Poniktera v. Seiler

February 5 and June 3, 2008. Poniktera is a registered voter in San Diego County and, during the 2008 elections, acted as a poll watcher to gather information about the governmental conduct of elections. As part of her efforts, she used photography at polling places.

B. The Challenged Governmental Conduct

The Photography Policy

Poniktera’s attorney of record, Mr. Karan, attended a poll worker training session held prior to the 2008 elections and obtained a copy of the elections manual provided to poll workers to assist them in completing their election day assignments (Manual). Mr. Karan objected to one of the sections of the Manual relating to photography at the polling place and expressed those concerns to Registrar. The Manual stated; “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.”

Mr. Floyd, a senior deputy with the San Diego County Counsel’s Office who advises Registrar on legal matters and helps resolve issues with members of the public on election days, communicated with Karan (by both telephone and e-mail) prior to the 2008 elections concerning this policy. Floyd explained Registrar included that statement in the Manual because Registrar wished to ensure that both voters and poll workers have a positive experience on election day, and various constitutional and statutory provisions (including the provision of Elec. Code,^[1] § 18541 that prohibits the taking of photographs of voters within 100 feet of a polling place with the intent to intimidate) were designed to ensure voters would feel secure in the secrecy of their ballots and be free from overt or tacit intimidation. Floyd explained the “intent to intimidate” element could place volunteer poll workers in the untenable position of having to perform complex constitutional analyses or of trying to discern a photographer’s intent (while also trying to protect the secrecy and integrity of the vote and keeping the polls running securely and efficiently), and the statement in the Manual was not intended to preclude photography that did not interfere with poll workers or voters. Floyd gave his cellular telephone number to Karan and told him that, if he was attempting to take pictures as he described and a poll worker took exception, Karan could call Floyd directly and Floyd would speak with the poll worker to ensure Karan could take pictures without disrupting the election process or violating restrictions found in the Elections Code. Floyd offered to meet with Karan at the first polling place Karan intended to observe so that a protocol

for these telephone calls could be established or, alternatively, Floyd offered to call ahead and prepare the poll workers so they would know Karan was going to take pictures and the circumstances under which photography would be allowed.

Poniktera alleged poll watchers are threatened with arrest for violating Registrar’s written policy against using cameras and for trespassing at polling places. However, Poniktera did not aver she had been threatened with arrest, or even that she was denied the use of her camera.^[2] Instead, the evidentiary basis for this claim is apparently based on Karan’s experiences during the February 2008 election. Poniktera claimed Karan was threatened with arrest because he violated the written policy banning the use of cameras. However, Registrar’s evidence was that on the morning of the February 2008 election, Karan called Floyd and complained that a precinct inspector was not allowing him to take photographs in the polling place and that the police had been called. Floyd immediately went to the polling place and found Karan talking on his cellular telephone on one part of the driveway in front of the residence while two police officers were standing on another part of the driveway and the poll workers were at their stations assisting voters. Floyd spoke with Karan and the officers, and then with the precinct inspector (Ms. Ritter), and learned Karan had attempted to debate his constitutional rights with Ritter (rather than calling Floyd to resolve any impasse), which was disrupting voters trying to enter to vote while Karan was lecturing Ritter on the law. Floyd told the poll workers and the officers that Mr. Karan would be allowed to photograph the documents he requested as long as it did not interfere with the voters. Thereafter, during a lull in the voting, Karan took pictures of the ballot box and log. Floyd again offered to meet Karan at any poll and/or call the poll workers to let them know he would be allowed to take photographs as he had at this precinct, but Karan declined the offer and left the polling place. No one threatened to arrest Karan, who obtained the pictures he sought.

Later that day, Karan visited a second polling station. He claimed that when he attempted to document the closing of the polling place, police were called and claimed he was trespassing, and that he avoided arrest by leaving the premises. However, Registrar’s evidence showed Karan spent the afternoon and evening hours at this second polling station and, during his time there, interfered with the poll workers’ ability to carry out their tasks by talking loudly on his cellular telephone, by questioning the workers while

they were trying to carry out their duties, by sitting at a table reserved for provisional voters, and by standing inches away from poll workers while they were performing their duties. The poll workers called police because Karan was disrupting their efforts to finish their work prior to the 9:30 p.m. deadline. Police arrived and escorted Karan outside the polling station where they waited with him until the poll workers had finished closing the station. Karan then caravanned behind the poll workers when they went to the ballot dropoff location to deliver their materials.

