By Daniel P. Tokaji
There’s been a flurry of concern over voter intimidation over the several days, and with good reason. Donald Trump’s repeated and totally unsubstantiated claims that the election will be rigged could prompt some supporters to take matters into their own hands. There are, however, both federal and state laws protecting voters from intimidation. This post includes a summary of some of the swing states’ statutes and decisions governing activities around polling places.
There’s been a flurry of concern over voter intimidation over the several days, and with good reason. The Democratic Party brought suit in key states to try to stop allegedly intimidating tactics by the Trump campaign and its allies. Although a federal district judge in Ohio issued a temporary restraining order, a conservative panel of the Sixth Circuit quickly stepped in to block that order and the Supreme Court today declined to intervene. The DNC also tried to enforce a decades-long consent decree restricting “ballot security” activities by the RNC. A federal court in New Jersey found some evidence of a potential violation in Nevada but not enough to issue relief.
Although these look like defeats for the Democrats, they may have partly won by losing. The possibility of judicial intervention should cause the RNC and Trump campaign to avoid anything that smacks of intimidation. Trump ally Roger Stone, for example, has declared under oath that “Stop the Steal” volunteers have been warned to avoid intimidation. The RNC is likely to be especially cautious, as it faces the prospect of the DNC v. RNC consent decree being extended if it is found to have engaged in prohibited ballot security activities.
That’s not to say that there’s no risk of voter intimidation tomorrow. In fact, the risks are greater than in previous presidential elections. What worries me most isn’t what happens inside the polling place, but what happens outside. Trump’s repeated – and totally unsubstantiated – claims that the election is rigged could prompt some supporters to take matters into their own hands. Even if the Trump campaign and RNC avoid intimidation, we can’t assume that Trump supporters will be so restrained.
Suppose, for example, that ordinary citizens stand guard outside a polling place looking for people who they suspect aren’t citizens. Violence is possible but more likely, and more insidious, is that their mere presence might discourage eligible citizens who just want to avoid any sign of trouble. The risk of vigilante justice is thus substantial, even if the Trump campaign and Republican Party avoid any impropriety.
There are both federal and state laws designed to protect voters from intimidation. The Voting Rights Act prohibits voter intimidation, even by private parties. And in Burson v. Freeman, the Supreme Court upheld a state law restricting election-related speech within 100 feet of polling places, in order to protect the right to vote. Many states have chosen to adopt such restrictions on speech around polling places. That said, those who wish to engage in election observation, electioneering, exit polling, or other forms of speech near polling places have the right to do that, so long as they comply with applicable state rules and avoid true threats.
To clarify what’s permissible and what’s not, I asked my research assistant to compile a summary of some of the swing states’ statutes and decisions governing activities around polling places, which appears at the end of this post. This table shows that several swing states have 100-foot zones like that approved in Burson. Some allow these activities closer to the polls and one (Iowa) restricts speech 300 feet from a polling place entrance.
For those concerned about the prospect of intimidation in tomorrow’s election, the most important message is this: The right to vote is sacred. People marched, suffered, and died to make sure that all of us are able to vote. Don’t let anyone intimidate you from exercising that right.
Voter Intimidation Statutes and Case Law
Compiled by Katy Shanahan, Moritz College of Law, J.D. Expected 2017
Colorado
C.R.S.A. § 1-13-714: No person shall do any electioneering on the day of any election, or during the time when voting is permitted for any election, within any polling location or in any public street or room or in any public manner within one hundred feet of any building in which a polling location is located, as publicly posted by the designated election official.
Florida
F.S.A. § 102.031(4)(a): No person, political committee, or other group or organization may solicit voters inside the polling place or within 100 feet of the entrance to any polling place, a polling room where the polling place is also a polling room, an early voting site, or an office of the supervisor of elections where vote-by-mail ballots are requested and printed on demand for the convenience of electors who appear in person to request them.
Case Law
Florida statute creating “No Approach Zone” within 100 feet of the entrance to polling place on election days did not violate First Amendment, as it was applied to ban political action committee and civil rights organization from engaging in exit solicitation about non-ballot issue of amendment to city charter that would create citizen oversight panel for city’s police department; while application infringed to some extent on plaintiffs’ right to engage in political speech, the restriction was necessary and narrowly tailored to protect compelling interests in protecting voters from confusion and undue influence and preserving integrity of the election process. Citizens for Police Accountability Political Committee v. Browning, C.A.11 (Fla.)2009, 572 F.3d 1213
Subsection (3) of this section forbidding soliciting or attempting to solicit any opinion for any purpose within 150 feet of polling place on election day was overbroad and facially invalid. Florida Committee for Liability Reform v. McMillan, M.D.Fla.1988, 682 F.Supp. 1536
Iowa
I.C.A. § 39A.4(1)(a)(1): Loitering, congregating, electioneering, posting signs, treating voters, or soliciting votes, during the receiving of the ballots, either on the premises of a polling place or within three hundred feet of an outside door of a building affording access to a room where the polls are held, or of an outside door of a building affording access to a hallway, corridor, stairway, or other means of reaching the room where the polls are held. This subparagraph does not apply to the posting of signs on private property not a polling place, except that the placement of a sign that is more than ninety square inches in size on a motor vehicle, trailer, or semitrailer, or its attachment to a motor vehicle, trailer, or semitrailer parked on public property within three hundred feet of a polling place is prohibited.
