Can political party observers inside a NC voting place use a video camera to film voters, or use a cell phone, while they observe?

Plain-English summary

Just before the November 1998 election, Gary Bartlett at the State Board of Elections asked the AG whether political party observers, designated under G.S. § 163-45 to watch a precinct, could carry video cameras and cell phones into the voting enclosure. Senior Deputy AG Ann Reed and Special Deputy AG Susan K. Nichols split the answer.

The video-camera question turned on the words of § 163-45. The statute permitted observers to "make such observation and take such notes as he may desire" but expressly barred them from electioneering, impeding the voting process, or interfering or communicating with or observing any voter "in casting his ballot." The AG read the limits as the operative restriction. Observation and note-taking are passive. Videotaping is active. A camera with a zoom lens recording from within 20 feet of a ballot box would, at minimum, intimidate voters who recognized they were being filmed. It would also threaten the right to vote a secret ballot, because the precinct judges could not realistically detect whether a zoom lens was picking up ballot choices. The two out-of-state cases the AG cited (Preisler v. Calcaterra, Mo. 1951, and In re Parrish, Pa. 1906) underscored that statutory observers have only those rights conferred by statute; if the statute does not grant a power, the observer does not have it.

The AG distinguished press cameras as a separate category. News photographers had never been admitted to the voting enclosure under § 163-153 (which restricts the enclosure to voters, election officials, and observers). News cameras photographing from outside the voting enclosure, with the State Board's longstanding guidance on not crowding voters, served the public interest in a free press and were allowed under the existing protocol. Systematic videotaping by partisan observers inside the enclosure was qualitatively different.

The cell phone question got the opposite answer. The AG saw no categorical statutory bar. A cell phone might disrupt the polling place, or might not. The AG left the call to the precinct chief judge under G.S. § 163-48's general authority to keep the voting place open and unobstructed and to prevent improper practices. A judge could allow discreet cell-phone use by an observer if it was not interfering; the judge could shut it down if it was.

The result was clean: cameras out, phones at the judges' discretion. It also reflected a fundamental principle: a poll observer's job is to watch, not to surveil, and the secret ballot trumps the observer's desire to document.

Currency note

This opinion was issued in 1998. 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. NC election law was substantially reworked in 2013, and the rules governing observers, electronic devices in voting enclosures, and press access have all been updated multiple times since. The principle that a secret ballot may not be compromised remains, but the specific operational rules differ.

Background and statutory framework

Party observers under § 163-45. County political parties could designate up to two observers to attend each voting place. Observers had to serve at least four hours; only two observers from the same party could be in the voting enclosure at a time. The statute described the observer's permissible role narrowly: observation and note-taking. The statute prohibited electioneering, impeding, interfering with, or communicating with or observing any voter "in casting his ballot."

The voting enclosure. Under G.S. § 163-153, the voting enclosure was the area within 20 feet of each voting machine or ballot box. Only voters in the act of voting, elections officials, and duly appointed observers could enter. The enclosure was supposed to be a quiet, structured space designed to protect the secret ballot.

Voting-booth arrangement under § 163-146. Voting booths were placed in plain view of voters and precinct judges, with the booths arranged so that no voter could see another voter marking a ballot. Precinct officials had an affirmative duty not to allow any person to be in any position "that will permit one to see or ascertain how a voter votes on a voting machine except when the voter obtains assistance as provided in this Chapter." A videocamera-with-zoom is, by design, "in a position to see."

Press access protocol. The State Board of Elections had developed a press-access protocol over the years. News media were not in the categories of persons admitted to the voting enclosure (so the press was outside the 20-foot perimeter). The State Board recommended that journalists avoid actions likely to intimidate voters, including blocking doors, using bright lights for more than a few seconds, or keeping a camera trained on a single voter. Interviews with voters were to be conducted at least 50 feet from the entrance, consistent with § 163-147's no-electioneering buffer. The AG affirmed this protocol and used it to distinguish press cameras from observer cameras.

