Election Day Law FAQ

The Stanford Law School Center for Internet and Society asked you for your questions about Election Day legal issues, and you responded. Below are some questions and answers, which will become a “Frequently Asked Questions” (FAQ) page, and we will be adding more soon.

NOTE: If you’re planning to take photos or videos, please look at this separate 50-state guide to photography in polling places.

Important: This has been written by law students, who are student fellows of the Stanford Law School Center for Internet and Society. Because the information is written for a general audience, without investigation into the facts of each particular case, it is not legal advice: we have no attorney-client relationship with you.

Questions so far (more to come):

QUESTION: I hope you’ll address 18 USC 596. Don’t know where it came from or if it has ever been enforced. Thanks–

(From Stephen in Nevada)

ANSWER:

Text of Law — 18 U.S.C. § 596 — Polling armed forces

Whoever, within or without the Armed Forces of the United States, polls any member of such forces, either within or without the United States, either before or after he executes any ballot under any Federal or State law, with reference to his choice of or his vote for any candidate, or states, publishes, or releases any result of any purported poll taken from or among the members of the Armed Forces of the United States or including within it the statement of choice for such candidate or of such votes cast by any member of the Armed Forces of the United States, shall be fined under this title or imprisoned for not more than one year, or both.

The word “poll” means any request for information, verbal or written, which by its language or form of expression requires or implies the necessity of an answer, where the request is made with the intent of compiling the result of the answers obtained, either for the personal use of the person making the request, or for the purpose of reporting the same to any other person, persons, political party, unincorporated association or corporation, or for the purpose of publishing the same orally, by radio, or in written or printed form.

18 U.S.C. section 596 states that members of the armed forces may not be polled by any person or political party “with reference to his choice of or his vote for any candidate.” The statute provides for a fine and/or imprisonment for not more than one year. The statute was passed in 1948 and has been modified very little from its original form.

There are no cases on Westlaw or Lexis in which a person was prosecuted for violating this statute. Most materials which reference the statute simply reference the statute to support statements about the voting process generally. For example, a 1975 Supreme Court brief references the statute (along with three other similar statutes) to support the statement: “Recognizing that military influence in elections and military support of candidates for office could threaten democratie [sic] processes, Congress has enacted a long line of statutes designed to guard against military involvement in the nation’s political processes.” Greer v. Spock, No. 74-848, Brief for Petitioners, 1975 WL 173767. [note that this source is not bluebooked]

QUESTION: In Ohio, do you know if citizen-organized exit polls and parallel elections are considered “exit polls?” In particular, can we also be within the 100-ft boundary?

ANSWER: In Ohio, the state code disallows any “person” (except election officials, police and other government-related individuals) from coming within the boundaries of a polling place. R.C. § 3501.35 (Ohio’s Revised Code is available online here: http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC). Shortly before the 2004 election, that law was challenged in a lawsuit as applied to reporters and the 6th Circuit allowed an injunction against the Ohio Secretary of State from enforcing that prohibition against members of the press. Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 683 (6th Cir. 2004). The decision is very short (it was an emergency order) and only mentions “reporters and photographers” and “members of the press” as not having to follow the rule. The Court wrote that the “objective” of members of the press is to “report the news of the day to their fellow Ohio citizens.” Beacon at 685. This isn’t the most precise definition, but, if taken at face value, could easily encompass citizen journalists such as bloggers. However, the exact boundaries of “the members of the press” will probably only be settled by a future lawsuit and decision from a court. If “members of the press” includes bloggers, then they too do not have to follow the ban on not being within the boundaries of a polling place.
No other case about the constitutionality of similar laws banning exit polls near polling places addresses what is meant by “members of the press.” The lawsuits were all brought by large media companies, and the issue of their “legitimacy” didn’t raise any arguments. See Daily Herald v. Munro, 838 F.2d 380 (9th Cir 1988); Journal Broadcasting v. Logsdon, 1988 US Dist Lexis 16864 (WD KY 1988); NBS v. Cleland, 697 F. Supp. 1205 (ND GA 1988).

QUESTION: With the rise of absentee voting, what happens if a person votes absentee (that is, mails it in) and then dies before election day. Is the vote counted? I live in Virginia.

ANSWER: Mailed absentee ballots are not considered cast until election day. Therefore, if you die before election day, your vote will not be counted. See Attorney General’s 1959 opinion, attached to this e-mail.

However, in person absentee voting is treated differently. Central Absentee Precincts (where voters can come vote in person on voting machines before the date of the election) are not required, but if you are in an area with one and vote absentee on their voting equipment, then your ballot is considered cast at the moment you vote, not on the day of the election. Therefore, if you die after your vote is cast, your vote still counts. See Virginia Code Section 24.2-707: “The electoral board of any county or city using a central absentee voting precinct may provide for the casting of absentee ballots on voting equipment prior to election day by applicants who are voting in person. The State Board shall prescribe procedures for the use of voting equipment. The procedures shall provide for the casting of absentee ballots prior to election day by in-person applicants on voting
equipment which has been certified, and is currently approved, by the State Board. The procedures shall be applicable and uniformly applied by the State Board to all jurisdictions using comparable voting equipment. At least two officers of election, one representing each political party, shall be present during all hours that absentee voting is available at any location at which absentee ballots are cast prior to election day.” (available at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-707)

QUESTION: During what stage of the naturalization process, is a person entitled to register to vote? (From California)

ANSWER: In order to register to vote a person must be a US citizen. (http://www.ss.ca.gov/elections/elections_vr.htm) Therefore, a person must be fully naturalized as a US citizen before he or she can register to vote.

QUESTION: I recently moved to an apartment complex on Webster & Geary in San Francisco. (I’m originally from the town of Burlingame.) I sent in my registration, but haven’t received anything
by mail. Where am I voting?

ANSWER: For this question, if the voter submitted his materials before the registration deadline (15 days prior to the election), he should be voting based on his new address. If he still hasn’t gotten his materials (sample ballot and poll location), he can go to the following San Francisco website, which has a polling place lookup feature:

http://www.sfgov.org/site/election_index.asp

http://gispub02.sfgov.org/website/pollingplace/INDEX.htm

In general, Californians can find the contact info and websites of their County Elections Officials on this website: http://www.ss.ca.gov/elections/elections_d.htm

The election officials can then supply info on polling places and other relevant materials.

QUESTION: As a pollworker, is it legal for me to take notes while I am working, such as the serial
number of malfunctioning machines?

ANSWERS:
1. A Virginia rule seems to say that election officers cannot take extra notes: “No officer of election shall sign or otherwise mark any paper, form, or item, other than one furnished by the State Board, his electoral board, or general registrar, at his polling place during the hours that the polls are open.” (Va. Code Ann. § 24.2-650.)

2. Virginia has rules for how election officers handle machines with faulty counts. This rule says nothing about taking down serial numbers; it says only that the faulty number should be noted before voters use the machine, and the difference subtracted. (Va. Code Ann. § 24.2-639.)

3. There is also a rule for dealing with “inoperative equipment,” but this says nothing about taking notes or recording serial numbers. (Va. Code Ann. § 24.2-642.) This doesn’t mean that recording the numbers is illegal, though.