Was Maryland's 300-foot electioneering ban around polling places in certain counties still constitutional after the Supreme Court's 1992 Burson v. Freeman decision?

Plain-English summary

Maryland's State Administrator of Election Laws asked the Attorney General whether a 300-foot electioneering ban in effect in seven Maryland counties, Anne Arundel, Cecil, Charles, Garrett, Harford, Kent, and Queen Anne's, could still be enforced after the U.S. Supreme Court's 1992 decision in Burson v. Freeman, which upheld a Tennessee law banning electioneering within 100 feet of a polling place. Everywhere else in Maryland, the electioneering ban only reached 100 feet from the polls; the seven named counties had a separately enacted 300-foot version.

The Attorney General concluded the 300-foot ban was so likely unconstitutional that it should not be enforced beyond 100 feet in the upcoming November 3, 1992 election, and recommended prosecutors use their discretion to enforce it only within the ordinary 100-foot zone. Burson upheld the 100-foot ban only after finding a compelling national history of voter intimidation and fraud that justified some restricted zone, a consensus among all 50 states that such zones were needed, and a demonstrated risk that lifting the restriction would recreate an "open-auction" atmosphere at the polls; the Court did not decide how large a zone could permissibly be, but signaled that at some distance a ban would become an impermissible burden on speech. The opinion found none of Burson's justifications supported Maryland's 300-foot version, which was added county by county starting in 1974 without any legislative showing that those seven counties faced problems different from the rest of the state, and noted the sporadic, county-by-county pattern also created equal protection exposure. The opinion recommended that the State Administrative Board of Election Laws seek repeal of the 300-foot provision in the 1993 legislative session.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was Maryland's 300-foot electioneering ban in certain counties still enforceable after Burson v. Freeman? The opinion concluded it was so likely unconstitutional that it should not be enforced to the letter; prosecutors were advised to use their discretion and enforce the law in the affected counties only as to electioneering within 100 feet of a polling place, the same zone that applied statewide.

Why did the Supreme Court uphold Tennessee's 100-foot electioneering ban in Burson v. Freeman, but Maryland's Attorney General doubted the state's 300-foot version? According to the opinion, Burson upheld the 100-foot ban based on a compelling national history of voter intimidation and fraud, a nationwide consensus among all 50 states favoring some restricted zone, and evidence that removing such bans risked recreating disorder at the polls. The opinion found none of those justifications supported Maryland's 300-foot extension, which was adopted piecemeal in seven counties starting in 1974 without any showing those counties faced different problems than the rest of the state.

What did the Attorney General actually recommend prosecutors and election officials do about the 300-foot ban for the November 1992 election? The opinion recommended prosecutors use their discretion to enforce the electioneering law in the seven affected counties only within the standard 100-foot zone, and recommended the State Administrative Board of Election Laws introduce legislation in 1993 to repeal the 300-foot provision.

Which Maryland counties had the stricter 300-foot electioneering ban this opinion addressed? The opinion identified the affected counties as Anne Arundel, Cecil, Charles, Garrett, Harford, Kent, and Queen Anne's.

Background and statutory framework

Article 33, §24-23(a)(4)(i) generally prohibited electioneering, canvassing, or posting campaign material within 100 feet of a polling place entrance and exit on election day, a rule first enacted statewide in Chapter 202 of the Laws of Maryland 1896. Beginning about 80 years later, the legislature widened that zone to 300 feet in seven counties through a series of separate enactments: Anne Arundel County in Chapter 202 of the Laws of Maryland 1974, Harford County in Chapter 592 of the Laws of Maryland 1975, Cecil, Kent, and Queen Anne's Counties in Chapter 99 of the Laws of Maryland 1987, and Garrett and Charles Counties in Chapters 145 and 584 of the Laws of Maryland 1988. A violation was a misdemeanor under Article 33, §24-27(a).

Burson v. Freeman upheld Tennessee's 100-foot ban by a 5-3 vote, with the Supreme Court treating the restriction as content-based regulation of political speech in a public forum subject to strict scrutiny, meaning the state had to show the ban served a compelling interest and was narrowly tailored to it. The Court found preserving the right to vote freely and protecting voters from confusion and undue influence were compelling interests, and that a national history of voter intimidation and fraud, a consensus among all 50 states favoring some restricted zone, and the practical difficulty of proving necessity once a ban has already eliminated the underlying problem, together justified the 100-foot zone as a "minor geographic limitation." The Court did not decide how large a zone could permissibly be, but noted that at some distance, regulation of vote solicitation could become an impermissible burden.

