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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.

Again, while we have endeavored to provide accurate responses to the questions we received, we cannot guarantee the answers. (This is for your protection and ours — we do not have the resources to analyze every situation individually.) What we have tried to do is to point you to the sections of the code that apply to your question, and the give you some general thoughts on how those sections of the code apply.

Please contact your local Board of Elections and/ or a lawyer if you’re searching for legal advice on your specific activities.

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.

7 Comments on “Election Day Law FAQ”

  1. #1 The Shout » Center for Citizen Media: Election Day Law FAQ
    on Nov 6th, 2006 at 7:29 pm

    [...] It’s up! Blog the vote! Election Day Law FAQ [...]

  2. #2 Blanked Out » Blog Archive » Voter Protection
    on Nov 7th, 2006 at 5:11 am

    [...] Other election day resources, especially if you’re covering election day for your blog, can be found at the Center for Citizen Media. [...]

  3. #3 John Palfrey » Blog Archive » Happy Election Day, and Come Blog the Vote at Berkman with BMG and others!
    on Nov 7th, 2006 at 11:52 am

    [...] Our friends at the Center for Citizens Media and Stanford Law School have released an Election Guide for Bloggers, just in time to be useful. [...]

  4. #4 Clicked : Hope votes
    on Nov 7th, 2006 at 12:14 pm

    [...] Posted: Tuesday, November 07, 2006 11:58 AM by Will Femia A quick look a some of the election related links I clicked this morning while they’re still relevant.  I’ll have a more typical Clicked later today. I had planned to cover voting irregularities and dirty tricks as reported by blogs today, but looking at the cover stories on our site so far today, that’s not exactly a blog secret.  One aspect that is seeing greater emphasis on the blogs is the idea of protecting your vote by knowing your rights.  (This one’s a little more formal in describing your legal rights on election day.) Pouring white-out over polling books? This dirty trick flier in Maryland is one I didn’t see in mainstream coverage. Speaking of fliers, Andrew Sullivan points to a flier that he interprets as suggesting a dark skinned man raping a white woman (if you vote for Democrats).  I’m not sure I see that in the image.  If I had to read into it I’d say that it’s showing the PC interests of dark skinned minorities silencing the voice of the white majority. Second GOP Firm Tied to Harrassing Robo Calls - The reason this matters is that naming the perpetrators is the first step to accountability.  The second step is firing them:  Indiana GOP Fires Harrassing Robo Call Firm “Meltdown” appears to be a popular word for what’s happening to some of the voting machines.  Brad Blog (which reports actively on the problem of e-voting even when it isn’t Election Day) is updating with details. Has the election already been stolen? Election predictions abound, but I enjoyed the quickly read list at TBogg. “Gitcher Lame Election-Day Heds Here!” Speaking of Slate articles, I also clicked this article about how prison populations play havoc with census data. Last election, the big news from the blogs was that they leaked all the exit poll info.  This time apparently there’s going to be a greater effort to restrain that data.  Or at least, right now there’s a greater effort to talk about it.  We’ll see how that goes in a few hours. Olbermann’s call for accountability is being well received around the blogosphere. Speaking of all those robo-calls, there’s this suggestion in today’s mailbag: There is a way to fight back the “robo-calls”.  Assuming that the machine does have limitations on how many calls it can make per hour, just set your phone down on the counter and let the recording run its course.  Come back in 3 or 4 minutes and hang up the phone.  Not only has the machine completed its call to you, but it is not bothering someone else during that time.  If everybody did this, it should drastically cut down the total number of calls that the machine makes.-David [...]

  5. #5 Eileen Thiede
    on Nov 7th, 2006 at 1:02 pm

    Are you allowed to post signs supporting a candidate close to a polling place? Where I live there are many signs for a particular candidate within about 25-30 of the polling site. I thought there was some sort of regulation regarding this.

  6. #6 carapace » Blog Archive » Tuesday November 7, 2006 - War against a foreign country only happens when the moneyed classes think they are going to profit from it. George Orwell
    on Nov 7th, 2006 at 2:39 pm
  7. #7 Kevin M
    on Mar 12th, 2007 at 7:49 am

    Suggestion: Change the voting law to include a run-off vote.

    Purpose: To encourage third parties in the US govermental process.

    Implementation: In any vote for president, governor, senator, or representative, a candidate will be deemed to have won the election
    only if they receive a majority of the votes (at least 50%). If not, a
    runoff election will be held between the top two candidates.

    Rationale: This solves the problem where the two top candidates are
    candidate A and B, but many voters like C more than B. It’s possible
    that a split in the vote between B and C will give A the most votes, even
    though most voters prefer B to A.