Legality of Certain Activities in Vicinity of Polling Place

Election Advisory No. 2012-16

To: County Election Officers (County Clerks, Election Administrators or Tax Assessor Collectors)
From: Keith Ingram, Director of Elections
Date: July 19, 2012
RE: Legality of Certain Activities in Vicinity of Polling Place


As you prepare for the November 6, 2012 general election for state and county officers, we wish to advise you of state law on several early voting and election day polling place issues.
Cell Phones
Persons are not allowed to use a wireless communications device within 100-feet of the voting stations. Tex. Elec. Code Ann. § 61.014(a) (Vernon 2011). Additionally, persons are not allowed to use a mechanical or electronic device to record sound or images within 100-feet of the voting stations. Id. § 61.014(b). Said devices include but are not limited to cell phones, digital phones, cameras, phone cameras and sound recorders. A voting station is the area where the voter marks the ballot. Id. § 1.005(22). The early voting clerk and the presiding judge, as appropriate, have the authority to require persons to deactivate any such devices and further authority to require persons who do not comply to leave the early voting or election day polling place, as appropriate. Id. §§ 61.014(c), 81.002.


At the discretion of the early voting clerk or presiding judge, as appropriate, notice of the prohibition of the use of certain devices under Section 61.014 of the Code may be posted at one or more locations in the early voting or election day polling place, as appropriate, where it can be read by persons waiting to vote. Id. §§ 62.0111, 81.002. Our office has prescribed the wording of such a posted notice.

The prohibition under Section 61.014 of the Code does not apply to (1) an election officer in conducting the officer’s official duties; (2) the use of election equipment necessary for the conduct of the election; or (3) a person who is employed at the location in which an early voting or election day polling place is located while the person is acting in the course of the person’s employment. Id. §§ 61.014(d), 81.002.

A poll watcher may not be accepted for service if the poll watcher has possession of a device capable of recording images or sound unless the poll watcher agrees to disable or deactivate the device. Id. § 33.051(c). The early voting clerk or presiding judge, as appropriate, may inquire whether a poll watcher has possession of any prohibited recording device before accepting the poll watcher for service. Id. The poll watcher must sign an oath stating he or she does not have in his or her possession devices capable of recording images or sound or that he or she will disable or deactivate the devices while serving as a watcher. Id. § 33.006(b)(6).

A poll watcher is considered to have served continuously if the poll watcher leaves the early voting or election day polling place for the purpose of using a wireless communication device prohibited from use in the polling place under Section 61.014 of the Code and the poll watcher promptly returns. Id. § 33.052(b)

Questions or clarification should be directed to the early voting clerk or the presiding judge in your polling place, as appropriate.
Exit Polling
The policy of our office is to permit non-disruptive exit polling within the 100 foot boundaries surrounding each early voting and election day polling place. We note that the early voting clerk or presiding judge at each polling place, as appropriate, must determine that such exit polling does not constitute either (1) “loitering” in violation of Section 61.003(a) of the Code or (2) a disruption of order or a contribution to a breach of the peace at the early voting or election day polling place in violation of Section 32.075(a) of the Code, as applicable to early voting under Section 81.002 of the Code. Id. §§ 61.003(a), 32.075, 81.002.

Electioneering
Each early voting and election day polling place must be organized with 100 foot distance markers posted at surrounding outside entries to the building. During the voting period and inside this protected area, it is prohibited to electioneer, including expressing preference for or against any candidate, measure, or political party; per Sections 61.003 and 85.036 of the Code, a violation of this provision is a Class C misdemeanor. Id. §§ 61.003, 85.036. It is also prohibited to use a sound amplification device to electioneer within 1,000 feet of the early voting or election day polling place; per Section 61.004 of the Code, a violation of this provision is a Class C misdemeanor. Id. § 61.004. (Applicable to early voting under Section 81.002 of the Code.) Id. § 81.002.


Please note that the early voting clerk and the presiding judge of each polling place, as appropriate, have the authority of a district judge while serving in that capacity. Id. § 32.075(c). (Applicable to early voting under Section 81.002 of the Code.) Id. § 81.002. This authority enables the early voting clerk or the presiding judge, as appropriate, to use his or her discretion to ensure the safety and efficiency of the early voting and election day polling place and the surrounding 100-foot area. However, Section 32.075(e) of the Code specifically states that a presiding judge may not enforce electioneering provisions outside of the 100 foot distance markers. Id. § 32.075(e). (Applicable to the early voting clerk under Section 81.002 of the Code.) Id. § 81.002.

If you or your presiding judges have questions as to what constitutes electioneering, encourage them to contact either your office or our office directly with specific questions.
Petition Signature Gathering
Please be advised that any persons who wish to gather petition signatures must do so beyond the 100-foot distance markers. Petition signatures for any type of election may not be collected inside the early voting or election day polling place or within the 100-foot distance marker. Petition gathering is considered electioneering for or against a measure, which is prohibited within the 100-foot distance marker. Id. §§ 61.003, 85.036.

Use of Firearms by Law Enforcement
Please note that Section 46.03(a) of the Texas Penal Code generally prohibits a person from bringing a firearm onto the premises of a polling place. Tex. Pen. Code Ann. § 46.03 (Vernon 2011). However, this prohibition does not apply to a peace officer, regardless of whether the police officer is on or off duty. For this and other potentially applicable exceptions, see Tex. Pen. Code Ann. § 46.15 (Vernon 2011).


We hope you find this information helpful. Please contact us at 1-800-252-2216 if you have any questions.

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