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Restrictions on Campaign Materials for Early Voting

Protections of the electoral process and the individual right to vote are integral to our democracy.  Defense of the First Amendment freedom of expression is also crucial to the continuance of our republic. The government restricts expressive campaign materials in the vicinity of polling places to guard voting rights and preserve the integrity of the electoral process; in doing so, it must not violate our freedom of expression.  Like many other states, Georgia has struggled to walk this fine line. Georgia Southern University’s designation as a polling place for the 2016 election will allow students to watch this balancing act firsthand.

Georgia law prohibits the distribution or display of “any campaign literature, newspaper, booklet, pamphlet, card, sign, paraphernalia, or any other written or printed matter of any kind … on any day in which ballots are being cast … within 150 feet of the outer edge of any building within which a polling place is established; within any polling place; or within 25 feet of any voter standing in line to vote at any polling place.” [O.C.G.A. § 21-2-414 (a)].  The solicitation of signatures for a petition and exit/opinion polls are also prohibited in these areas. [O.C.G.A. § 21-2-414 (a)].  The restrictions do not apply to “conduct occurring in private offices or areas which cannot be seen or heard by” voters. [O.C.G.A. § 21-2-414(a)].    One of the main goals of these types of restrictions is to avoid voter intimidation and fraud; in the past, polling sites were actually scenes of bribery and violence. Burson v. Freeman 504 U.S. 191 (1992).  The Supreme Court expressed three central concerns arising from such regulations of campaign materials.  The state is regulating political speech, restricting the use of a public forum, and doing so on the basis of the content of the speech — actions that can violate the First Amendment. Burson v. Freeman 504 U.S. 191 (1992).  Statutes limiting speech at polling places are constitutional only if they are “necessary to serve a compelling state interest” and are “narrowly drawn to achieve that end.” Burson v. Freeman 504 U.S. 191, 198 (1992).   Basically, the state has to have a very good reason, and be very careful about how it reaches that goal.  If the regulation burdens more speech than necessary to protect voting rights, it may be unconstitutional.

Georgia crossed that line with a prior version of the polling place regulation; a federal court found it was too broad. National Broadcasting Co. v. Cleland, 697 F. Supp. 1024 (N.D. Ga. 1988).  The controversy continues.  In 2014, in Douglas County Georgia, officials required that voter Bundy Cobb remove his National Rifle Association Instructor hat before allowing him to vote. Cobb claims he was told that, because the NRA is seen as associated with Republicans, his hat was illegal campaign material. Cobb sued in federal district court. Cobb v. Douglas County No. 1:14-cv-0398-CAP (N.D. Ga. Filed Dec. 8, 2014).  During the litigation, Attorney General Sam Olens issued an Opinion on O.C.G.A. § 21-2-414, stating that the law only applied to “campaign speech involving candidates and issues at the poll,” and broader restrictions could be considered unconstitutional. (Opinion of Samuel S. Olens, Attorney General of Georgia, March 20, 2015).  The County Board of Elections and Registration later apologized and enacted a new policy.  However, conflicts between these two fundamental rights are likely to surface again in the future; they are necessary struggles in a system in which the people hold supreme power.

For more information please see this link.

Maureen Stobb, J.D., Ph.D.

Assistant Professor of Political Science

Georgia Southern University

 

Last updated: 9/16/2016