Electioneering: Peace and Good Order at the Polls

1. Electioneering: Peace and Good Order at the Polls Don Wright General Counsel NC State Board of Elections December 2010

2. General Concept The area surrounding a polling place constitutes a nonpublic forum, and thus, a statute restricting expressive activity within that area need only be reasonable and viewpoint-neutral to satisfy the First Amendment right of political speech. Such statutes were adopted to ensure a minimal level of order and decorum and to reduce the potential for fraud, coercion, and confusion outside polling precincts on Election Day. The broad language of these election laws demonstrates that State Legislatures never intended in the last part of the path leading to the polling place for a voter to have to walk, or run, by a gauntlet of hawkers, hustlers, protesters, pollsters shouting questions, or even voting-rights advocates handing out cards.

3. Burson v. Freeman The United States Supreme Court’s decision in Burson v. Freeman (1992) concluded that, to a reasonable extent, a state may: “regulate conduct in and around the polls in order to maintain peace, order and decorum there.” 504 U.S. at 193, 112 S. Ct. at 1848, 119 L. Ed. 2d at 11 (plurality opinion)

4. Burson Case State “buffer zone” laws must be reasonable as to time, place, and manner restrictions under the First Amendment protection of political speech and intended to secure and enhance another vital constitutional right—the right to vote. Justice Blackmun in this case surveyed the historical record of election improprieties surrounding polling precincts, observing that “all 50 States, together with numerous other Western democracies, settled on the same solution: A secret ballot which is secured in part by a restricted zone around the voting compartments.”

5. Complaints From Voters • Campaign workers block passageways to the polling locations right outside the start of buffer zones • Mobility impaired voters suffer disproportionally from such pathway blockage • Curbside voters outside the buffer zone are swarmed • Unwelcomed touching and unruly conduct • Volume and content of communications made to voters by campaign workers

6. Solutions • Place curbside voting location within buffer zone whenever possible • Presence of precinct workers monitoring zone • Discussion with campaign workers • Discussion with candidates/political parties • Media coverage to expose issue • Have voters complain to candidates/parties • Use authority under GS 163-47 and GS 163-48

7. GS 163-47 and 163-48 Precinct judges will: • Enforce “peace and good order”… in and about the place of…voting” • Prevent and stop attempts “to obstruct, intimidate or interfere” with any person voting • Prevent “riots, violence, tumult, or disorder”

8. Enforcement Provisions of GS 163-48 • May call upon law enforcement to aid in keeping peace and good order • May order arrest for violation of statute Do not use this authority unless the precinct judge has witnessed a violation, and having warned the violator, sees another intentional violation afterwards. An unlawful arrest under this statute may create legal liability. • May deputize persons as law enforcement to aid peace and good order

9. Other Laws • GS 163-274(4) • For any person to be guilty of any boisterous conduct so as to disturb any member of any election board or any chief judge or judge of election in the performance of his duties as imposed by law; (Misdemeanor) • GS 163-275 (10) • For any person to assault any chief judge, judge of election or other election officer while in the discharge of his duty in the registration of voters or in conducting any primary or election; (Felony)

10. Other Laws • GS 163-275 (11) • For any person, by threats, menaces or in any other manner, to intimidate or attempt to intimidate any chief judge, judge of election or other election officer in the discharge of his duties in the registration of voters or in conducting any primary or election; (Felony)

11. OBSERVERS These laws as to good order, peace, and protection of precinct workers apply equally to observers engaged in misconduct inside the polling place.