If I'm a poll volunteer or campaigner in Virginia, where exactly can I stand and what can I say to voters at a polling place, including voters in cars or buses?

Plain-English summary

Senator Mark Obenshain asked how Virginia voter protection laws apply to candidates and campaign representatives near polling places. His questions included contact with voters outside the 40-foot prohibited area, access to buses or vans bringing voters to the polls, and interaction with people awaiting curbside voting assistance.

Attorney General Jason Miyares explained that Virginia restricts campaign activity within 40 feet of a polling place entrance. Outside that area, the law does not automatically bar a candidate or campaign representative from initiating contact or offering materials. The opinion says a simple greeting or offer of materials outside the prohibited area would not itself violate Virginia law.

Other rules still apply. The opinion quotes a statewide prohibition on hindering, intimidating, or interfering with a qualified voter so as to prevent the voter from casting a secret ballot. It also notes rules against noisy or riotous conduct and voter intimidation. Whether particular words or conduct violate these rules depends on facts such as proximity, tone, bearing, and volume.

On buses and vans, the AG says he knows of no law affirmatively giving campaigners a right to board vehicles to speak with voters. The First Amendment does not give a third-party speaker a special right of access to private vehicles used for private purposes. The opinion also finds no requirement that election officers grant campaigners time to engage nonconsenting voters awaiting assistance. It does not say that boarding a vehicle is itself a violation of the cited voter-interference statute.

What this means for you

If you campaign near a polling place

The opinion distinguishes the 40-foot prohibited area from the surrounding property. It says contact and distribution of campaign materials outside that area are not automatically forbidden. Your actual conduct still matters: hindering, intimidating, or interfering with a voter so as to prevent a secret ballot can violate Virginia law even outside the marked area.

The opinion does not give you a right to enter a bus or van bringing voters to the polls. Permission and access to a private vehicle are separate from whether the voter protection statutes prohibit your conduct.

If you are an election officer or registrar

The opinion says officers are instructed to keep the curbside voting area and official signage unblocked while designating an area where curbside voters can obtain campaign information. It identifies no duty to delay assistance so a campaigner can speak with a nonconsenting voter. It does not describe an officer power to order a campaigner away or make an arrest under the voter-interference provision.

If you vote curbside or arrive with a group

The opinion says voter protection rules cover your ability to cast a secret ballot, including when you seek assistance outside the polling place. It does not give campaigners a right to board the vehicle in which you arrive or require an officer to facilitate contact you do not consent to.

Common questions

Q: Can a campaigner offer materials outside the 40-foot area?

A: The opinion says a simple greeting or offer of materials outside the prohibited area would not itself violate Virginia law. Whether other conduct becomes hindering or intimidation depends on the facts.

Q: Does the opinion prohibit boarding buses or vans that bring voters to the polls?

A: It does not decide that boarding is prohibited. It says no law affirmatively grants campaigners a right to board such vehicles, and the First Amendment supplies no special access right to private vehicles used for private purposes.

Q: Must an election officer give a campaigner time with a curbside voter?

A: The opinion identifies no requirement to give time for contact with a nonconsenting voter awaiting assistance. It says officials must keep the curbside voting area unblocked.

Q: Does the opinion authorize an officer to order removal or arrest?

A: It does not address those specific powers. Whether particular conduct violates a voter protection law is a fact-specific question beyond the scope of the opinion.

Q: Can a simple greeting be a violation?

A: The AG says a simple greeting or offer of materials outside the prohibited area would not be sufficient. He cautions that words, proximity, tone, bearing, and volume can matter in a particular encounter.

Background and statutory framework

Virginia law restricts certain conduct within 40 feet of any entrance to a polling place. The opinion describes the marked prohibited area and its limits on campaign materials, attempts to influence voters, loitering, and other conduct.

A separate rule makes it a misdemeanor to hinder, intimidate, or interfere with a qualified voter so as to prevent a secret ballot. That restriction is not confined to the 40-foot area. The opinion also notes other voter protection laws that may apply to conduct near the polls and in curbside voting areas.

The AG concludes that properly tailored voter protection laws generally do not violate the First Amendment, but whether a particular encounter violates Virginia law, and whether a particular enforcement measure violates a speaker's rights, require fact-specific analysis.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2024/24-024-Obenshain-issued.pdf

Original opinion text

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

COMMONWEALTH OF VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

December 13, 2024

The Honorable Mark D. Obenshain
Member, Senate of Virginia
Post Office Box 555
Harrisonburg, Virginia 22803

Dear Senator Obenshain:

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

Issues Presented

You seek guidance from this Office to "resolve [issues] relate[d] to First Amendment rights of volunteers at the polls and what if any form of verbal interaction is . . . prohibited by Virginia Code § 24.2-607." You more specifically inquire whether candidates and campaign representatives are prohibited from initiating contact with voters beyond 40 feet of a polling place to "offer a sample ballot, voting information, campaign literature, petitions for signature, or to offer signs and materials for sale or donation." You also ask whether these individuals may board or engage with buses or vans used by retirement communities to transport residents to the polls; you are especially concerned with occupants of the vehicles who will be voting curbside and further inquire whether an election officer should allow a candidate or campaign representative "time for free speech exercise" before that officer assists the voter.

