Tennessee attorney general: Election law violates First Amendment

Monday, November 13, 2000
Rep. Steve Chabot, R-Ohio, thanks Pat Brothers, left,
for voting as Chabot does some late campaigning outside a polling place in
Ohio’s 1st District in western Cincinnati on Nov. 7.

A Tennessee law prohibiting voter solicitation on the grounds of
polling places in Montgomery County violates the First Amendment, the state
attorney general has determined.

A 1975 state law, applicable only to Montgomery County, makes it
unlawful for anyone to solicit votes or to “loiter about for the purposes of
soliciting votes” on the grounds of any polling place.

Vickie Koelman, the Montgomery County Administrator of Elections,
asked the state attorney general for a formal opinion on the constitutionality
of the law, which is called a private act. A private act is an act of the state
Legislature normally designed to affect a single county.

On Nov. 2, Tennessee Attorney General Paul Summers issued a formal
opinion, saying that the law violated the First Amendment.

Summers contrasted the law covering Montgomery County with a statewide
law prohibiting the distribution of campaign materials within 100 feet of
entrances to buildings in which elections are held.

“The Private Act restricts activity within the ‘grounds’ of a polling
place, rather than the 100-foot boundary prescribed by the general state law,”
the attorney general wrote. “Because the Private Act applies to the ‘grounds’
of a polling place, which vary based on the tract of land where the polling
place is located, we think a court would probably conclude that the Private Act
violates the First Amendment because it is not narrowly tailored.”

The attorney general noted that Tennessee’s statewide law regulating
voter solicitation at polling places was upheld by the U.S. Supreme Court in
its 1992 decision Burson v. Freeman.
In that decision, Justice Harry Blackmun wrote that “some restricted zone is
necessary in order to serve the States’ compelling interest in preventing voter
intimidation and election fraud.”

Justice John Paul Stevens dissented in Freeman, writing: “Although we often pay homage to
the electoral process, we must be careful not to confuse sanctity with silence.
The hubbub of campaign workers outside a polling place may be a nuisance, but
it is also the sound of a vibrant democracy.”

Sharon Curtiss-Flair, public information officer for the Tennessee
Attorney General’s Office, said, “It is the policy of the Tennessee attorney
general not to comment on formal opinions.”

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