What does Virginia law say about voter intimidation and people carrying guns at polling places?

Plain-English summary

Three weeks before the 2020 presidential election, with early voting underway and credible reports of intimidating activity near polling places, Delegate Marcus Simon asked the AG to lay out the existing legal protections. The opinion catalogs them across three areas:

Voter intimidation as a stand-alone crime. Section 24.2-607(A) makes it a Class 1 misdemeanor to "hinder, intimidate, or interfere with any qualified voter so as to prevent the voter from casting a secret ballot." Section 24.2-1005 makes it a Class 1 misdemeanor to use threats, bribery, or other means to attempt to influence voting or to deter someone from voting. Section 24.2-1015 elevates that to a Class 5 felony for any conspiracy to "injure, oppress, threaten, intimidate, prevent, or hinder" any Virginia citizen in the exercise of election rights. Section 24.2-604(A) prohibits hindering or delaying voters entering or leaving a polling place. Federal law (18 U.S.C. § 594) adds a separate prohibition on intimidation, threats, or coercion to interfere with the right to vote in a federal election.

Polling-place perimeter rules. No one may conduct themselves in a noisy or riotous manner so as to disturb the election (§ 24.2-607(B)). While polls are open, it is unlawful to loiter, congregate, display campaign material, or attempt to influence voters within 40 feet of the entrance (§ 24.2-604(A)). Using a loudspeaker within 300 feet of a polling place on election day is unlawful (§ 24.2-605). Officers of election can, with the consent of the chief law-enforcement officer, designate a law-enforcement officer to preserve order at the polling place (§ 24.2-606).

Firearms and impersonation of police. Brandishing a firearm "in such manner as to reasonably induce fear in the mind of another" is a Class 1 misdemeanor (§ 18.2-282(A); felony on school property within 1,000 feet). Virginia also separately bans firearms in schools (§ 18.2-308.1) and courthouses (§ 18.2-283.1), which are often used as polling places. Localities may adopt firearms-ordinance restrictions in certain public areas under § 15.2-915, and Arlington County and Richmond City have done so. Falsely assuming the functions, powers, duties, and privileges incident to a peace officer is a Class 1 misdemeanor under § 18.2-174. A 2019 AG opinion concluded that a group of "private militia members coming as a unit, heavily armed with assault-style weapons, dressed in fatigues and other military accessories, and acting in a coordinated fashion" while patrolling lines of citizens can violate § 18.2-174.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

The right to vote is described by the U.S. Supreme Court in Yick Wo v. Hopkins, 118 U.S. 356 (1886), as "a fundamental political right," and the Virginia Supreme Court echoed that language in Etheridge v. Med. Ctr. Hosps., 237 Va. 87 (1989). Reynolds v. Sims, 377 U.S. 533 (1964), and Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966), describe voting as the foundational right that preserves other civil and political rights.

Virginia's statutory framework reflects multiple overlapping protections. The Title 24.2 election-law provisions criminalize specific election-day conduct (intimidation, perimeter violations, noisy disruption). Title 18.2 covers conduct that is criminal regardless of context but bears on polls (brandishing, impersonating police, firearms in schools or courthouses). Local ordinances under § 15.2-915 can add firearms restrictions in specific public spaces.

The 2019 AG opinion (Op. 81 at 84, Aug. 16, 2019) about armed militia activity gives the impersonation analysis some real teeth. A coordinated group of heavily armed civilians dressed in tactical gear who function as crowd-management at a public event project the indicia of police authority and can be prosecuted under § 18.2-174 for falsely assuming peace-officer functions. The opinion ties that prior framework directly to election-day situations.

Officers of election have a discrete authority to call in law enforcement under § 24.2-606. The default is that elections are open to peaceful observation by voters, candidates, authorized poll watchers, and journalists. When that calm breaks down, the officer of election (in coordination with the locality's chief law-enforcement officer) can designate an officer to preserve order.

Common questions

Q: I see someone with a gun standing right outside the polling place. Is that legal?
A: It depends on conduct, location, and local rules. Open carry of a long gun is not, by itself, automatically illegal in Virginia (subject to local ordinances). But brandishing in a way that reasonably induces fear is a crime under § 18.2-282. Schools and courthouses are firearms-restricted, and many polling places are in those locations. Some localities (Arlington, Richmond) have local-ordinance restrictions. Tell a poll worker, call 911, document what you can.

Q: A group in tactical gear is "monitoring" voters arriving. They say they're not police but they're directing traffic and questioning people. Is that legal?
A: Per the 2019 AG opinion cited here, that pattern can violate § 18.2-174 (false assumption of peace-officer functions). Report to election officials and law enforcement.

