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

Gary O. Bartlett of the State Board of Elections asked whether political party observers could use video cameras and cellular telephones while serving as observers. The AG answered that videotaping voters by observers was outside their permissible activities, while discreet cellular-phone use was permissible.

Why videotaping was outside the observer's role. N.C. Gen. Stat. § 163-45 allowed observers to “make such observation and take such notes as he may desire,” subject to limits against electioneering, impeding voting, and interfering or communicating with or observing a voter in casting a ballot. The opinion concluded that videotaping voters from inside the voting enclosure would intimidate many voters. It also said a zoom lens fewer than 20 feet away could compromise the secret ballot without precinct judges being able to monitor it effectively.

Why the news media were treated differently. The opinion distinguished systematic taping by designated party observers inside the enclosure from isolated videotaping by identified members of the news media. It says news-media members were not among those admitted to the enclosure, but had been allowed to photograph voters from the voting place outside it. The State Board had recommended that the press avoid obstructing or intimidating voters and conduct interviews at least 50 feet from the entrance.

Why the phone answer differed. The AG saw no comparable legal concern with cellular telephones as a category. Conversations in the voting enclosure could impede an election, but might not. The opinion left phone use there to election officials' administrative discretion under the principles it described.

Currency note

This opinion was issued in 1998. Verify the election law and polling-place rules now in force before relying on its conclusions for a present-day election.

What this means for you

Political party observers

The opinion treats observing and taking notes as the authorized activities under § 163-45. It concluded that videotaping voters went beyond those activities. It permitted discreet cellular-phone use, subject to election officials' discretion within the enclosure.

Precinct election officials

The opinion points to § 163-48's duty to keep access to the voting place open and to stop practices that obstruct, intimidate, or interfere with voters. It leaves decisions about cellular-phone use in the voting enclosure to election officials. It does not decide what specific remedy officials should use if an observer videotapes voters.

News media

The opinion says identified news-media members may photograph voters from the voting place outside the enclosure. It recounts the State Board's recommendations against blocking passageways, prolonged bright lights, or keeping a camera trained on one voter, and its request that voter interviews occur at least 50 feet from the entrance.

Common questions

Q: May a party observer videotape voters inside the voting enclosure?
A: No. The AG concluded that videotaping voters was outside the observer's statutory activities and inconsistent with voting free from intimidation and with a secret ballot.

Q: May a party observer use a cellular phone there?
A: Discreet use was permissible in the AG's view. Election officials had administrative discretion because a conversation might impede the election process, depending on its use.

Q: Does the opinion give news photographers the same access as party observers?
A: No. The opinion says news-media members were not among those admitted to the voting enclosure. It distinguishes photographs taken from the voting place outside that enclosure.

Q: Does the opinion decide whether a chief judge can eject an observer for videotaping?
A: No. It decides that videotaping voters is outside the observer's permissible activities but does not address ejection or another remedy.

Q: Does it decide audio recording, voter consent, or photographing an empty voting machine?
A: No. Bartlett asked about video cameras and cellular telephones used by political party observers. The opinion's camera conclusion concerns videotaping voters.

Background and statutory framework

The opinion quotes § 163-45's limits on political party observers: they may observe and take notes but may not electioneer, impede voting, or interfere or communicate with or observe a voter while the voter casts a ballot. It quotes § 163-48's instruction to election officials to prevent practices that obstruct, intimidate, or interfere with voters.

It describes the voting enclosure as an area no greater than 20 feet from each voting machine or ballot box, with access limited under § 163-153. It also quotes § 163-146's rule that precinct officials must not allow someone to occupy a position from which that person could ascertain how a voter votes on a voting machine. The opinion cites Preisler v. Calcaterra and quotes In re Parrish for the limited rights of watchers at a polling place.

Citations from the opinion

• N.C. Gen. Stat. § 163-45 (party observers)
• N.C. Gen. Stat. § 163-48 (duties of election officials)
• N.C. Gen. Stat. § 163-146 (voting-enclosure arrangement)
• N.C. Gen. Stat. § 163-147 (conduct near the voting place)
• N.C. Gen. Stat. § 163-153 (access to the 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