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?

Subject

The First Amendment limits on Virginia voter protection laws (the 40-foot polling place rule, § 24.2-607's anti-hindering provision, and curbside voting), and what campaign volunteers and election officers may do.

Plain-English summary

Senator Mark Obenshain asked the AG several practical questions about poll worker conduct. Specifically: outside the 40-foot prohibited area, can candidates and campaign reps approach voters with sample ballots, literature, and petitions? Can they board buses or vans bringing retirement community residents to the polls? When voters are voting curbside, can a campaigner have "free speech time" with the voter before the election officer helps?

AG Jason Miyares walked through the layered Virginia framework. Section 24.2-604 creates a 40-foot "Prohibited Area" around the polling place entrance. Inside that area, no firearms, no loitering, no campaign material, no attempts to influence voters. The U.S. Supreme Court in Burson v. Freeman upheld the same kind of restriction (Tennessee had a 100-foot zone), and Virginia's 40-foot zone is comfortably within that constitutional space.

Outside the 40-foot zone, the speech rules loosen. Section 24.2-310 explicitly permits distribution of campaign material on polling place property outside the building containing the polls, except where § 24.2-604 prohibits. So a candidate or volunteer can stand 41 feet from the entrance and offer sample ballots, voting information, campaign literature, or petitions for signature.

But § 24.2-607(A) is not limited to the 40-foot zone. Anywhere, anyone who hinders, intimidates, or interferes with a voter so as to prevent the voter from casting a secret ballot commits a Class 1 misdemeanor. The AG read that to mean that even a permissible distance does not let you do what would otherwise be intimidation or interference. Similarly, § 24.2-1005 makes any intimidation, threat, or coercion of a voter a Class 1 misdemeanor regardless of location. The federal counterpart in 18 U.S.C. § 594 backs that up.

On the bus question, the AG was clear. There is no Virginia or federal law that gives a campaign rep the right to board a private vehicle (a retirement community bus, a van) to talk to voters inside. Vehicles are private property used for private purposes; the First Amendment does not create a right of access to them. And the GREB Handbook (Virginia Department of Elections, 2024) tells election officials to prevent campaigners from blocking the curbside voting area or signage. There is no "free speech time" obligation; the election officer's job is to assist the voter, not to facilitate access by third-party speakers.

The AG closed with the structural caveat that runs through the whole opinion: properly tailored voter protection laws are constitutional, but specific applications can be unconstitutional in specific facts. Whether your particular conduct violates the law (and whether enforcement against you violates your First Amendment rights) depends on words, tone, proximity, bearing, and volume. The opinion offers a framework, not a yes-or-no answer to any specific scenario.

What this means for you

If you are a poll volunteer or campaigner

Stay outside the 40-foot prohibited area marked by election officers. Inside that line, no campaign material, no firearms, no loitering, no influencing. Outside the line, you can hand out sample ballots, voting information, campaign literature, and petitions on polling place property generally.

What you cannot do anywhere: hinder, intimidate, or interfere with a voter's ability to cast a secret ballot. The 40-foot rule is a per se ban on certain conduct in a defined zone. Section 24.2-607(A) is a conduct rule that applies everywhere. A simple greeting and offer of materials is fine; following someone, blocking their path, or speaking in a way that pressures them is not.

Specifically: you cannot board a bus or van bringing voters to the polls. Even if the operator does not stop you, that operator could ask you to leave (private property), and the act could itself be hindering or interference under § 24.2-607(A). A voter trying to leave a vehicle to vote and being delayed by you is not the kind of "free speech" the First Amendment protects.

For curbside voting (voters age 65+ or with disabilities voting from a vehicle), election officers are required to designate an area where curbside voters can interact with candidates and campaigners outside the polling place, but officers also are required to keep the curbside voting area unblocked. You can stand in the designated area; you cannot intercept the voter as the officer approaches.

If you are an election officer or general registrar

Mark the 40-foot Prohibited Area clearly. The 2024 GREB Handbook (§ 5.3.9) is your operational guide for curbside voting setup, including designating the campaign-engagement area and ensuring that area does not block official signage or the curbside voting space. If you encounter a campaigner attempting to board a bus or van, or insisting on "free speech time" with a voter you are about to assist, the AG opinion confirms you have authority to refuse. Your duty under § 24.2-607(A) lets you order the person to cease; if they do not desist, you and a majority of the officers can order arrest under the in-statute warrant provision.

If you are unsure whether to escalate, consult your local registrar and the GREB Handbook in real time. Document anything that becomes an incident.

If you are a candidate or campaign manager

Train your volunteers using this opinion. The 40-foot rule is well-known; what is less well-known is that § 24.2-607(A) applies anywhere on Election Day. Volunteers who follow voters out to the curbside voting area, who try to board buses, or who refuse to back off when asked are exposing your campaign to misdemeanor charges and (under federal law) civil enforcement under 18 U.S.C. § 594. Sample ballots and literature are fine outside 40 feet; aggressive engagement is not.

For voter outreach to retirement communities, partner with the community administrators directly. They can decide whether and how campaigners may visit before transit day. Bus and van interception is the wrong channel.