The Ballot Security and Accounting Policies

Poniktera also challenged Registrar’s policies and procedures for protecting the integrity of the ballot count. Poniktera submitted declarations stating some of the ballot boxes were delivered to Registrar’s central counting facility without seals or identifying markings, submitted photographs of the allegedly mismarked boxes, and claimed Registrar refused to investigate. Poniktera also alleged Registrar’s written policies relieved poll workers of the obligation to account for all of the ballots delivered to the polling station.

Registrar’s evidence explained the steps taken during the 2008 election to ensure the accuracy of the balloting process. As a result of restrictions imposed on electronic voting devices by California’s Secretary of State, Registrar implemented a new paper-based ballot system first used in the February 2008 election and employed again in the June 2008 election. Under that system, paper ballots were distributed to more than 1,650 precincts to be used and then returned to the Registrar’s office on election night for scanning at a central location. The quantity and sequence numbers of the ballots were listed on a chain of custody document and precinct inspectors were instructed to count all ballots they received and verify the quantity and sequence numbers in advance of election day. They were also instructed to contact the Registrar’s office to confirm the information and advise staff if there were any discrepancies. After the polls closed, precinct inspectors were instructed to record the number of ballots issued on the ballot statement portion of the roster of voters, and to record the number of unused ballots, voted ballots, voted provisional ballots, and spoiled ballots (if any) on the roster of voters. The number of unused, voted (including provisionals), and spoiled ballots should equal the number of ballots issued. However, because this reconciliation is performed at the end of an extremely long day, it is not uncommon for the numbers to vary slightly.^[3]

number of cartons returned without seals dropped dramatically although some workers used a white “standard” seal rather than the blue seal designated for that purpose.^[4]

STANDARD OF REVIEW

Poniktera asserts our standard of review is de novo. We disagree with Poniktera’s apparent belief that a de novo standard of review applies to all issues in this case.

Our review of questions of law is de novo. (County of Yolo v. Los Rios Community College Dist. (1992) 5 Cal.App.4th 1242 , 1248 [ 7 Cal.Rptr.2d 647 ].) However, to the extent Poniktera’s appeal implicitly challenges any factual findings of the trial court, we do not disturb the trial court’s findings if substantial evidence supports the judgment. Instead, we resolve all conflicts in favor of the judgment, even when (as here) the trial court’s decision is based on evidence received by declaration rather than by oral testimony. (Shamblin v. Brattain (1988) 44 Cal.3d 474 , 479 [ 243 Cal.Rptr. 902 , 749 P.2d 339 ].)

Poniktera, asserting that all of the relevant claims are subject to de novo review, relies on Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075 [ 47 Cal.Rptr.2d 661 ] for the proposition that a court independently reviews the record in matters involving First Amendment claims. However, Berry involved a demunrer to a claim that an ordinance violated First Amendment protections, and the Berry court observed, in that context, the court is required to assume the truth of all material facts, and then apply de novo review to whether the ordinance violated First Amendment protections. (Berry, at p. 1082.) Here, however, there are historical facts in dispute, and we believe the court’s discussion in Ghirardo v. Antonioli (1994) 8 Cal.4th 791 [ 35 Cal.Rptr.2d 418 , 883 P.2d 960 ] of the standard of review in a civil case involving constitutional claims is more apt. In Ghirardo, the issue was whether a transaction violated the constitutional prohibition against usury. The Supreme Court said the “trial court’s determination of the historical basis of the transactions—in common parlance, what happened—raises a question of fact” (id. at p. 801), but “[o]nce the historical facts of the transaction are

determined, the question of whether that type of transaction is subject to the usury proscription is a question of law” (id. at p. 800).

Ill

THE PHOTOGRAPHY POLICY

Poniktera challenges Registrar’s policy, contained in the Manual given by Registrar to poll workers, which stated “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.”^[5] Poniktera asserts this policy restricts her First Amendment rights and is therefore invalid unless it satisfies strict scrutiny under Burson v. Freeman (1992) 504 U.S. 191 [ 119 L.Ed.2d 5 , 112 S.Ct. 1846 ] (plur. opn. of Blackmun, J.) (Burson). Poniktera argues the policy does not survive strict scrutiny because the policy is not narrowly tailored to serve a significant government interest.