Ohio
Ohio Rev. Code Ann. § 3501.30(A)(4): Two or more small flags of the United States approximately fifteen inches in length along the top, which shall be placed at a distance of one hundred feet from the polling place on the thoroughfares or walkways leading to the polling place, to mark the distance within which persons other than election officials, observers, police officers, and electors waiting to mark, marking, or casting their ballots shall not loiter, congregate, or engage in any kind of election campaigning.
Case Law
Secretary of State could not ban exit polling near polling entrances by oral directive. American Broadcasting Co., Inc. v. Blackwell (479 F.Supp.2d 719, 722+, S.D.Ohio)
The state using a portion of private property for Election Day does not equate to an intent to open up the entire property to public discourse. Petition circulators were not deprived of their First Amendment free speech rights when they were ordered to move from public sidewalk to position beyond 100 feet from polling place pursuant to state statute creating “campaign-free zone”; decision to exclude circulators from parking lots and walkways leading to polling places was reasonable and viewpoint-neutral. United Food and Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738
North Carolina
N.C.G.S.A. § 163-166.4(a): No person or group of persons shall hinder access, harass others, distribute campaign literature, place political advertising, solicit votes, or otherwise engage in election-related activity in the voting place or in a buffer zone which shall be prescribed by the county board of elections around the voting place. In determining the dimensions of that buffer zone for each voting place, the county board of elections shall, where practical, set the limit at 50 feet from the door of entrance to the voting place, measured when that door is closed, but in no event shall it set the limit at more than 50 feet or at less than 25 feet.
Case Law
Amendment of North Carolina statute extending prohibition against electioneering from 50 feet within voting place to 500 feet in 6 counties was a change in “standard, practice, or procedure with respect to voting,” within Voting Rights Act and was unenforceable in 4 of the counties which were covered by the Act for failure to obtain prior approval of United States District Court for the District of Columbia or to submit amendment to Attorney General of United States. Clayton v. North Carolina State Bd. of Elections, 1970, 317 F.Supp. 915
Pennsylvania
25 P.S. § 3060(c); (d): No person, when within the polling place, shall electioneer or solicit votes for any political party, political body or candidate, nor shall any written or printed matter be posted p within the said room, except as required by this act. All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers, when permitted by the provisions of this act, must remain at least ten (10) feet distant from the polling place during the progress of the voting.
Case Law
Pennsylvania statute creating a ten-foot buffer zone between voter and polling place operated as a content-neutral regulation of general application governing the physical location of those seeking to observe or influence polling activities and protected an individual’s right to cast a ballot in an election free from the taint of intimidation and fraud, and therefore did not violate newspaper’s First Amendment free speech and press rights; newspaper did not, as a member of the press, enjoy a special constitutional right of access to polling places. PG Pub. Co. v. Aichele, W.D.Pa.2012, 902 F.Supp.2d 724
A candidate is not entitled to be present in a polling place during the time polls are open except for the purpose of casting his own ballot, and county boards of elections are within their legal authority when they instruct election officers to such effect, notwithstanding §§ 3506, 3507 of this title, since presence of candidates in polling places is not affirmatively authorized by Election Code. In re General Election to be Held in City and County of Philadelphia, 75 A.2d 812, 366 Pa. 6, Sup.1950
Virginia
Va. Code Ann. § 24.2-604(A): During the times the polls are open and ballots are being counted, it shall be unlawful for any person (i) to loiter or congregate within 40 feet of any entrance of any polling place; (ii) within such distance to give, tender, or exhibit any ballot, ticket, or other campaign material to any person or to solicit or in any manner attempt to influence any person in casting his vote; or (iii) to hinder or delay a qualified voter in entering or leaving a polling place.
Wisconsin
Wis. Stat. § 12.03(2)(b)(1), (d); (4): No person may engage in electioneering during polling hours on any public property on election day within 100 feet of an entrance to a building containing a polling place. This subsection does not apply to the placement of any material on the bumper of a motor vehicle that is parked or operated at a place and time where electioneering is prohibited under this subsection. In this section, “electioneering” means any activity which is intended to influence voting at an election.
Case Law
Wisconsin statute prohibiting electioneering within 500 feet of election place on election day unconstitutionally infringed on free speech rights of homeowners living across the street from official polling place; although state had compelling interest in maintaining integrity of election process and in keeping voters free from intimidation and harassment, statute was not narrowly tailored to achieve such interest. Calchera v. Procarione, E.D.Wis.1992, 805 F.Supp. 716.