If you are a voter, especially a curbside voter

You have the right to vote in private without being hindered, intimidated, or interfered with. If a campaigner is interfering with you (following you, not letting you leave a vehicle, pressing materials on you over your objection), tell the election officer. The officer has authority to order the campaigner to stop, and to order arrest if needed. For curbside voting, election officials are required to keep the area clear of blocking campaign personnel.

If you are a First Amendment attorney advising a campaigner facing charges

This opinion is general guidance, not a charging document. The AG was explicit that whether specific conduct violates Virginia law is a fact-specific question, and the analysis under Mansky and Burson allows for as-applied challenges even when the underlying law is facially valid (Volkswagen of Am. v. Smit). Build the as-applied record: the words spoken, the tone, the proximity, the timing relative to voting, the voter's response. The AG offers the same framework for both ends of the analysis.

If you operate a retirement community or transport voters

You are running private property. Campaign personnel do not have a right to board your vehicles, and the AG opinion confirms it. Coordinate with campaigns in advance if you want to facilitate voter education; manage access to your vehicles based on your own operational needs.

Common questions

Q: Where exactly is the 40-foot Prohibited Area?
A: Within 40 feet of "any entrance" of the polling place, where "entrance" means an opening in the wall used to get into the structure that contains the polling place. Election officers mark it physically. The area is in effect while polls are open and ballots are being counted, plus an hour before opening and after closing.

Q: Can I hold a sign outside 40 feet?
A: Generally yes, including campaign materials. Section 24.2-310 explicitly permits campaign material distribution on polling place property outside the building, with the 40-foot exception. Specific local rules about signage size or placement may apply.

Q: Can I use a bullhorn or loudspeaker?
A: Not within 300 feet of a polling place on Election Day. Section 24.2-605 prohibits that.

Q: I just want to say hi to my neighbor at the polls. Is that hindering?
A: A simple greeting outside the 40-foot zone is not a violation. The AG opinion specifically says "a simple greeting or offer of materials to voters outside a prohibited area would not be sufficient to constitute a violation."

Q: A campaigner is blocking my path at the curbside voting area. What can I do?
A: Tell the election officer. Officers are required to keep the curbside voting area unblocked. Section 24.2-607(A) gives the officer the authority to order the campaigner to leave and to arrest if they do not.

Q: Can the police be at the polls?
A: Yes. Section 24.2-606 authorizes law enforcement at polls to preserve order inside and outside.

Q: Can a campaigner enter the polling place itself?
A: Authorized representatives may be in the polling place, but they are subject to the same restrictions on giving or exhibiting campaign material or attempting to influence voters as everyone else (§ 24.2-604(C)).

Q: Is my conduct evaluated against a "reasonable voter" or "any voter"?
A: Neither in a clean way. The AG flagged this as fact-specific. Factors include the words, proximity, tone, bearing, and volume of the speaker, and the response of the voter. There is no bright-line test.

Background and statutory framework

Virginia's voter protection statutes are layered. The 40-foot Prohibited Area in § 24.2-604 is the most familiar layer; it sets a per-se restriction on a wide range of conduct in a defined zone. The U.S. Supreme Court upheld this kind of zone in Burson v. Freeman, 504 U.S. 191 (1992), recognizing that some restricted zone for political speech is necessary to serve compelling state interests in preventing intimidation and fraud.

Section 24.2-607(A) is conduct-based and not zone-limited. It bars hindering, intimidating, or interfering with a voter so as to prevent the voter from casting a secret ballot. The 4th Circuit in Marcellus v. Va. State Bd. of Elections, 849 F.3d 169 (2017), confirmed that distribution of campaign materials outside the 40-foot zone remains permissible. Section 24.2-1005 layers in another conduct rule against intimidation, threats, and coercion of voters anywhere.

Curbside voting under § 24.2-649.1 was created to make voting more accessible for voters age 65+ and with disabilities. The 2024 GREB Handbook implements the curbside provisions, including instructions to designate areas for candidate-voter contact while keeping the voting area unblocked.

The First Amendment overlay. Polling places are nonpublic forums (Sons of Confederate Veterans, 4th Cir. 2013), and government can impose content-neutral, time-place-manner restrictions reasonably tailored to compelling state interests. Mansky's facial vs. as-applied distinction means Virginia's voter protection laws are presumed valid but enforcement against any specific speaker can still be challenged on as-applied grounds.

The federal layer. 18 U.S.C. § 594 makes voter intimidation a federal crime in federal elections. State enforcement does not preempt federal enforcement.

Citations and references

Statutes:
- Va. Code Ann. § 24.2-604 (Prohibited Area)
- Va. Code Ann. § 24.2-607 (hindering or interference)
- Va. Code Ann. § 24.2-1005 (intimidation)
- Va. Code Ann. § 24.2-649.1 (curbside voting)
- 18 U.S.C. § 594 (federal voter intimidation)

Cases:
- Burson v. Freeman, 504 U.S. 191 (1992) (constitutionality of polling place buffer zones)
- Minnesota Voters All. v. Mansky, 585 U.S. 1 (2018) (polling place speech restrictions and as-applied challenges)
- Marcellus v. Va. State Bd. of Elections, 849 F.3d 169 (4th Cir. 2017) (campaign materials outside 40 feet permitted)

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