A. Analytic Framework: The Standard of Scrutiny

When a governmental policy limits activity ostensibly protected under the First Amendment,^[6] the courts have developed a forum-based analysis to

at all in the past decade—placed any property in this category.” (Clark, supra, 4 Cal.4th at p. 483, fn. omitted.) For this second category of fora, a “content-based regulation of speech ... is [also] subject to strict scrutiny: ‘Regulation of such property is subject to the same limitations as that governing a traditional public forum.’ [Citation.]” (Id. at p. 483.)

The residual category of public property encompasses “ ‘all remaining public property’ [quoting International Soc. for Krishna Consciousness, Inc. v. Lee, supra, 505 U.S. at pp. 678-679], a category usually referred to as the ‘nonpublic forum.’ ” (Clark, supra, 4 Cal.4th at p. 483, fn. omitted.) Clark explained that regulations limiting expressive activity in nonpublic fora^[7] need “ ‘survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view.’ ” (Clark, supra, 4 Cal.4th at p. 483.)

B. Application

A Polling Station Is a Nonpublic Forum

We conclude the confines of the polling station, the only area to which the challenged policy can and does apply, is a nonpublic forum.

Although there is no controlling California authority, numerous federal courts have concluded (albeit in different contexts) that the premises of a polling place constitute a nonpublic forum. In Marlin v. District of Columbia Bd. of Elections and Ethics (D.C. Cir. 2001) 236 F.3d 716 , for example, the court evaluated the constitutionality of a prohibition on campaign stickers in polling places and found, at the outset, that a polling place is a nonpublic forum. The court reasoned that “[t]he forum here, the interior of a polling place, is neither a traditional public forum nor a government-designated one. It is not available for general public discourse of any sort. The only expressive activity involved is each voter’s communication of his own elective choice and this has long been carried out privately—by secret ballot in a restricted space.” (Id. at p. 719.) Having concluded the interior of the polling station was a nonpublic forum, the court declined to apply strict

may limit access to the ‘area around the voter’ but whether the State may limit speech in the area around the polling place.” (Id. at p. 220, fn. 4.)

Our reading of Bur son convinces us to join in the conclusions reached by several federal courts that the area within the polling station is a nonpublic forum. The legislative scheme in this state demonstrates that polling stations have not been opened for public discourse, but are instead subject to regulations that restrict the station to the purposes of balloting. For example, “[o]n!y voters engaged in receiving, preparing, or depositing their ballots . . . may be permitted to be within the voting booth area before the closing of the polls” (§ 14221), only one person may occupy a voting booth at a time, and voters may not remain in a voting booth for longer than is necessary to mark the ballot (§§ 14224, 14281). Furthermore, “[o]nly members of the precinct board . . . shall be permitted, during the hours within which voting is in progress, to sit at the desk or table used by the precinct board.” (§ 14223, subd. (a).) Additional conduct by voters inside the polling station is regulated: no one may interfere or attempt to interfere with the secrecy of voting (§ 18564, subd. (b)); voters may not place any mark upon a ballot that would make the ballot identifiable (§ 14287); and voters may not show their ballot to any person in such a way as to reveal its contents. (§§ 14275, 14291.) In short, polling places have not been opened for public discourse, and indeed are subject to significant restraints on expressive conduct within the polling station, and we therefore conclude polling stations must be deemed “nonpublic forums.”

The Photography Policy Is Reasonable

Because the photography policy applies to limit conduct in a nonpublic forum, the policy must be upheld if it is reasonable and is not an effort to suppress activity because of disagreement with the speaker’s view.^[8] (Clark, supra, 4 Cal.4th at p. 483.) Restrictions designed to “ ‘reserve the forum for its intended purposes,’ ” and that limit the public to “ ‘activities compatible with the intended purpose of the property’ ” will be upheld when the restrictions are “ ‘reasonable in light of the purpose which the forum at issue serves.’ ” (Id. at p. 491.)

