That's Electioneering Using a Cell Phone, And It's Not Fair!


In a good example of straining at the letter of a law and ignoring its spirit, the legal watchdogs at Judicial Watch think that getting a text message that you subscribed to receive that just might arrive while you are at a polling place violates anti-electioneering-at-polling-place laws. The group has

issued a request to the Illinois State Board of Elections to investigate whether the Obama campaign's planned Election Day text messages would violate a state law that prevents electioneering in polling places. Judicial Watch plans to issue similar requests to election officials in other states.

……Given that these messages will likely be received and read by voters on their cell phones inside polling places, and perhaps inside voting booths, the messages may violate an Illinois state law against electioneering within polling places.

Illinois law specifically states: "No…person shall, at any primary or election, do any electioneering or soliciting of votes or engage in any political discussion within any polling place." [10 ILCS 5/17-29 (a)]

According to the Judicial Watch letter, dated October 28, 2008:

"Even if an individual is planning on voting for Senator Obama on Election Day, a voter should be able to enter a polling place and cast his or her vote without being subjected to yet more electioneering. Secrecy, privacy, and freedom from outside influence in the polling place are fundamental to ensuring a fair election process. The people of Illinois must be free to cast their votes without electioneering text messages inside Illinois polling places. Illinois law requires no less."

"There is no difference between a text message received on a cell phone in a polling station and a campaign sign. The effect is to influence citizens as they cast votes. This electioneering is prohibited not only by Illinois state law, but the by the laws of other states as well….

Of course, there is a difference between a text message received on a cell phone and a campaign sign, even beyond that the particular recipient actually asked to receive the text and no one asks to see sign-wielding enthusiasts. While the full record of legislative intent of such laws is not in front of me, it seems to me their only possible legitimate purpose is more one of ensuring civic order at the polling place than protecting the "secrecy, privacy, and freedom" of the voter, which remains intact even if they get that annoying beep on their cell phones marking receipt of a txt.

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  1. Interesting
    I agree – if they asked for it, it’s not electioneering. Also, there’s no guarantee that it will be while they are in the polling place. I don’t know what the content of the text message would be, but isn’t it likely more to remind the voter to vote that day, not to influence who they’re voting for?

  2. If they continue with their 3AM theme this will not be an issue. Well, it is a stupid ‘issue’ anyway that should not be considered a problem.

  3. I wouldn’t mind a ‘content free’ restriction that prohibits the use of personal electronic devices within the building that voting is taking place.

  4. Forget the issue of whether they asked for it -this is like arguing that if I take an unopened piece of campaign mail to the polling place with me, and open it inside the voting booth, the campaign has violated electioneering laws. Or if I take a movie of a candidate’s speech with me on my cell phone and watch it inside the voting booth, it’s an electioneering violation.

    The fact that a determined voter can find a way to open and read a communication while inside the voting booth does not mean that the communication is directed at the polling booth.

  5. Just about every state I can think of has laws on the books that mandate that a voter is allowed to bring a list of candidates into a voting booth so that they can keep straight who to vote for. It might even be part of one of the federal voting rights acts. If that’s not electioneering, then neither is getting a text message you’ve subscribed to while in the polling place.

  6. To be absolutely safe, there should be a curfew for everyone on election day between midnight and 11:59 pm. You can’t be too careful and you have to err on the side of caution.

  7. Judicial Watch thinks this is going to be the big problem on Tuesday? These folks have way too much time on their hands.

  8. Scenario I

    Let’s posit an elderly man whose eyes aren’t working too well.

    He goes into the voting booth, realizes he’s having trouble seeing the names on the paper, and asks a polling place worker to help him fill out his ballot.

    He asks which circle is John McCain’s. The worker points to it on the page.

    Now I would ask any memeber of Judicial watch who is reading this blog, is the polling place worker electioneering?

    Scenario II,

    A man is in the polling booth. His cell phone rings. It’s his wife telling him that she is off of work early, and could he come pick her up and transport her to the polling booth so that she can vote for McCain.

    So judicial watch? Is that electioneering?

    Scenario III,

    John McCain enters a polling place. Some supporters rush up to thank him for his fine service to his country (GAG!). They shake his hand.

    Is that electioneering?

    Scenario IV

    One of John McCain’s precinct captains is standing in line at a polling booth. A volunteer calls him on his cell phone and alerts him to the fact that one of their vans has suffered a breakdown and that they need to get a replacement van ready.

    Is that electioneering?

    Scenario V

    A husband and wife go to vote. The husband is confused by the language in one of the ballot questions and asks his wife discreetly whether he should he be voting “yes” or “no” on question 1. his wife, aware of his opposition to a state income tax, answers quietly “You want to vote Yes”.

    Is that electioneering?

    A text message is discreet. It in no way puts undue pressure on anybody other than the recipient, who is free to ignore it.

    All I can say is WTF?

  9. no one asks to see sign-wielding enthusiasts

    I take offence to that. People wielding signs, and perhaps hootin’ and hollerin’ is ‘xactly what I want to see.

    Don’t tell me what I ask to see or not.

    You wanna see my what!?

  10. LarryA wrote:
    Judicial Watch thinks this is going to be the big problem on Tuesday? These folks have way too much time on their hands.

    In chicago no less.
    Vote early, vote late, vote often.
    Being deceased is a poor excuse.
    *rolls eyes*

  11. As a Chicago Election Judge, I promise to do my part in not voting to remove people that receive text messages from Obama in polling place.

  12. No one will have that problem at certain polling places–they’re banning cell phones because they’ve heard about an effort to record whether poll workers are screwing up.

  13. Texas; blanket prohibition on electioneering within 100 ft of the poll entrance, and no cell phone or camera use permitted, misdemeanor violations under Texas Election Code. So no candidate shirts, no sound trucks within 1000 ft of the poll, and keep that cell in your pocket or you will be asked to put it up, take it outside, or hit the road Jack.

  14. tired dog: Similar situation in Florida. Electioneers are kept behind a line clearly marked by signs, essentially across the street from the polling station. A sign at the entry to the polling facility warns that all cell phones must be turned off within. Not sure about the legal penalties for failing to abide by the rules.

  15. “No…person shall, at any primary or election, do any electioneering or soliciting of votes or engage in any political discussion within any polling place”

    Uh, the person doin’ the electioneering ain’t within any polling place.

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