Request By:
Donald W. Blevins
Fayette County Clerk
162 East Main Street
Lexington,. Kentucky 40507
Opinion
Opinion By: Chris Gorman, Attorney General; Ross T. Carter, Assistant Attorney General
You have submitted the following questions to the Attorney General:
1. Is it a violation of the electioneering statute or any other statute for a precinct election officer to wear
a) a campaign button advocating a candidate, party or question
b) a T-shirt or some other type of shirt advocating a candidate, party or question.
2. Is it a violation of the electioneering statute for a voter to wear
a) a campaign button advocating a candidate, party or question (see AG opinion 94 of 1984)
b) a T-shirt or some other type of shirt advocating a candidate, party or question.
The pertinent portion of the electioneering statute, KRS 117.235, provides:
(2) No officer of election shall do any electioneering on election day.
(3) No person shall do any electioneering at the polling place . . . . Electioneering shall include the displaying of signs, the distribution of campaign literature, cards or handbills, the soliciting of signatures to any petition, or the solicitation of votes for or against any candidate or question on the ballot in any manner, but shall not include exit polling. . . .
(4) No voter shall be permitted to converse with others while in the voting room concerning their support or nonsupport of any candidate, party or issue to be voted on, except as provided in KRS 117.255 [regarding voters who require assistance].
The list of activities that constitute electioneering as set out in the quoted statute concludes with a broad reference to "the solicitation of votes for or agianst any candidate or question on the ballot in any manner." This general definition comports with the construction given the term by the courts of other states. In Fish v. Redeker, 411 P.2d 40, 42 (Az. 1966), Arizona's highest court held that a precinct worker who was also a candidate was engaged in electioneering by simply mentioning her name to voters. The court wrote:
The Court was neither directed to, nor able to, find a statute or case defining the term 'electioneers. ' Webster's Third New International Dictionary defines electioneer as 'to take an active part in an election campaign: as a: to campaign for one's own election. b: to try sway public opinion esp. by the use of propaganda.' . . . In our opinion, electioneering encompasses an attempt on the part of an individual or candidate to persuade or influence eligible voters to vote for a particular candidate, party or proposition . . . .
In OAG 74-773 we defined electioneering as "where a person through some overt action tries to sway a voter for a particular candidate or public question by persuasion, harassment, or intimidation." At the time we issued that opinion the statute did not contain the list of activities included under the term "electioneering" as we find in the current statute. Our definition was considerably narrower than the current definition, which includes the solicitation of votes "in any manner." We therefore distinguish the definition we provided in OAG 74-773.
In OAG 84-94 we said that wearing a campaign button does not constitute electioneering. We reasoned that the wearing of a button does not fall within the statutory proscription against the displaying of signs based on the dictionary definition of "sign." We did not consider whether the wearing of campaign buttons constitutes "the solicitation of votes . . . in any manner."
We now conclude that our reading of the statute as set out in OAG 84-94 was too narrow, and we overrule that opinion accordingly. We note that the statute's approach to electioneering is inclusive; that is to say, the statute lists three specific activities and one general activity that are included within the definition of electioneering, while it makes little attempt to identify activities that should be excluded from the definition. (We do not read the exclusion of exit polling to abridge the scope of electioneering, since exit polling occurs after a voter has cast his ballot and could not in any sense be deemed an effort to influence the voter's decision.) The general prohibition against "the solicitation of votes . . . in any manner" appears to us to make the term's compass as broad as it can possibly be. If the display of a campaign sign constitutes a prohibited solicitation of votes, then the wearing of a button must perform the same prohibited purpose. We do not believe that buttons are permissible simply because they are small. One wears a campaign button for the same reason one displays a campaign sign: to attract or solicit other voters to vote in a particular way. In one sense the wearing of a button or a shirt extolling a candidate or issue, which identifies the solicitation with the wearer, who may be known to other voters in the polling room, provides a more powerful solicitation than a sign posted anonymously. We now decide that electioneering includes the display of any item of campaign paraphernalia, whether it be a poster on the wall or a button on one's lapel, that indicates support for or against any candidate or issue. (We note that at least one state court has held electioneering to include the display of bumper stickers, signs, and buttons. Ferguson Police Officers v. City of Ferguson, 670 S.W.2d 921 (Mo.App. 1984).)
Under our new definition of electioneering the display or wearing of the items mentioned in your letter would be prohibited whether the wearer is an election officer or a voter. With respect to election officers, the law clearly permits this prohibition even though it constricts the right to free speech accorded by the first amendment. A state has a valid interest in regulating the speech of those who represent it. Broadrick v. Oklahoma, 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). A state may even go so far as to fire an employee who refuses to remove a candidate's bumper sticker from her automobile. Connealy v. Walsh, 412 F.Supp. 146 (W.D. Mo. 1976).
The question whether the prohibition of electioneering contravenes first amendment rights of voters generally does not admit to simple analysis. Any statute that interferes with first amendment rights must be supported by a compelling state interest and must operate without unnecessarily proscribing protected expression. Brown v. Hartlage, 456 U.S. 45, 71 L. Ed. 2d 732, 102 S. Ct. 1523 (1982). While no one would doubt the state's compelling interest in maintaining orderly elections (Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976)), one might question whether it is really necessary to prohibit the wearing of campaign buttons in order to maintain that order. A federal court in Florida struck down a statute prohibiting solicitation within 150 feet of polling places with this comment:
[I]f the quality of this interest is merely the offense suffered by a voter who approaches the polls only to be approached by a petitioner, this brief exposure to grassroots democratic process, however unpalatable to some individuals, cannot justify a restriction on speech when the offensive activity can be avoided readily by communicating a declination of interest to the petitioner.
Florida Committee For Liability Reform v. McMillan, 682 F.Supp. 1536, 1542 (M.D. Fla. 1988). Without exhaustively reviewing all the reported decisions we can only state that a complete prohibition against all forms of electioneering, including the relatively inocuous wearing of a campaign button, would likely be found to violate the first amendment. We do not believe that an orderly democratic election requires the total isolation of voters from the slightest exposure to an opinion as they stand in line to vote. We conclude, that, while the statute broadly defines electioneering, the first amendment prohibits the enforcement of the statute to its fullest extent.
We perceive a reasonable distinction between campaign material that is worn by a voter, such as a button or a shirt, and material that is affixed within the polling place or otherwise associated with the conduct of the election itself. A voter who notices a campaign button worn by the person next in line perceives the button as a simple declaration of that person's preference, and as a non-intrusive exhortation to that point of view. The same button worn by an election official, however, or a poster dispayed on the wall of the polling place, intrudes upon the neutrality of the voting process by associating the election itself with the view espoused in the campaign material. Therefore we do not believe that Kentucky's electioneering statute may be enforced to prohibit the wearing of campaign material by voters in the voting place.
This does not mean, however, that voters have an unfettered right to electioneer as they wait to vote. The precinct officers must maintain order at the polls. The first amendment does not allow a voter to disrupt the voting process by persistent appeals to other voters who do not wish to be subjected to such communication. Passive communication such as wearing a hat, button, or shirt is permissible; oral solicitation of votes, or other more intrusive communication, is not.
To summarize our findings, we conclude that:
electioneering, as defined in KRS 117.235, broadly encompasses all activities, including such passive activities as wearing a campaign button, that solicit a vote for or against a candidate or issue;
the statute may be fully enforced to prohibit electioneering by precinct officers, since the state's compelling need to maintain orderly elections outweighs the first amendment rights of the precinct officers; and
the first amendment prohibits enforcement of the statute to prohibit voters from wearing items such as buttons or shirts that solicit a vote for or against a candidate or issue.