The parties agree that the intended purpose of the polling station is to conduct balloting, and Poniktera does not dispute that a ban on conduct interfering with the ability of voters to cast their secret ballots or disrupting the balloting process would be a reasonable and valid regulation under Clark. However, Poniktera contends photography at polling stations does not in fact either intimidate voters or disrupt the balloting process, and therefore the ban is an unnecessary and unreasonable restriction on a poll watcher’s ability to document the events he or she is statutorily entitled to observe.^[9] However, the Burson court, rejecting an analogous claim that the 100-foot perimeter was invalid because it was an unnecessarily overbroad restriction, explained: “[B]ecause a government has such a compelling interest in securing the right to vote freely and effectively, this Court never has held a State ‘to the burden of demonstrating empirically the objective effects on political stability that [are] produced’ by the voting regulation in question. [Citation.] Elections vary from year to year, and place to place. It is therefore difficult to make specific findings about the effects of a voting regulation. Moreover, the remedy for a tainted election is an imperfect one. Rerunning an election would have a negative impact on voter turnout. Thus, requiring proof that a 100-foot boundary is perfectly tailored to deal with voter intimidation and election fraud ‘would necessitate that a State’s political system sustain some level of damage before the legislature could take corrective action. Legislatures, we think, should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights.’ [Quoting Munro v. Socialist Workers Party (1986) 479 U.S. 189 , 195-196 [ 93 L.Ed.2d 499 , 107 S.Ct. 533 ] (italics added by Burson)T (Burson, supra, 504 U.S. at pp. 208-209 (plur. opn. of Blackmun, L), fns. omitted.)

The same rationale applies with even greater force to restrictions not subject to strict scrutiny. The state could reasonably conclude voters may be deterred from voting if they know (either in advance or upon arriving at the polling station) their presence will be photographically recorded, even by photographers claiming to have the most benign of intents, because the voter cannot be expected to read the mind of the photographer and the voter is not required to accept at face value the photographer’s protestations of benevolence. Additionally, to the extent a voter objects (whether reasonably or unreasonably) to having his or her picture taken, the state could rationally

conclude the smooth operation of a polling station would be disrupted were poll workers required to referee disputes between poll watchers and voters. Although we agree with Poniktera that poll watchers have the right to observe the conduct of elections, the regulation in question represents a reasonable accommodation of the interest of voters to cast a secret ballot (as well as to a right of privacy) without significantly impinging on any constitutionally protected rights of the poll watchers.^[10]

Poniktera also asserted below, and argues on appeal, that she was entitled to declaratory relief that Registrar may not restrict the right of poll watchers to observe the conduct of elections by threatening to arrest a poll watcher for trespass merely because the poll watcher is present at a poll. However, there was no evidence suggesting Registrar had a policy of threatening to arrest poll watchers merely for being present at polling stations. Moreover, the evidence would permit the conclusion that neither Poniktera nor anyone else was threatened with liability for trespass based merely on the poll watcher’s presence at a polling station. Although Karan averred that police threatened to arrest him at two polling stations during the February 5 election,*^[11] Registrar’s evidence showed (1) police were called to the two polling stations at which Karan was present because he was disrupting the process of balloting and of closing the polling station, and (2) Karan was not threatened with arrest for merely being present at those polling stations. Registrar’s evidence, which the trial court was entitled to credit, supports the conclusion there was not an actual and present controversy over whether police may arrest a person who is merely present at a polling place as a poll watcher, which supports the trial court’s ruling denying Poniktera’s requested declaratory relief. (Cf. In re Claudia E. (2008) 163 Cal.App.4th 627 , 638 [ 77 Cal.Rptr.3d 722 ] [declaratory relief requires a real dispute between parties and is unavailable where it would amount to an advisory opinion on a particular or hypothetical state of facts].)

THE BALLOT SECURITY AND ACCOUNTING CLAIM

Poniktera’s complaint sought declaratory relief that Registrar had the obligation under sections 15201 and 15202 to seal the containers used to transport the ballots and to deliver the sealed container to the designated central counting place.^[12] Poniktera also sought declaratory relief that Registrar had the obligation under sections 14107 and 14405, subdivision (a), to ensure that poll workers, after closing the polls, account for all the ballots received, issued, and spoiled, and Registrar’s contrary policy (which allegedly relieved poll workers of that duty) was unlawful. The trial court declined to issue the requested relief, and Poniktera argues this was an abuse of discretion.