Q: Someone keeps trying to talk to voters in line about a candidate. What's the rule?
A: Section 24.2-604(A) prohibits, within 40 feet of any entrance to a polling place while polls are open, loitering, congregating, exhibiting campaign material, or attempting to influence anyone in casting their vote. That is enforceable on election day.

Q: Can someone use a bullhorn near my polling place?
A: Section 24.2-605 makes it unlawful to use a loudspeaker within 300 feet of a polling place on election day.

Q: What if the conduct is more subtle, dirty looks, photographing voters, asking for ID outside the official process?
A: Section 24.2-607(A) reaches "intimidat[ing] or interfer[ing] with any qualified voter so as to prevent the voter from casting a secret ballot." Federal law (18 U.S.C. § 594) is similar. Whether specific conduct crosses the line is fact-dependent, but courts read voter-intimidation laws broadly to include nonviolent coercion.

Q: Who do I call if I see voter intimidation?
A: Call your local election officials at the polling place. Call 911 if the conduct is criminal in nature. The Virginia Attorney General's Election Integrity Unit and the U.S. Department of Justice's voting-rights hotline are additional points of contact. Document what you see.

Citations and references

Virginia statutes:
- Va. Code § 15.2-915 (Local firearms ordinances)
- Va. Code § 18.2-174 (False assumption of police functions)
- Va. Code § 18.2-282 (Brandishing)
- Va. Code § 18.2-283.1 (Firearms in courthouses)
- Va. Code § 18.2-308.1 (Firearms on school property)
- Va. Code § 24.2-604 (Loitering at polls)
- Va. Code § 24.2-605 (Loudspeakers)
- Va. Code § 24.2-606 (Officers of election; police)
- Va. Code § 24.2-607 (Voter intimidation; noisy conduct)
- Va. Code § 24.2-1005 (Threats and bribery)
- Va. Code § 24.2-1015 (Conspiracy)

Federal:
- 18 U.S.C. § 594 (Federal voter intimidation)

Cases:
- Yick Wo v. Hopkins, 118 U.S. 356 (1886) (U.S. Supreme Court)
- Reynolds v. Sims, 377 U.S. 533 (1964) (U.S. Supreme Court)
- Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (U.S. Supreme Court)
- Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 376 S.E.2d 525 (1989) (Virginia Supreme Court)

Prior AG opinions:
- 2019 Op. Va. Att'y Gen. 81 (Aug. 16, 2019) (armed militia activity and § 18.2-174)

Local ordinances referenced:
- Arlington County Code ch. 13, art. II, § 13-14
- Richmond, Va., Ordinance No. 2020-184 (amending City Code § 19-334.1)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/Simon-20-046-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 24, 2020

The Honorable Marcus B. Simon
Member, Virginia House of Delegates
Post Office Box 958
Falls Church, Virginia 22040

Dear Delegate Simon:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You explain that, with the start of in-person early voting in Virginia for the 2020 November election, there have been reports of activity near polling places that led some voters to fear for their safety while waiting to cast their vote, or led them to believe that they would be harmed for supporting a particular candidate. You have asked what, if any, protections state and federal law may provide against voter intimidation at a polling place.

Applicable Law and Discussion

In our democratic system of governance, the right to vote is "a fundamental political right."[1] Voting both ensures "a representative form of government" and also "preserv[es] ... other basic civil and political rights."[2] "[T]he right to exercise the franchise in a free and unimpaired manner" is therefore a "bedrock" principle in any "free and democratic society."[3] Intimidation of citizens who are seeking to vote is both illegal and antithetical to one of the basic promises that binds us together: that of democratic self-governance.

1. Intimidating a voter in Virginia is a criminal offense.

Both state and federal law include provisions designed to ensure that voters may cast their votes free from interference or harassment. The Code of Virginia, for example, expressly prohibits voter intimidation. Section 24.2-607(A) makes it unlawful "for any person to hinder, intimidate, or interfere with any qualified voter so as to prevent the voter from casting a secret ballot."[4] Violations of that provision are punishable as a Class 1 misdemeanor.[5] Section 24.2-1005 separately makes it a Class 1 misdemeanor to use "threats, bribery, or other means in violation of the election laws" to "attempt[] to influence any person in giving his vote or ballot or ... deter him from voting."[6] And under § 24.2-1015, it is a Class 5 felony to "conspire to injure, oppress, threaten, intimidate, prevent, or hinder any citizen of this Commonwealth in the free exercise or enjoyment of any right or privilege secured to him by the provisions of [the election laws]."[7] Finally, while polls are open, no person may "hinder or delay a qualified voter in entering or leaving a polling place."[8]