The Preisler / Parrish line on statutory observers. Preisler v. Calcaterra (Mo. 1951) and In re Parrish (Pa. 1906) both held that election observers have only those powers granted by statute. The Parrish court put it baldly: "[t]hese, and no other rights, are conferred on watchers." This was the AG's interpretive lever. If the NC statute did not expressly authorize videotaping (and it did not), then the observer could not videotape, period.

The partisan-versus-impartial distinction. Observers are designated by political parties and serve party interests. Elections officials are charged with running a fair election. The AG emphasized this distinction: an observer is not a neutral monitor and cannot claim broader powers on a fairness theory. The proper avenue for systematic recording would be a neutral election-integrity protocol, not partisan observer activity.

The cell-phone discretion grant. The opinion's restraint on cell phones is notable. The AG could have read "no electioneering" and "no communication with voters" to bar cell-phone use too. Instead, the AG read those prohibitions narrowly to in-person communication with voters and left the rest to administrative discretion. Phone calls outside the voter context were thus a precinct-judge call, not an absolute prohibition.

Common questions

Q: Could a party observer record audio (not video) of conversations in the voting place?

A: The opinion did not directly address audio recording. The same logic that barred video (statutory observers have only enumerated powers; recording exceeds observation and note-taking) would extend, but the AG did not draw the line explicitly.

Q: Could a member of the press film a voter from inside the voting enclosure?

A: No. Press is not in the enclosure under § 163-153. The opinion's press-camera discussion was specifically about photographing from outside the enclosure.

Q: What if a voter consented to being filmed by an observer?

A: The opinion did not address voter consent. The statutory bar applied to observer conduct inside the enclosure, not to voter conduct, so consent might not change the analysis if the underlying observer conduct exceeded statutory authority.

Q: Could the precinct chief judge eject an observer who pulled out a camera?

A: Yes, under G.S. § 163-48's general duty to prevent obstruction and improper practices. The AG's opinion gave the chief judge clear textual cover.

Q: Could an observer photograph empty ballot boxes, voting machines, or signage?

A: The opinion did not directly say. The statutory limits focus on observing voters in the act of voting. A photograph of an empty machine outside voting hours would not implicate the secret-ballot concern but might still exceed the "observe and take notes" authorization.

Q: Did this opinion address modern smartphone-camera devices?

A: The opinion predates ubiquitous smartphone cameras, but its reasoning applies. Any device that records video inside the voting enclosure raises the same § 163-45 and secret-ballot concerns.

Citations from the opinion

• N.C. Gen. Stat. § 163-45 (political party observers)
• N.C. Gen. Stat. § 163-48 (chief judge duty)
• N.C. Gen. Stat. § 163-146 (voting enclosure arrangement)
• N.C. Gen. Stat. § 163-147 (no electioneering)
• N.C. Gen. Stat. § 163-153 (access to voting enclosure)
• Preisler v. Calcaterra, 362 Mo. 662, 243 S.W.2d 62 (1951)
• In re Parrish, 214 Pa. 63, 67, 63 A. 460, 461 (1906)

Source

• Landing page: https://ncdoj.gov/opinions/use-of-video-cameras-and-cellular-telephones-by-political-party-observers-at-voting-places/

Original opinion text

October 22, 1998

Gary O. Bartlett Executive Secretary-Director State Board of Elections VIA HAND DELIVERY

P.O. Box 2169 Raleigh, NC 27602

Re: Advisory Opinion; Use of Video Cameras and Cellular Telephones by Political Party Observers at Voting Places; N.C. Gen. Stat. § 163-45

Dear Mr. Bartlett:

You have asked our opinion whether observers designated by a political party pursuant to N.C. Gen. Stat. § 163-45 may use video cameras and cellular telephones while serving as observers. For reasons which follow, it is our opinion that videotaping of voters by observers is outside their permissible statutory activities and is inconsistent with the right of voters to vote by secret ballot. The discreet use of cellular phones, however, is permissible.

