ELECTIONEERING: PEACE AND GOOD ORDER

AT THE POLLS

Don WrightGeneral Counsel

NC State Board of ElectionsAugust 2014

General Concept From a New Jersey Supreme Court Ruling, 9/30/2009

“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.”

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)

Burson Case

State “buffer zone” laws must be reasonable as to time, place, and manner restrictions under the First Amendment protection of political speech. These buffer zone laws are intended to secure and enhance another vital constitutional right—the right to vote.

In the Burson case, Justice Blackmun surveyed the historical record of election improprieties surrounding polling precincts. Blackmun observed 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.”

WERE THESE TRULY FREE ELECTIONS?

VOICE VOTINGOPEN VOTING WITH SELF PROVIDED BALLOT

THE AUSTRALIAN BALLOT, THE SECRET BALLOT

Victoria and South Australia in Australia were the first states to introduce secrecy of the ballot (1856), and for that reason the secret ballot is referred to as the Australian ballot. In Great

Britain, the secret ballot was introduced for all parliamentary and municipal elections by the Ballot Act of 1872. In the United States, the

Australian ballot system was extensively adopted after the presidential election of 1884.

It was in 1929 that N.C. mandated the Australian Ballot in the General Statutes.

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 occur.

Volume and content of communications made to voters by campaign workers is disturbing.

But Give Thanks. Venezuelan soldiers custody a polling center in San Cristobal

Tachira...

Solutions

Place curbside voting location within buffer zone whenever possible.

Have precinct workers monitor the zone. Discuss concerns with campaign workers. Discuss concerns with candidates and

political parties. Media coverage will often expose issues. Encourage voters to voice their

complaints to the candidates or parties creating disruptions.

Assert your authority under GS 163-47 and GS 163-48.

MEDIA DOES NOT HAVE SUPERIOR RIGHTS TO POLL ACCESS

1. The media memo of April 2008, which was formulated with input for the NC Association of Broadcasters, is still current policy.2. Remember that photos are limited. GS 163-166.33. Press access is equal to public access .Branzburg v. Hayes, 408 U.S. 665 (1972).4. Post Gazette Pub. Co. v Aichele, 705 F3d 91 ( 3d Circuit 2013)5. All of the foregoing applies to exit polls as well.

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; and

prevent “riots, violence, tumult, or disorder.”

Enforcement Provisions of GS 163-48

Precinct judges may call upon law enforcement to aid in

keeping peace and good order. may order arrest for violation of statute [Note: No arrest shall be ordered

unless the precinct judge has witnessed a violation, and, having warned the violator, sees a subsequent intentional violation. An unlawful arrest under this statute may create legal liability.]

may deputize persons as law enforcement to aid peace and good order

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)

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)

OBSERVERS

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