Applying that framework, the opinion concluded Maryland's 300-foot extension could not survive strict scrutiny. It found no legislative history showing the seven affected counties had problems different in kind or degree from the rest of the state, only a passing reference to voter dissatisfaction with a "gauntlet" of political handouts and one administrator's remark that a 300-foot limit "eliminates electioneering" entirely, which the opinion read as evidence the ban went further than merely regulating disruption. The opinion cited two pre-Burson federal appellate decisions striking down other states' 300-foot restrictions on similar grounds (an overbroad Florida petition-solicitation ban and a Washington exit-polling ban that failed strict scrutiny), as well as Supreme Court precedent holding that complete silencing of political expression near an election violates the First Amendment. It also flagged that the piecemeal, county-by-county pattern of adoption created exposure under the Equal Protection Clause, drawing a parallel to a federal court decision striking down a similarly uneven North Carolina electioneering-zone statute because the state could offer no reason the excepted counties differed from the rest.

Citations and references

Statutes:

• Article 33, §24-23(a)(4)(i), the statewide 100-foot electioneering ban
• Article 33, §24-23(a)(4)(ii), the 300-foot ban in the seven named counties
• Article 33, §24-27(a), the misdemeanor penalty provision
• Chapter 202 of the Laws of Maryland 1896, original statewide 100-foot ban
• Chapter 202 of the Laws of Maryland 1974 (Anne Arundel), Chapter 592 of the Laws of Maryland 1975 (Harford), Chapter 99 of the Laws of Maryland 1987 (Cecil, Kent, Queen Anne's), and Chapters 145 and 584 of the Laws of Maryland 1988 (Garrett, Charles), the county-by-county 300-foot extensions

Cases:

• Burson v. Freeman, 112 S.Ct. 1846 (1992), U.S. Supreme Court
• Eu v. San Francisco Dem. Comm., 489 U.S. 214, 223 (1989), U.S. Supreme Court
• Daily Herald Co. v. Munro, 838 F.2d 380 (9th Cir. 1988), federal appeals court
• Florida Committee for Liability Reform v. McMillan, 682 F. Supp. 1536, 1542 (M.D. Fla. 1988), federal district court
• Mills v. Alabama, 384 U.S. 214 (1966), U.S. Supreme Court
• Meyer v. Grant, 486 U.S. 414 (1988), U.S. Supreme Court
• Clean-Up '84 v. Heinrich, 759 F.2d 1511 (11th Cir. 1985), federal appeals court
• Clayton v. North Carolina State Board of Elections, 317 F. Supp. 915 (E.D.N.C. 1970), federal district court

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 62 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ELECTIONS

Constitutional Law - Freedom of Speech - Political Speech

- 300 Foot Electioneering Ban in Certain Counties

Likely Violates First Amendment

                          October 20, 1992

Mr. Gene M. Raynor
State Administrator of Election Laws

You requested our opinion on the enforceability of Article 33, §24-23(a)(4)(ii) of the Maryland Code, which creates in seven Maryland counties a more stringent ban on electioneering than in the rest of the State. Whereas Article 33, §24-23(a)(4)(i) generally prohibits electioneering within 100 feet of polling places on election day, the exception in §24-23(a)(4)(ii) widens the prohibited zone to 300 feet in the affected counties. Specifically, you question the impact on the 300 foot ban of the recent Supreme Court decision in Burson v. Freeman, 112 S.Ct. 1846 (1992), which upheld a Tennessee law prohibiting electioneering within 100 feet of a polling place entrance on election day.

For the reasons stated below, we conclude that the 300 foot ban would so likely be held unconstitutional after Burson that it should not be enforced to the fullest in the November 3, 1992 general election. We suggest that prosecutors use their discretion to enforce the law in the seven affected counties only as to electioneering that takes place within 100 feet of a polling place. Furthermore, we recommend that the State Administrative Board of Election Laws ("SABEL") introduce departmental legislation in the 1993 legislative session to repeal §24- 23(a)(4)(ii).

I

Maryland's Electioneering Bans

Article 33, §24-23 provides in pertinent part as follows:

(a) The following offenses shall be punished as in this section provided. For any person:

(4) (i) To canvass, electioneer or post any campaign material in the polling place or beyond a line established by signs posted in accordance with this paragraph. At each polling place, 2 election judges, 1 from each principal political party, ... shall post signs outlining a line around the entrance and exit of the building closest to that part of the building in which voting occurs. The line shall be located as near as practicable to 100 feet from the entrance and exit .... The signs shall contain the following or comparable language: "No Electioneering Beyond this Point".

(ii) In Anne Arundel, Cecil, Charles, Garrett, Harford, Kent and Queen Anne's Counties, to canvass, electioneer, or post any campaign literature or material on election day in a polling place or within a 300 foot radius from the entrance and exit of the building closest to that part of the building in which voting occurs.

