Language in election security bill prompts GOP concerns

Could California’s new Office of Elections Cybersecurity give powerful Democrats a weapon to police the campaign speech of Republican candidates?

This was the claim from some GOP lawmakers when Democrats made a late addition to what had been a bipartisan bill. AB 3075, which creates the office within the California Secretary of State’s office, spent months moving quickly through the legislative process with Republican support.

As the bill was moving through the state Senate in July, Democrats added language allowing the Secretary of State to assess “false or misleading information regarding the electoral process” and then take steps to “mitigate” the information and “educate voters.”

According to Democrats, this was to allow elections officials to take actions on the fly to inform voters of deliberate attempts to mislead them about when, where and how to vote.

Some supporters of the bill pointed to messages that have appeared on social media forums, such as a now-famous altered image from 2016 appearing to show the actor Aziz Ansari holding a poster telling Hillary Clinton supporters to “vote by text.”

Republicans argued the new language is so vague and overly broad it could be used against candidates engaging in regular political speech. This disagreement spilled out in an August Assembly floor debate between the bill’s author and its main Republican opponent.

“Specific to the Senate amendments, we should not give the Secretary of State the power to decide subjectively what is false or misleading information about an election,” said Assemblyman Matthew Harper, R-Huntington Beach. “Indeed, if this was about making sure to avoid situations in which someone was giving wrong information about when to vote, how to vote et cetera, then it should have been specifically and narrowly tailored.”

“It is very narrowly tailored to only deal with the electoral process,” shot back Assemblyman Marc Berman, D-Menlo Park.

AB 3075 passed, but it did so without most of the Republican support it received prior to the amendments.

Some political attorneys asked about AB 3075 said it wasn’t among the major bills they had been watching. In the wake of the contentious 2016 elections, state lawmakers have pushed dozens of measures to improve the integrity of elections. The concern over biased application of the law also did not show up in committee analyses of the bill.

But AB 3075 has caught the attention of some attorneys who advise corporate clients.

“I can see what they were trying to accomplish, but the language is I think dangerously broad,” said Keith P. Bishop, a partner in the corporate and securities group at Allen Matkins Leck Gamble Mallory & Natsis in Irvine. “When you see legislation that apparently allows for monitoring of speech, that’s a concern.”

Bishop, who led the California Department of Corporations for a time during the 1990s, said part of his practice involves spotting overly-vague regulations that could cause trouble for clients. He laid out a scenario in which a candidate makes a statement that could be interpreted in some way as discouraging people from voting or questioning the integrity of an election.

The bill grew out of an informational hearing on election cybersecurity held in March. According to sources speaking on background, there was a concern about making the amendment language so specific that someone would be able to mislead voters without breaking the law.

In other Legislative news, on Friday Gov. Jerry Brown signed a package of 29 bills relating to wildfires, including placing new rules on insurers. The highlight of the package is SB 901, a bill which appropriates $200 million for fire suppression.

A provision that would have changed the state’s inverse condemnation rule was not included in the final version of SB 901. This rule makes utilities liable for fires started by their power lines even if they were not negligent.