Applicable Law and Discussion

In America, "[t]he right to vote is fundamental." Indeed, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Thus, although "political speech is at the core of the protections offered by the First Amendment," the U.S. Supreme Court has "held that 'some restricted zone [for political speech] is necessary in order to serve the States' compelling interests in preventing voter intimidation and election fraud.'" In furtherance of these interests, Virginia has enacted several statutes to protect citizens as they actively seek to exercise their right to vote, a right that encompasses "the right to cast a ballot in an election free from the taint of intimidation and fraud."

Among these statutes is Code § 24.2-604, which imposes certain restrictions "within 40 feet of any entrance of any polling place[.]" A "polling place" is the structure that contains "the one place provided for each precinct at which the qualified voters who are residents of the precinct may vote[,]" and the "entrance" thereto refers to "an opening in the wall used for ingress to [such] structure." Election officers must mark the 40-foot area as a "Prohibited Area," which is to be in effect while the "polls are open and ballots are being counted, or within one hour of opening or after closing." Per § 24.2-604, no one within the prescribed "Prohibited Area" may possess a firearm, loiter, congregate, or "give, tender, or exhibit any ballot, ticket, or other campaign material to any person or [] solicit or in any manner attempt to influence any person in casting his vote[.]" The statute also makes it unlawful "to hinder or delay a qualified voter in entering or leaving a polling place[.]" In addition, § 24.2-1006 establishes that "no person shall directly or indirectly advise or assist any voter as to how he shall cast his ballot after the voter has entered the prohibited area at the polls . . . ." A violation of these statutes constitutes a Class 1 misdemeanor. The imposition of such restrictions within the 40-foot prohibited area does not run afoul of the First Amendment.

Your inquiry, however, involves conduct you describe as occurring outside of a prohibited area and focuses on application of § 24.2-607(A). 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." Unlike those found in §§ 24.2-604 and 24.2-1006, the restrictions contained in § 24.2-607(A) are not limited to the 40-foot prohibited area.

The plain language of § 24.2-607(A) does not establish any per se prohibition on a candidate or campaign representative initiating contact or engaging with a voter outside the 40-foot prohibited area for the purposes you describe. Rather, it remains "permissible to distribute campaign materials . . . on the property on which a polling place is located and outside of the building containing the room where the election is conducted except as specifically prohibited by law including, without limitation, the prohibitions of § 24.2-604 and the establishment of the 'Prohibited Area' within 40 feet of any entrance to the polling place." Nevertheless, § 24.2-607(A) speaks not only to conduct affecting a voter's ability to cast his vote generally, but also more specifically to his ability to cast it in secret. The statute's safeguards thus clearly apply to those who seek assistance in voting outside of the polling place, for "[t]he only way to preserve the secrecy of the ballot is to limit access to the area around the voter."

Conduct not prohibited under § 24.2-607(A), however, may otherwise be unlawful. Accordingly, § 24.2-607(A) is not to be read in isolation, and other provisions of law apply to the scenarios you present. Section 24.2-607(B) further directs that "[n]o person shall conduct himself in a noisy or riotous manner at or about the polls so as to disturb the election" and other law provides that "[a]ny person who intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any other person in giving his vote or ballot . . . is guilty of a Class 1 misdemeanor." These provisions are not limited to the prohibited area and apply to areas designated for curbside voting.

I am aware of no law that affirmatively affords campaigners the right to board vehicles to speak to voters or that requires election officers to grant time to others to engage with nonconsenting voters awaiting assistance to vote. While election officers are instructed to designate an area where curbside voters can "obtain information from candidates and others campaigning outside the polling place[,]" election officials also are directed to "[e]nsure that no campaign materials or campaign personnel are blocking the curbside voting area or [official] signage."

The First Amendment does not require otherwise. Vehicles transporting voters are private property used for private purposes, and the protections of the First Amendment do not confer third party speakers special rights of access in this context. Because "expressive activity, even in a quintessential public forum, may interfere with other important activities for which the property is used," the U.S. Supreme Court recognizes that "[e]ven protected speech is not equally permissible in all places and at all times." Indeed, "[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." Accordingly, "[t]he State may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most."

In my view, a simple greeting or offer of materials to voters outside a prohibited area would not be sufficient to constitute a violation of Virginia law; however, depending on the circumstances, particular contact could violate Virginia law if performed in an inappropriate manner. Factors like the particular words spoken, or the proximity, tone, bearing, and/or volume of the speaker would be relevant in determining whether a violation of Virginia law had occurred. Accordingly, I offer the above analysis as general guidance only. Whether any particular conduct runs afoul of Virginia's voter protection laws is a fact-specific inquiry that is beyond the scope of an Opinion of this Office. Similarly, whether any specific enforcement measure taken to protect a voter's right to vote "in a free and unimpaired manner" would constitute a violation of a particular speaker's First Amendment rights is a factual determination upon which I am unable to render an opinion.

Conclusion

In sum, your inquiry presents issues related to what the U.S. Supreme Court describes as "a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote, a right at the heart of our democracy." Properly tailored voter protection laws generally do not violate the First Amendment, but "it is possible for a statute or ordinance to be facially valid, and yet unconstitutional as applied in a particular case." Accordingly, my guidance is general in nature: the questions of whether specific expressive activity violates voter protection laws and whether the enforcement of such laws in a particular circumstance runs afoul of the First Amendment both require fact-specific determinations and analysis beyond the scope of an Opinion.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General