A. Standard of Review

A trial court’s decision to grant or deny declaratory relief is reviewable for abuse of discretion. (Filarsky v. Superior Court (2002) 28 Cal.4th 419 , 433 [ 121 Cal.Rptr.2d 844 , 49 P.3d 194 ].) Courts have considerable discretion to deny declaratory relief when resolution of the controversy “would have little practical effect in terms of altering parties’ behavior.” (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634 , 648 [ 88 Cal.Rptr.3d 859 , 200 P.3d 295 ].)

B. The Ballot Sealing Claim

Poniktera asserts the trial court erred by denying declaratory relief because there is a dispute over whether sections 15201 and 15202 impose on Registrar the “responsibility] for ensuring ballot security or investigating evidence of tampering.” Those sections provide that, after the polls close, the “precinct board” at each polling location must “[s]eal the container used to transport voted ballots” (§ 15201, subd. (a)(1)), and that at least two members

of the precinct board must “deliver the ballots, in a sealed container” to the central counting place or the designated receiving station (§ 15202). The trial court declined to issue the requested relief because it concluded there was nothing for the court to declare regarding the parties’ rights or obligations that was not set out in the Election Code statutes.

Poniktera does not assert Registrar has any direct obligations under sections 15201 or 15202. Instead, Poniktera asserts those statutes require that when Registrar chooses to seal ballot boxes using adhesive seals, Registrar must (1) provide adhesive seals that are “tamper evident,. . . difficult to reproduce, and . . . controlled,” and (2) ensure poll workers place the seals on the boxes in a location on the box that precludes the box from being opened without detection. Even assuming those statutes impose a ministerial duty on the mechanics of sealing ballot boxes, there was substantial evidence from which the trial court could conclude Registrar does provide adhesive seals that are tamper evident, difficult to reproduce, and controlled, and that Registrar does provide training to poll workers describing the type of seal and manner of affixing those seals on boxes that (if followed) would preclude the box from being opened without detection.^[13] Accordingly, the trial court acted within its discretion to deny declaratory relief because the requested declaration “would have little practical effect in terms of altering parties’ behavior.” (Meyer v. Sprint Spectrum L.P., supra, 45 Cal.4th at p. 648.)

C. The Ballot Accounting Claim

Poniktera also sought declaratory relief that Registrar had the obligation to ensure poll workers account for all the ballots but Registrar relieved poll workers of that duty and the policy was unlawful.

Section 14405 provides the members of the precinct board “shall account for the ballots delivered to them by returning a sufficient number of unused ballots to make up, when added to the number of official ballots cast and the number of spoiled and canceled ballots returned, the number of ballots given to them,” and “shall complete the roster as required in Section 14107.” The roster required by section 14107 includes a statement certifying that “the total number of official ballots received, voted, rejected, spoiled and

canceled, found in the ballot container and the number accounted for is as indicated on the ballot statement.”

Registrar’s policy meets the requirements imposed by law. There was substantial evidence supporting the conclusion that Registrar instructed precinct inspectors that they were required to record the number of ballots issued to the precinct on the ballot statement portion of the roster of voters. They were also instructed to record the number of unused ballots, voted ballots, voted provisional ballots, and spoiled ballots (if any) on the ballot statement, and the number of unused ballots, voted ballots (including provisionals) and spoiled ballots should equal the number of ballots issued to the precinct. Poniktera did not contend below that these instructions, standing alone and when complied with, did not satisfy the obligations imposed on Registrar by sections 14405 and 14107.

Instead, Poniktera asserted below that at least 17 precincts had signed ballot statements and the poll workers had not been able to reconcile the number of ballots issued by elections officials with the number of ballots issued, spoiled and returned.^[14] However, Registrar’s evidence explained that poll workers were required to conduct the accounting but, because the calculation is performed at the end of an extremely long day, as a practical matter it is not uncommon for the numbers to vary slightly. Accordingly, for those precincts unable to obtain an exact match, the ballot statement required the poll workers to so indicate and to provide their explanation on the ballot statement for the discrepancy. Thereafter, as part of the official canvass, Registrar conducts an independent review of the ballot statements to reconcile the ballot statements with the actual ballot count. This subsequent reconciliation by Registrar showed that, of the 17 precincts identified by Poniktera as filing ballot statements showing an inability to account for all of the ballots, 16 of those precincts did in fact balance.

We are convinced Registrar’s policies do require poll workers to (1) conduct an accounting to the best of their ability, (2) file the roster required by section 14107, and (3) certify on that roster the total number of official ballots