Oregon Advisory Opinions May 18, 1972: OAG 72-32 (May 18, 1972)

OAG 72-32.

In 30 Op. Att'y Gen. 448 (1962) this office concluded that initiative petitions relating to constitutional amendments which were not being voted upon could be lawfully circulated within 50 feet of a polling place during voting hours. The question arose under ORS 260.650(3), which prohibited any person from doing any electioneering on election day within 50 feet of a polling place.

In that opinion, the word "electioneering" was construed narrowly to include only campaigning or canvassing on matters being voted upon . Therefore, the statutory prohibition against

"any electioneering within 50 feet of a polling place" did not prevent the circulation of initiative petitions on matters not being voted upon. We have been asked to review that opinion in the light of another statute, ORS 250.430(1). We also reconsider the previous construction of ORS 260.650(3).

As amended in 1971, ORS 260.650(3) provides:

"No person shall, on election day within any polling place or within 50 feet of any polling place, wear any political badge, button or insignia or do any electioneering, including but not limited to any electioneering by public address system located more than 50 feet from any polling place but capable of being heard and understood within 50 feet of the polling place by any person with normal hearing."

Within the context of ORS 260.650(3), the term "polling place" should be defined narrowly to include only the portion of a building actually occupied and being used for voting purposes. For example, if the polling place is a local school, then the polling place would include only the rooms actually used, and therefore it would not be unlawful to conduct electioneering within 50 feet of another part of the building, but more than 50 feet from the particular rooms.

Regulatory statutes like ORS 260.650(3) have been impliedly held constitutional by the United States Supreme Court.

"We should point out at once that this question in no way involves the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there . . ." Mills v. Alabama , 384 U.S. 214, 218 (1966)

The purpose behind maintaining "peace, order and decorum"

at the polls is to insure a proper atmosphere where the elector may exercise his vote without confusion, intimidation or improper influence.

It has come to our attention that circulators have been soliciting signatures for initiative petitions advocating the lowering of the property tax limitation within 50 feet of polling places during school budget elections. Under these circumstances, a circulator could influence how the elector votes in the election. The fact that the change in the law being advocated by this petition is not being voted upon does not protect the elector from outside influence or confusion. The subject matter of such an election and this petition are related.

Considering this example and the purpose behind ORS 260.650(3), it is obvious that the fact that an issue is not presently being voted upon should not be determinative as to whether activity concerning that issue is or is not "electioneering".

The proper standard for determining whether or not a particular political activity is "electioneering" under ORS 260.650(3) is whether the activity, when exercised within 50 feet of a polling place, may disrupt, confuse, intimidate or influence electors who are exercising their right to vote.

Applying this standard to our question, it can be seen that the circulation of initiative petitions within 50 feet of a polling place, even though they relate only to future political questions, may be disruptive and create confusion. This result is even more likely when the subject matter of the petition in some

way relates to the present election. Explanations and solicitations may under these circumstances influence voters to vote one way or another, or may annoy electors and interfere with the exercise of their vote.

The problem of circulators standing within 50 feet of a polling place is greatly minimized by ORS 250.430(1) which provides:

"(1) ... no person shall approach or stand within 50 feet of the polls when open for the purpose of receiving votes, except peace officers ... and electors actually desiring and proceeding to vote."

For a circulator to be lawfully within 50 feet of a polling place during voting hours, he must be an elector required to vote at the polling place, and also be in the actual process of voting. He cannot loiter but must exercise his vote expeditiously. Once having voted, he must leave the polling place and thereafter may not lawfully be within 50 feet of the polling place. ORS 250.430(1), as a practical matter, would thus virtually prohibit any circulation of petitions within 50 feet of a polling place whether or not it is considered to be "electioneering".

This time limitation may encourage circulators to use audio devices; i.e., bull horns, microphones, etc., to solicit interest in their causes. It is easily understandable how the use of such devices near polling places could disrupt the polling place atmosphere, distracting the voters from the issues at hand and election officials from their duties.

The only means of insuring and protecting an orderly and proper atmosphere at the polling place is to prohibit all cam

paigning, solicitation or canvassing of voters on political issues whether or not these issues are being voted upon in the election. ORS 260.650(3) prohibits "electioneering", without in any way limiting the prohibition to electioneering on subjects being voted on at the particular time.

We conclude that ORS 260.650(3) prohibits any political activity within 50 feet of a polling place whether or not the issue is being presently voted upon. Therefore, a person may not circulate an initiative petition within 50 feet of a polling place nor use audio devices which may be heard within 50 feet of a polling place to aid in their solicitation.

We recognize that ORS 260.650(3) limits the exercise of First Amendment rights, and therefore will be sustained only if necessary to accomplish a compelling public purpose. Kramer v. Union Free School District , 395 U.S. 621 (1969). However, the limitation is minimal, since it applies only to a very small area, for a specifically limited time; it is a reasonable way of accomplishing a valid public purpose, and in fact appears necessary to accomplish that purpose; and it cannot be denied that the free exercise of the right to vote, without interference or undue influence at the actual point and time of voting, is a compelling public purpose equal in status to First Amendment rights themselves. We accordingly also conclude that ORS 260.650(3), as we construe it, is constitutional.