The General Assembly has permitted county political parties "to designate two observers to attend each voting place at each primary and election." N.C. Gen. Stat. § 163-45. The observers must serve for at least four hours, and "[n]ot more that two observers from the same political party shall be permitted in the voting enclosure at any time." Id. With respect to the permissible activity of observers, N.C. Gen. Stat. § 163-45 provides:

An observer shall do no electioneering at the voting place, and he shall in no manner impede the voting process or interfere or communicate with or observe any voter in casting his ballot, but, subject to these restrictions, the chief judge and judges of elections shall permit him to make such observation and take such notes as he may desire.

The clear intent of the statute is to permit observation by persons admitted to the voting enclosure so long as the observation does not impede or interfere with the right of any voter to cast his ballot and do so secretly. A separate statute, N.C. Gen. Stat. § 163-48, places on the chief judge and judges of election the responsibility to "especially keep open and unobstructed the place at which voters or persons seeking to register or vote have access to the place of registration and voting. They shall prevent and stop improper practices and attempts to obstruct, intimidate, or interfere with any person in registering or voting."

The voting enclosure is a demarcated area of the voting place no greater than 20 feet from each voting machine or ballot box. Access to the voting enclosure is strictly limited under N.C. Gen. Stat. § 163-153 to include only persons such as voters in the act of voting, elections officials, and duly appointed observers. The permission given to observers is limited by statute — they may observe and take notes so long as they do not electioneer or otherwise impede or interfere with the voting process. The function of observers by definition is partisan, and they are not charged with the responsibility, as are elections officials, with conducting fair and impartial elections. See Preisler v. Calcaterra, 362 Mo. 662, 243 S.W. 2d 62 (1951); In re Parrish, 214 Pa. 63, 67, 63 A. 460, 461 (1906) ("The rights of watchers at a polling place are prescribed by the act. They have a right to be in the voting room outside the inclosed space while the votes are being cast, and are permitted to keep pollbooks and challenge lists, and to be present during the counting of votes. These, and no other rights, are conferred on watchers . . . .").

The arrangement of the voting enclosure is prescribed by N.C. Gen. Stat. § 163-146, and requires a single entrance to the enclosure not more than three feet wide, and all voting booths and ballot boxes must be placed in plain view of the qualified voters in the voting place and the precinct judges. The booths are to be arranged so that no voter can see a voter in another booth in the act of marking his ballot. Precinct officials shall not permit any person to be situated "in any position that will permit one to see or ascertain how a voter votes on a voting machine except when the voter obtains assistance as provided in this Chapter." Id. Videotaping of voters by persons located in the voting enclosure would interfere with the voter's right to participate in the election because many voters would be intimidated by being videotaped while in the act of voting. In addition, videotaping may interfere with the right to cast a secret ballot because it would be very difficult for precinct judges to monitor whether the voter's right to a secret ballot was being compromised by a video camera with a zoom lens fewer than twenty feet away.

Systematic taping by designated observers in the voting enclosure is significantly different from isolated instances of videotaping conducted by identified members of the news media. Members of the news media are not in the categories of persons admitted to the voting enclosure. In recognition of the public's interest in a free press, members of the news media have been allowed to photograph voters from the voting place but not the voting enclosure. In addition, the State Board of Elections has consistently recommended to the news media that they should avoid actions that might intimidate voters such as blocking doors or passageways with bulky equipment, using bright lights for more than a few seconds, or keeping a camera running or focused on an individual voter for more than a few seconds. The State Board has also requested that interviews with voters be conducted at least 50 feet from the entrance to the voting place, consistent with the prohibition against congregating or electioneering within the voting place set forth in N.C. Gen. Stat. § 163-147.

Thus, it is our opinion that videotaping of voters by observers would be outside their permissible activities under applicable statutes and inconsistent with the constitutional and statutory principles insuring unfettered elections for voters. We do not, however, see the same legal concerns with the use of cellular telephones. Conversations conducted over cellular telephones while in the voting enclosure could impede or interfere with the election process, but may not. Thus, we believe the use of cellular telephones in the voting enclosure is a matter best entrusted to the administrative discretion of elections officials to be exercised consistently with the principles discussed herein.

signed by:

Susan K. Nichols, Special Deputy Attorney General

Ann Reed, Senior Deputy Attorney General