LEGAL Q&A: Electioneering Guidance

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

With election season already underway, there is always renewed interest in the state’s electioneering laws. Electioneering means visibly displaying or audibly disseminating information that a reasonable person would believe explicitly advocates for or against any candidate, political party, or measure being voted. Electioneering may happen at your local elections, or throughout the year leading up to an election. There are specific rules that apply to the general public appearing to vote, elected or appointed officials, and town employees. In this article I will lay out a guidance to address the most common electioneering concerns.

Electioneering by the general public
Q. What type of conduct could be considered electioneering?
A. Wearing clothing or paraphernalia that displays a candidate's name, likeness, or logo, a ballot measure's number, title, subject, or logo, a political party's name or logo, or any communication that a reasonable person would believe explicitly advocates for or against any candidate, political party, or measure. Also, distributing or posting a card, handbill, poster, placard, picture, pin, sticker, circular, or any other form of communication that a reasonable person would believe explicitly advocates for or against any candidate, political party, or measure.
Engaging in this type of conduct could be viewed as electioneering. It is important to remember that this conduct is not prohibited, it is just subject to certain limitations at the polling places. The public is allowed to engage in electioneering leading up to an election, at an election, or after an election as long as they abide by the restrictions put in place during the actual election.

Q. What are the rules concerning electioneering at the polling place for the general public?
A. This is covered in RSA 659:43. The statute states that electioneering shall be prohibited within the polling place building. The moderator establishes one or more no-electioneering corridors, no less than 10 feet wide, that extend from all entrances of the polling place. A voter must be allowed to enter the polling place building without interference from individuals outside the corridor. The Moderator shall designate a preferred area for electioneering where electioneering is allowed. The distribution or posting of electioneering communications, including but not limited to posters, cards, handbills, placards, pictures, pins, stickers, circulars, or articles of clothing, is prohibited within any no-electioneering corridor established outside the polling place by the moderator. As for outside of the polling place, electioneering signs shall not be affixed to the polling place building or grounds. Electioneering signs shall also not be left unattended, including those affixed to vehicles. A police officer can remove a vehicle that is parked or has been left unattended on election day for longer than 3 hours in an area designated for voters who are temporarily present for the purpose of voting. RSA 262:32, VIII

Q. What should I do if someone refuses to comply with our electioneering restrictions?
A. When it comes to wearing clothing, pins, hats, etc. that advocate for a specific candidate or measure, provided that the person is eligible to vote or register to vote in the voting district, if they are unable to remove or cover clothing that explicitly advocates for or against any candidate, political party, or measure, they may wear such clothing in the polling place while actively engaged in the process of registering to vote or while actively engaged in the process of voting. In most instances, someone should be able to remove or cover up the offending attire. This could include asking someone to remove a cap, or perhaps having a stack of plain shirts to offer for someone to cover an offending t-shirt. However, if someone simply refuses to cover up or remove electioneering clothing, it is not advisable to restrict their constitutional right to cast a vote. The best approach would be to allow them to vote and report the incident to the Secretary of State’s office after the election.

Q. How do we control electioneering at the polling place without infringing on someone’s 1st Amendment right of free speech?
A. A state may regulate speech inside the polling place “as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 885 (2018). Speech supporting or opposing a candidate or measure on the ballot at a polling place may be prohibited. This is because it is a reasonable time, place and manner restriction on electioneering. The government is not saying that you cannot express your support for a candidate or measure, the government is simply restricting the place where you may express those opinions. You are allowed to electioneer in the designated locations. Speech supporting a point of view not on the ballot at a polling place may not be prohibited. This is because prohibition a point of view would be a content based restriction,
and therefore would violate the 1st Amendment. How is this different from electioneering? Here is an example: if someone wore a shirt advocating for a particular political party with a candidate on the ballot, that would be  electioneering. If someone wore a shirt displaying the statement “support 2nd Amendment rights,” even if this sentiment is traditionally associated with a particular party, as long as there isn’t a measure specifically related to gun rights on the ballot, this shirt could not be prohibited as it is a view point, not a matter on the ballot.

Electioneering by local officials and town employees
Q. Are local officials or town employees ever allowed to show their support for a particular candidate or measure appearing on the ballot?
A. RSA 659:44 prohibits any election officer from electioneering while in performance of his/her official duties. The term “election officer” is defined as “any moderator, deputy moderator, assistant moderator, town clerk, deputy town clerk, city clerk, deputy city clerk, ward clerk, selectman, supervisor of the checklist, registrar, or deputy registrar.” RSA 652:14. The Attorney General’s Office has interpreted RSA 659:44 as prohibiting any official action by an election official to endorse a candidate for office. According to the Attorney General’s Office it is a violation of RSA 659:44 for a select board to endorse a candidate for office while
acting in their official capacity as an election official.
In addition, no public employee, as defined in RSA 273-A:1, IX, shall electioneer while in the performance of his or her official duties. No public employee shall use government property or equipment, including, but not limited to, telephones, facsimile machines, vehicles, and computers, for electioneering. Any person who violates this section shall be guilty of a misdemeanor.
However, this does not mean that local officials or town employees lose their rights as a private citizen to support the candidates and measures they care about. They could endorse a candidate or measure in their individual capacity by putting up a yard sign, canvassing in their free time, etc. The important distinction is to keep these actions separate from their official capacity and duties in town.

Q. Does this mean that the town cannot provide any information to its residents about issues being voted on without engaging in illegal electioneering?
A. No, not necessarily. However, it matters how the information is being provided. Remember, an important element to electioneering is advocating for or against something. It is common practice for the select board,
library trustees, or other municipal entity to put together an informational pamphlet or flyer describing different measures appearing on the ballot, explaining the impact of each issue should it be approved or denied, and giving any other relevant information geared towards voter education. The select board is also allowed to put its recommendation on warrant articles. Consequently, it is appropriate for an information pamphlet to mention the select board’s recommendation as it will appear on the ballot, but towns should be very careful not to expand their advocacy beyond those parameters.

Q. My name is appearing on the ballot for election. I am currently serving as an election official. Do I need to “recuse” myself from my election duties?
A. All election officials and inspectors of election, on the ballot seeking only an election official office, may perform their election official duties, such as a moderator on the ballot solely to be re-elected as moderator. All election officials on the ballot seeking an office other than a position as an election official are disqualified from handling marked ballots, counting votes, and may not be within the area designated for ballot counting within the guardrail during the counting of votes for an office for which he or she is a candidate. A person who is not a moderator, clerk, selectman, inspector of elections, or supervisor of the checklist, whose name appears on the ballot for an office other than as an election official, is disqualified from performing duties as an election official in that election. For example, a candidate for state representative cannot serve as a
deputy moderator, assistant clerk, or ballot clerk. An inspector of election (ballot clerk) whose name is on the ballot for either an election official or other office is not disqualified from serving as a ballot clerk but may not handle marked ballots or count ballots.

Jonathan Cowal is the Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.