Can a government building hosting a polling place ban campaigning outside on its own property?

Plain-English summary

A member of the House of Delegates asked the Attorney General two questions about electioneering near polling places: whether a government entity that owns a facility used as a polling place could bar electioneering on its own property, and whether the Election Code's 100-foot electioneering-free zone was measured from the building's front entrance or from the interior polling room itself.

The Attorney General applied the U.S. Supreme Court's "forum analysis" framework for speech on government property. A governmental entity could not prohibit electioneering in a "traditional public forum" near the facility, like a park or public sidewalk, nor in any part of the facility the entity had itself designated as open to public discourse. But the entity could restrict electioneering elsewhere on its property, in areas that were neither traditionally nor intentionally open to public expression, as long as the restriction was reasonable. On the second question, the opinion concluded that the statutory 100-foot line is measured from the building entrance and exit nearest the polling room, not from the polling room's own location inside the building.

Currency note

This opinion was issued in 1996. 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 mentioned here, particularly since Article 33 of the Maryland Code discussed below has since been recodified into the Election Law Article.

Common questions

Can a public library or school ban campaigning outside its doors on election day?
Not entirely, according to the opinion. If the facility sits on a public street, the government cannot forbid electioneering on the public sidewalk outside the statutory 100-foot line, because a sidewalk is a traditional public forum entitled to strong First Amendment protection.

Can a government building restrict campaigning inside its own hallways?
It depends, the opinion concluded. If the facility has an interior space that the government has generally opened up for the public to distribute literature or otherwise speak, it cannot bar electioneering there either. But in other areas that are not dedicated to public expression, the entity can reasonably restrict electioneering, for example if it would disrupt the facility's regular business.

Where does the 100-foot no-electioneering line start?
The opinion concluded it starts at the building entrance and exit closest to where voting actually takes place, not at the door of the polling room itself, with election judges posting signs to mark the roughly 100-foot perimeter.

Is a 100-foot electioneering buffer around a polling place constitutional?
Yes. The opinion cited Burson v. Freeman as establishing that a 100-foot electioneering limit is constitutional, even though it restricts political speech, because of the government's compelling interest in protecting voters from interference and intimidation at the polls.

Background and statutory framework

The opinion applied the U.S. Supreme Court's three-part "forum analysis" for evaluating First Amendment restrictions on government property. A "traditional public forum," the "quintessential" examples being streets and parks, receives the strictest protection, and government efforts to bar speech there are rarely upheld, though reasonable time, place, and manner restrictions are permitted. A "designated public forum" is government property not traditionally open to expression but that the government has intentionally opened for public discourse, such as university meeting facilities, and it receives the same strong protection as a traditional public forum. A "nonpublic forum" is property not opened for public communication by tradition or designation, where the government need only act reasonably to restrict speech.

Applying this framework to a facility hosting a polling place, the opinion reasoned that a public sidewalk outside the building remains a traditional public forum regardless of the polling place inside, so electioneering there cannot be barred beyond the statutory 100-foot line. An interior space the facility had generally opened to advocacy groups would likewise be a designated public forum where electioneering could not be barred. But other interior or exterior areas not so opened remain a nonpublic forum, where the facility could reasonably restrict electioneering, for instance if it disrupted the facility's regular business. On the separate question of exactly where the 100-foot buffer starts, the opinion read Article 33, §24-23(a)(4)(i) as tying the line to "the entrance and exit to the building closest to that part of the building in which voting occurs," meaning the building's outer entrance nearest the polling room, not the polling room's own doorway, with election judges posting signs to mark that perimeter after considering the building's layout and effects on public safety and traffic flow.

Citations and references

Statutes:
- Article 33, §24-23(a)(4), criminalizing electioneering inside a polling place or beyond the posted line
- Article 33, §24-23(a)(4)(i), the procedure for posting signs marking the roughly 100-foot electioneering line from the building entrance nearest the polling room
- Article 33, §24-23(a)(4)(ii), the since-repealed 300-foot electioneering zone that applied in seven counties
- Article 33, §24-23(b), setting the penalty for illegal electioneering

Cases and prior opinions:
- Eu v. San Francisco Cty. Dem. Central Comm, 489 U.S. 214, 223 (1989), on electioneering as political speech entitled to the greatest First Amendment protection
- United States v. Kokinda, 497 U.S. 720 (1990), holding that public ownership of land does not itself create a right to engage in expressive activity there
- Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985), establishing the forum-analysis framework for government property
- Perry Educational Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983), describing streets and parks as the "quintessential public forums"
- Widmar v. Vincent, 454 U.S. 263 (1981), an example of a designated public forum (university meeting facilities)
- City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), an example of a nonpublic forum (municipal street light posts)
- United States v. Grace, 461 U.S. 171, 179 (1983), holding a public sidewalk is a traditional public forum
- Burson v. Freeman, 504 U.S. 191, 197 and 211 (1992), upholding the constitutionality of a 100-foot electioneering limit and the standard for time, place, and manner restrictions in a public forum
- 77 Opinions of the Attorney General 62 (1992), concluding the 300-foot electioneering zone in certain counties was unconstitutional

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/1996/81oag37.pdf

Original opinion text

ELECTIONS

CONSTITUTIONAL LAW - FREEDOM OF SPEECH - POLITICAL SPEECH - PROHIBITION OF ELECTIONEERING NEAR A POLLING PLACE

September 18, 1996

The Honorable Michael W. Burns
House of Delegates

You have requested our opinion on two issues related to electioneering in the vicinity of polling places:

1. If a public facility is used as a polling place, may the governmental entity that owns the facility prohibit electioneering on the property?

