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Electioneering Laws and Election Interference

There are any number of ways to interfere with the American election process. Russia's efforts to influence the 2016 presidential election, voter suppression, and civil rights violations that impede your right to vote are just a few examples. A significant way to influence the outcomes of elections is to engage in electioneering.

Electioneering involves the persuasion of voters in a political campaign. This includes advocating in support of, against, or in the interest of, a specific candidate, party, or proposition during in an election. It can be achieved through more active means such as making public speeches or through more subtle means, like holding signs near polling places or wearing political paraphernalia with the intent to influence voters.

This article discusses electioneering laws and election interference, and will cover the following:

  • Restrictions on campaigning in or around polling places on election day;
  • The laws that prohibit the rigging or hacking of votes; and
  • What voters can do if they suspect violations of electioneering laws or election interference.

Electioneering Laws and Election Interference: Restrictions on Polling Sites

Each state has some version of law that regulates electioneering near polling sites on election day. For example, Minnesota's electioneering laws restrict such things as:

  • The presence of unauthorized persons at a polling place;
  • Campaigning within 100 feet of a polling place;
  • The manner and location where exit polling can take place; and
  • The location and conduct of news media representatives at polling places.

Apparel Requirements at Polling Sites

Many of the restrictions on action in and around polling sites also include provisions on what a person can wear or display when casting a vote.

For instance, Kansas law forbids any "wearing, exhibiting or distributing labels, signs, poster, stickers or other materials that clearly identify a candidate in the election or clearly indicate support or opposition to a question submitted election within any polling place on election day..." Kansas criminalizes electioneering as a class C misdemeanor, punishable by up to a month in jail and fines of up to $500. Other states including California, Delaware, Kansas, Montana, New Jersey, New York, South Carolina, Tennessee, Texas, and Vermont have similar laws.

The U.S. Supreme Court addressed the issue of apparel restrictions at polling places in a 2018 decision which held that a universal ban on apparel with political messages in polling sites violates the First Amendment's free speech protections. However, the ruling does allow for apparel restrictions that aren't overly broad and which "prohibit messages intended to mislead voters about voting requirements and procedures."

State Laws on Photography in Polling Places

The laws on photography, including selfies and other forms of videotaping devices in polling places, vary from state to state. For example, voting selfies are completely legal in states like Tennessee as long as they don't reflect voter intimidation, fraud, or selling votes. However, some states including Florida, Georgia, and Colorado, have a clear ban. Other states take a more ambiguous approach, like Ohio which has a law prohibiting voters from revealing how they voted. This could include a selfie if it reveals a marked ballot, but selfies aren't specifically addressed in the law.

Media Campaign Disclosure Laws

Media is another major influence on elections and can help to facilitate election interference. The individuals and groups that run ads for political campaigns that refer to "clearly identified candidates" are subject to campaign disclosure laws. This means that identifying information about the ad's sponsors (including name and address) must be made available to the public, which makes the spender accountable. At the federal level, an "electioneering communication" only refers to TV and radio advertisements and the disclosure laws only applied to these forms of media.

However, a lot of political ads incorporate the internet and print media such as direct mail, magazines, and newspaper. About half of the states in the country changed their laws to reflect other forms of media to protect against election corruption. For example, Arizona's list of covered media includes billboards, broadcast, direct mail, internet, and print.

The Federal Election Campaign Act

The Federal Election Campaign Act (FECA) is a federal law that governs campaign finance and fundraising. It created the Federal Election Commission (FEC), a regulatory agency that enforces campaign finance laws including the FECA. One way that the Act attempts to control electioneering is a provision that prohibits certain electoral activities by foreign nationals, such as:

  • Making any contribution or donation of money/other thing of value, or making any expenditure, or disbursement connected with any U.S. federal, state, or local election;
  • Making any contribution or donation to any committee or organization of any national, state, district, or local political party;
  • Making any disbursement for an electioneering communication; or
  • Making any donation to a presidential inaugural committee.

Any individual (except "green card holders" who may make election contributions or donations) who willingly participates in the forbidden activities is subject to penalties including an FEC enforcement action and/or criminal prosecution.

Electioneering Laws and Election Interference: Reporting Violations

If you think you've experienced or observed voter intimidation, even if you're not sure if it violated the law, you can report it directly to your state election office. Alternatively, you also can make a complaint with the Civil Rights Division of the Department of Justice. These agencies are responsible for investigating violations and moving forward with criminal charges, as warranted.

Questions About How Electioneering Laws Affect You? Ask an Attorney

Electioneering laws are enacted to protect against election interference. When these laws are broken, it can have a significant impact on a society by damaging the political process. If you've been harmed by an electioneering law violation, contact an experience civil rights attorney who can tell you help you evaluate your case and determine how to proceed.

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