Although not defined in Article 33, the term "electioneering" has a generally accepted meaning: "to work for, or in the interest of, a person, ticket, party, or the like, in an election." Webster's New International Dictionary 825 (2d ed. 1953). "Canvassing" covers activity designed "to solicit pledges, votes, etc., to try to secure political support, or to ascertain the probable number of one's adherents." Id. at

395. The electioneering ban thus prohibits activities like posting signs
     and handing out campaign literature for or against a candidate or ballot issue. It also extends to soliciting signatures on petitions like charter board or charter amendment petitions with the intent to have an issue placed on a future election ballot.

     The 100 foot electioneering provisions were first enacted in
     Chapter 202 of the Laws of Maryland 1896 and were applicable statewide until fairly recently. Approximately 80 years after enactment, the Legislature approved a 300 foot ban for Anne Arundel County in Chapter 202 of the Laws of Maryland 1974. Approval for other counties to widen the protective zone to 300 feet has been granted sporadically by the Legislature: to Harford County in Chapter 592 of the Laws of Maryland 1975; to Cecil, Kent, and Queen Anne's Counties in Chapter 99 of the Laws of Maryland 1987; and to Garrett and Charles Counties in Chapters 145 and 584 of the Laws of Maryland 1988, respectively.

                                     II
     
                          Burson v. Freeman
     

     The United States Supreme Court, by a 5-3 vote, recently upheld
     a Tennessee law prohibiting the solicitation of votes and the display of campaign material within 100 feet of the entrance to polling places. Burson v. Freeman, 112 S.Ct. 1846 (1992). Justice Blackmun, writing for the majority, found that the ban regulated political speech in a public forum and regulated that speech based on its content. The Court emphasized that "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." 112 S. Ct. at 1850 (quoting Eu v. San Francisco Dem. Comm., 489 U.S. 214, 223 (1989)).

     Clarifying the level of scrutiny applicable to electioneering bans,
     the Court decided that the ban was not a content-neutral time, place, or manner restriction and must be subjected to strict scrutiny. Under strict scrutiny analysis, a ban must serve a compelling state interest and be narrowly drawn to achieve that end. 112 S.Ct. at 1851. The Court agreed that preserving the right to vote freely and protecting voters from confusion and undue influence are compelling state interests.

     Emphasizing that laws rarely survive strict scrutiny, Justice
     Blackmun shifted to a state's burden to demonstrate that its law is necessary to serve the acknowledged compelling interests. In a comprehensive examination of the development of election law reform, the Court decided that the following historical factors, in and of themselves, justified Tennessee's electioneering prohibition: A compelling national history of voter intimidation, fraud, and outright bribery established the necessity for a restricted area in and around polling places. All 50 states instituted varying electioneering prohibitions to deal with the most egregious problems. Finally, a wide- spread and time-tested national consensus exists that some restricted zone is necessary to restrain the potential for an "open-auction" atmosphere around polling places. The Court acknowledged that since electioneering bans have been in place, blatant attempts to intimidate or bribe voters on their way to vote have been few and far between. Therefore, the very existence of the bans has made it impossible for states in any practical way to prove necessity.

     The Court specifically did not decide how large a restricted zone
     is permissible, although the 100-foot boundary line was deemed not a significant impingement upon First Amendment rights and a "minor geographic limitation." 112 S. Ct. at 1857. It noted that at some measurable distance from the polls, governmental regulation of vote solicitation could effectively become an impermissible burden. 112 S. Ct. at 1857.

                                     III
     
                        Implications of Burson
     

     Looking to the three factors considered by the Supreme Court in
     Burson in upholding the 100 foot ban - a long history of use, a substantial consensus about need, and simple common sense - we do not believe that Maryland's erratically-imposed 300 foot ban can survive.

     First, we doubt that a defense of §24-23(a)(4)(ii) could escape the
     usual requirement under the First Amendment for proof of the necessity of a checkerboard, county-by-county enlargement of what is otherwise a longstanding, uniform electioneering prohibition. Legislative history reveals no special cause in any of the seven counties for the imposition of prohibition zones larger than 100 feet, except for a passing reference in testimony to voter dissatisfaction with running a gauntlet of political handouts. But as a federal district court stated in Florida Committee for Liability Reform v. McMillan, 682 F. Supp. 1536, 1542 (M.D. Fla. 1988): "[I]f the quality of this interest [in preventing voter harassment] is merely the offense suffered by a voter who approaches the polls only to be approached by a petitioner, this brief exposure to grassroots democratic process, however unpalatable to some individuals, cannot justify a restriction on speech when the offensive activity can be avoided readily by communicating a declination of interest to the petitioner."

     Furthermore, the legislative history contains an indication from a
     past SABEL administrator that "election officials from [two named counties] agree the 300 foot limit eliminates electioneering." Indeed, a 300 foot ban, the length of a football field, verges on an elimination of any meaningful visual or informational contact between voters making their way to the polls and political activists trying to get their attention.

