoining the use or carrying of firearms by a defendant beyond the areas defined in Article 3. This subdivision does not limit the court’s authority to grant any other just and equitable relief.

(f) In order to prevail in a suit to enforce the provisions of this article, a plaintiff need not prove that a defendant intended to intimidate, threaten, or coerce any person, except in order to prove an attempt to intimidate, threaten, or coerce. A court may nonetheless consider evidence of intent in determining the appropriate relief.

SEC. 3.

This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to deter intimidation, harassment, and violence at the polls in the upcoming November 5, 2024 general election, it is necessary that this act take effect immediately.