|To:||County Clerks/Elections Administrators|
|From:||Ann McGeehan, Director of Elections|
|Date:||October 7, 2010|
|RE:||Legality of Certain Activities in Vicinity of Polling Place|
As you prepare for the November 2, 2010 general election for state and county officers, we wish to advise you of state law on several polling place issues.
The policy of our office is to permit non-disruptive exit polling within the 100 foot boundaries surrounding each polling place. We note that the presiding election judge at the polling place must determine that such exit polling does not constitute either (1) “loitering” in violation of Section 61.003(a) of the Code or (2) a disruption of order or a contribution to a breach of the peace at the polling place in violation of Section 32.075(a) of the Code. Tex. Elec. Code Ann. §§ 61.003(a), 32.075 (Vernon 2010).
Each polling place must be organized with 100 foot distance markers posted at surrounding outside entries to the building. During the voting period and inside this protected area, it is prohibited to electioneer, including expressing preference for or against any candidate, measure, or political party; per Section 61.003 of the Code, a violation of this provision is a Class C misdemeanor. Id. § 61.003. It is also prohibited to use a sound amplification device to electioneer within 1,000 feet of the polling place; per Section 61.004 of the Code, a violation of this provision is a Class C misdemeanor. Id. § 61.004.
Please note that the presiding judge of each polling place has the authority of a district judge while serving in that capacity. Id. § 32.075(c). This authority enables the presiding judge to use their discretion to ensure the safety and efficiency of the polling place and the surrounding 100 foot area. However, Section 32.075(e) of the Code specifically states that a presiding judge may not enforce electioneering provisions outside of the 100 foot distance markers. Id. § 32.075(e).
If your presiding judges have questions as to what constitutes electioneering, encourage them to contact either your office or our office directly with specific questions.
Petition Signature Gathering
Please be advised that any persons who wish to gather petition signatures must do so beyond the 100-foot distance markers. Petition signatures for any type of election may not be collected inside the polling place or within the 100-foot distance marker. Petition gathering is considered electioneering for or against a measure, which is prohibited within the 100-foot distance marker. Id. § 61.003.
Use of Firearms by Law Enforcement
Please note that Section 46.03 of the Texas Penal Code generally prohibits a person from bringing a firearm onto the premises of a polling place. Tex. Pen. Code Ann. § 46.03 (Vernon Supp. 2009). However, this prohibition does not apply to a peace officer, regardless of whether the police officer is on or off duty.
We hope you find this information helpful. Please contact us at 1-800-252-2216 if you have any questions.