2. Under the Election Code provision barring electioneering within 100 feet of a polling place, how is the distance measured - from the front door of the building or from the interior location of the polling room itself?

Our opinion is as follows:

1. The governmental entity that controls public property used for a polling place may not prohibit electioneering in any traditional public forum (typically, a park or public sidewalk) in the vicinity of the facility. Nor may the entity prohibit electioneering in any public forum within the facility that has been designated as such by the entity. The entity may prohibit electioneering elsewhere on its property if it has a reasonable basis for doing so.

2. Electioneering is prohibited inside the perimeter of a 100-foot line established by reference to the entry to the building nearest the polling place.[1]

I

Electioneering on Government Property

Electioneering - urging people to vote for one's favored candidate - is a form of political speech entitled to the greatest degree of First Amendment protection. Eu v. San Francisco Cty. Dem. Central Comm, 489 U.S. 214, 223 (1989). Nevertheless, electioneering, like other First Amendment activity, need not be allowed anywhere on government property. In other words, the mere fact that land is public property does not give members of the public a right to carry out their First Amendment activities there. United States v. Kokinda, 497 U.S. 720 (1990).

In considering First Amendment activity on publicly owned property, the Supreme Court has adopted a "forum analysis" as a method of deciding "when the Government's interest in limiting the use of its property outweighs the interest of those wishing to use the property for other purposes. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). This "forum analysis" comprises three categories.

The first is "traditional public forums," a type of "governmental property that has traditionally been open to the public for expressive activity ...." Kokinda, 497 U.S. at 726. The "quintessential public forums" are streets and parks. Perry Educational Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). In a traditional public forum, government efforts to bar First Amendment are subject to strict judicial scrutiny and will rarely be upheld. Id.[2]

The second type of forum is government property not traditionally open to expressive activity but "intentionally open[ed] ... for public discourse." Cornelius, 473 U.S. at 802. An example is meeting facilities at a university. Widmar v. Vincent, 454 U.S. 263 (1981). A "designated public forum" is subject to the same strict constitutional rules as a traditional public forum. Perry, 460 U.S. at 46.

The third type of forum is "[p]ublic property that is not by tradition or designation a forum for public communication ...." Id. The government may operate property that is limited to a specific governmental purpose, even if the property has the capacity to be used for expressive purposes. An example is a municipality's street light posts. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). A government prohibition of speech in a nonpublic forum need only be reasonable to be sustained. Kokinda, 497 U.S. at 727.

This "forum analysis" applies when the First Amendment activity in question is electioneering. Suppose, for example, that a room in a public library is used as a polling place. If the library were situated on a public street, the government may not forbid electioneering on the sidewalk outside the 100-foot limit established by statute.[3] A public sidewalk is a traditional public forum. See, e.g., United States v. Grace, 461 U.S. 171, 179 (1983). Further, suppose that the library had an interior space (outside the 100-foot limit) in which advocacy groups had been generally permitted to distribute literature. Then, the library could not prohibit electioneering in that dedicated public forum. But the library could refuse to permit electioneering elsewhere on its property, assuming that the electioneering was disruptive of the library's regular business, because the other areas of the library are a nonpublic forum. Such a prohibition would be reasonable, and therefore constitutional. Kokinda, 497 U.S. at 733-34.

II

Drawing the 100-Foot Line

Illegal electioneering is a crime. A person may not "canvass, electioneer or post any campaign material in the polling place or beyond a line established by signs posted in accordance with this paragraph." Article 33, §24-23(a)(4).[4]

The procedure for defining the line is as follows:

At each polling place, two election judges, one from each principal political party, shall be designated by the election board, and acting jointly, shall post signs outlining a line around the entrance and exit to 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 and shall be established after consideration of the configuration of the entrance and the effect of placement on public safety and the flow of pedestrian and vehicular traffic. Signs shall contain the following or comparable language: "No Electioneering Beyond this Point."

§24-23(a)(4)(i).[5] Thus, the entrance nearest the polling room becomes the point from which a radius of 100 feet is drawn. The resulting circle marks the zone of prohibited electioneering.

III

Conclusion

In summary, our opinion is as follows:

1. The governmental entity that controls public property used for a polling place may not prohibit electioneering in any traditional public forum (for example, a park or public sidewalk) in the vicinity of the facility. Nor may the entity prohibit electioneering in any public forum within the facility that has been designated as such by the entity. The entity may prohibit electioneering elsewhere on its property if it has a reasonable basis for doing so.

2. Electioneering is prohibited inside the perimeter of a 100 foot line established by reference to the entry to the building nearest the polling place.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

[1] In an advice letter to you dated August 5, 1996, Assistant Attorney General Mary O. Lunden addressed these questions. This opinion elaborates somewhat upon Ms. Lunden's response to your first question and confirms her response to the second.

[2] Even in traditional public forums, "the government may regulate the time, place, and manner of the expressive activity, so long as such restrictions are content neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternatives for communication." Burson v. Freeman, 504 U.S. 191, 197 (1992).

[3] A 100-foot electioneering limit is constitutional. Burson, 504 U.S. at 211.

[4] The penalty for a violation is imprisonment for up to 60 days, a fine of between $50 and $500, or both. Article 33, §24-23(b).

[5] Under current law, in seven counties the Election Code prohibits electioneering "within a 300 foot radius from the entrance and exit of the building closest to that part of the building in which voting occurs." Article 33, §24-23(a)(4)(ii). This provision will be repealed on October 1, 1996. See Chapter 33 of the Laws of Maryland 1996. See also 77 Opinions of the Attorney General 62 (1992) (concluding that §24-23(a)(4)(ii) is unconstitutional).