November 9, 2016
Dear Fellow Montanans:
I took three calls from election administrators yesterday, during the time that Montanans were voting. The last call came at 7:30 PM from a voting location where a candidate was campaigning from a spot located 100 feet from the polling place. From that spot the candidate was vigorously soliciting votes from citizens on their way in to vote. The campaigning was not well received and the election administrator wanted to alert our Office that complaints may be filed.
And there you have modern campaign law: a clash between an individual assertion of first amendment rights and community standards in the form of campaign practice laws. In this situation the community standard was the 100 foot line (set by Montana statute 13-35-221, MCA), designed to allow Montanans an opportunity to vote in private and without pressure from campaigns. The first amendment right was claimed by the candidate who sought to campaign in order to influence voters in his favor.
This particular candidate stopped at the 100 foot line, thereby respecting the community standard. A challenge to the community standard would have seen the candidate cross the 100 foot line under a claim of a first amendment right to "speak", or campaign, inside the 100 foot line, perhaps right up to the voting booth.
Please again consider this imagery of the 100 foot line. On the inside of the 100 foot line voters engage in privacy in voting, in an area that community standards compel a prohibition of campaigning in order to protect voting. On the outside of the 100 foot line is campaigning, an individual speech right protected by the first amendment. In effect, then, the community standard compels prohibition of individual speech (campaigning) within the 100 foot line.
Is 100 feet the right distance? At one time Montana had drawn the electioneering line at 300 feet, later amending the law to the current 100 feet standard. A law involving a prohibition of speech triggers a constitutionally based requirement that the prohibition be narrowly drawn to accomplish its purpose. Thus, Montana's current law sets a 100 foot line, a narrow space that still protects voter privacy as compared to a 300 foot line that would ban more campaigning, without providing significant further voter privacy.
I will follow with additional letters setting out examples of Montana laws designed as drawn narrowly to prohibit speech in order to protect a community standard.
Sincerely,
- State Internet Privacy & Security Policy
- 2016 Laws & Rules (Blue Book)
- Previous Commissioner Letters
- New: Public Employee Ethics Training
The Commissioner has jurisdiction over laws and rules pertaining to:
Ethics MCA ARM | Lobbying MCA ARM | Campaign Finance & Practices MCA ARM
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