Federal criminal law similarly provides that any person who "intimidates, threatens, [or] coerces" another person "for the purpose of interfering with the right of such other person to vote or to vote as he may choose" in a federal election, or "attempts" to do the same, may be fined and/or imprisoned for up to one year.[9]

The Code of Virginia also prohibits certain conduct at polling places that might interfere with the right to vote free from influence. First, "[n]o person shall conduct himself in a noisy or riotous manner at or about the polls so as to disturb the election ...."[10] In addition, while polls are open, it is unlawful to "loiter or congregate," "give, tender, or exhibit any ... campaign material," or "solicit or in any manner attempt to influence any person in casting his vote" within 40 feet of "any entrance of any polling place."[11] It is also unlawful to "use[]" a "loudspeaker ... within 300 feet of a polling place on an election day."[12] Should they so choose, officers of election, with the consent of the locality's chief law-enforcement officer, are empowered to "designate a law-enforcement officer" to "preserve order inside and outside at the polling place."[13]

2. Virginia and federal law provide that voters shall not be harassed for exercising their rights.

Voters similarly should not fear for their safety when voting, whether they are within the forty-foot zone of a polling place or in socially-distanced lines beyond that zone. Both state and local law protect citizens from violent threats, and in particular from being threatened with firearms. It is a criminal offense in Virginia "to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured."[14] Virginia law also prohibits carrying or possessing firearms or weapons at specific locations that may be used as polling places, such as schools and courthouses.[15] A number of Virginia localities, including Arlington County and Richmond City, have enacted ordinances that restrict individuals from carrying firearms around certain public areas that may also serve as polling locations.[16]

Finally, it is a criminal offense for private individuals to usurp the role of actual law enforcement, and it is accordingly unlawful to appear at the polls attempting to exercise roles that rightfully belong to law enforcement. Virginia law makes it a Class 1 misdemeanor to "falsely assume[] or exercise[] the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or any local, city, county, state, or federal law-enforcement officer."[17] This criminal prohibition can apply to "a group of private militia members coming as a unit, heavily armed with assault-style weapons, dressed in fatigues and other military accessories, and acting in a coordinated fashion" where the "militia members patrol[] a line of citizens" and "project[] authority to manage the crowd."[18]

These types of protection have an important history in our law. They have helped vindicate racial equality in voting, ensure the constitutional guarantee of equal protection of the laws, and invoke the basic respect that is due every voter at the polls.

Conclusion

The legitimacy of our government, and its success in fulfilling the promises of our Constitution, rely on the notion of uncoerced choice. Virginia and federal law protect the fundamental right to vote freely. Accordingly, it is my opinion that the conduct you describe could violate state and/or federal law if it threatens or intimidates voters casting their ballots at polling places.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); see also Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 98, 376 S.E.2d 525, 530 (1989) (noting that "the right to vote" has "been recognized as fundamental").

2. Reynolds v. Sims, 377 U.S. 533, 562 (1964).

3. Id.; see also Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966) (describing "the right to vote" as "precious" and "fundamental").

4. Va. Code Ann. § 24.2-607(A) (This and all other citations to the Code of Virginia are from the electronic version of the Code on LexisNexis and are current through the 2020 Regular Session, and 2020 Special Session I, c. 1, of the General Assembly.).

5. Id.

6. Id. § 24.2-1005.

7. Id. § 24.2-1015.

8. Id. § 24.2-604(A).

9. 18 U.S.C. § 594 (LexisNexis, current through Public Law 116-158, approved Aug. 14, 2020).

10. Va. Code Ann. § 24.2-607(B).

11. Id. § 24.2-604(A).

12. Id. § 24.2-605.

13. Id. § 24.2-606.

14. Id. § 18.2-282(A). A violation of this section is punishable as a Class 1 misdemeanor, unless it occurs "upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property," in which case a violation is punishable as a Class 6 felony. Id.

15. See Va. Code Ann. § 18.2-308.1 (prohibiting possession of firearms and certain other weapons on "property of any ... public, private, or religious preschool, elementary, middle, or high school, including buildings and grounds"); id. § 18.2-283.1 (prohibiting possession of firearms and certain other weapons in courthouses).

16. See County of Arlington, Va., Code ch. 13, art. II, § 13-14 (2020); City of Richmond, Va., Ordinance No. 2020-184 (Sept. 8, 2020) (amending City Code § 19-334.1); see also generally Va. Code Ann. § 15.2-915 (authorizing localities to adopt ordinances prohibiting possession of firearms in certain public areas).

17. Va. Code Ann. § 18.2-174.

18. 2019 Op. Va. Att'y Gen. 81, 84 (Aug. 16, 2019).