     Complete silencing of the exposition of political views at a time
     when political discourse can be most effective has been deemed a violation of the First Amendment. Mills v. Alabama, 384 U.S. 214 (1966) (criminal penalties for publication of newspaper editorials on election day urging people to vote a certain way violated constitutional protection of free speech and the press). See also Meyer v. Grant, 486 U.S. 414 (1988) (prohibition on paying signature collectors burdens most effective method of political communication, face-to-face contact).

     Finally, it is difficult to conceive of a viable "narrow tailoring"
     justification in order to save the law under a strict scrutiny standard. The fact that the 300 foot electioneering ban extension dribbled into the law in a county-by-county manner beginning in 1974, without any apparent demonstration that each county had levels of disruption different in kind or degree from the 100 foot counties, creates an entirely different factual predicate than that for the uniform, preexisting 100 foot ban. None of the justifications pointed to by the Supreme Court in Burson exists for the 300 foot ban. The 300 foot ban was imposed in a scattered array of rural, suburban, and urban counties. It is unlikely that the State could offer an adequate justification for the imposition of additional burden on political speech created by the 300 foot extension.

     In fact, Burson's strict scrutiny analysis makes the piecemeal
     imposition of the 300 foot ban vulnerable to attack on equal protection grounds. 112 S.Ct. at 1850-51 n.3. The standards for scrutinizing content-based statutes is the same under either the First or Fourteenth Amendment. Daily Herald Co. v. Munro, 838 F.2d 380, 385 n. 6 (9th Cir. 1988). In Clayton v. North Carolina State Board of Elections, 317 F. Supp. 915 (E.D.N.C. 1970) the court held unconstitutional a statute imposing a 500 foot limitation in six of North Carolina's 100 counties and leaving a 50 foot limitation in effect in the remaining 94 counties. Closely scrutinizing the state's classification because the 500 foot ban implicated fundamental rights and liberties, the court found that "counsel tell us they know of no reason why the possibility of disruption at the polls in these six counties is any greater than in the other counties throughout the State." 317 F. Supp. at 921.

                                IV
     
                           Conclusion
     

     In summary, it is our opinion that the 300 foot electioneering ban
     in Article 33, §24-23(a)(4)(ii) ban is of such doubtful constitutionality that it should no longer be enforced to the letter. Instead, §24- 23(a)(4)(ii) should be enforced in this election only when electioneering occurs within the 100 foot zone identified in §24-23(a)(4)(i). Furthermore, we recommend that the State Administrative Board of Election Laws seek to repeal §24-23(a)(4)(ii).

                             J. Joseph Curran, Jr.
                             Attorney General
     
                             Elizabeth L. Nilson
                             Special Assistant to the Attorney General
     

Jack Schwartz
Chief Counsel
Opinions & Advice

1
Those counties are Anne Arundel, Cecil, Charles, Garrett, Harford, Kent, and Queen Anne's.

2
Violation of this provision is a misdemeanor, punishable by a fine, or imprisonment, or both. See Article 33, §24-27(a).

3
The electioneering ban does not prohibit exit polling by the media within the "depoliticized" zone. See Daily Herald Co. v. Munro, 838 F.2d 380 (9th Cir. 1988).

4
Although our office suggested in various prior letters that imposition of the 300 foot ban was constitutional, that conclusion resulted from a "reasonable time, place, and manner" analysis that can no longer be advanced.

5
Cited in the Court's opinion were electioneering bans of 100 feet or less passed by Kentucky, Massachusetts, and New York in 1888. The bans were widely praised as triumphant successes at the time. "'In early times our polling places were frequently, to quote the litany, "scenes of battle, murder and sudden death." This also has come to an end and until nightfall, when the jubilation begins, our election days are now as peaceful as our Sabbaths.'" 112 S. Ct. at 1854 (quoting a 1906 commentator).

6
Three hundred foot bans, one electioneering, one exit polling, have not withstood constitutional attack in two recent (but pre-Burson) challenges. In Clean-Up '84 v. Heinrich, 759 F.2d 1511 (11th Cir. 1985), the Eleventh Circuit held that a Florida statute prohibiting the solicitation of signatures on petitions within 300 feet of a polling place is unconstitutionally overbroad on its face. In Daily Herald Co. v. Munro, 838 F.2d 380 (9th Cir. 1988), the Ninth Circuit held that a Washington statute which prohibits exit polling within 300 feet of the polling place could not survive a strict scrutiny analysis.

7
What the federal court wrote of the excepted counties in the North Carolina statute is largely true of the counties excepted in §24-23(a)(4)(ii): "While the ... counties are dissimilar among themselves, each has its counterpart in one or more of the [remaining counties] with regard to size, racial composition, and rural or urban character." Clayton, 317 F. Supp. at 921.