Bill Description: House Bill 279 would expand current limits on freedom of speech at and near polling places.
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NOTE: House Bill 279 deals with the same issues as House Bill 232, albeit in a somewhat less extreme manner.
Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?
House Bill 279 would amend Section 18-2318, Idaho Code, which defines and prohibits electioneering at polling places.
The bill's legislative intent language says, "The fundamental right of free speech must be balanced against the equally fundamental right to cast a vote free of intimidation or coercion."
On its face, this statement is correct, but the rest of the bill is problematic. It has an overly broad definition of “electioneering,” which it bans in or near polling places and defines as "soliciting, greeting, or approaching a voter with any communication of any kind to influence the individual. Such communication includes but is not limited to personal apparel, flags, banners, posters, signs, handbills, and unofficial voter guides and may be in the form of audio, visual, oral, written, electronic, or any other medium."
There is a significant difference between "intimidation or coercion" and "greeting … a voter" while wearing a t-shirt with a campaign logo on it.
According to an opinion issued by the Idaho attorney general’s office in October 2020, the current law against electioneering does not prohibit a voter from wearing a campaign t-shirt or button as long as the voter does not otherwise engage in politicking or electioneering.
This bill would effectively ban talking to the person next to you while standing in line at a polling place while wearing a campaign t-shirt or button.
The balancing act laid out in the intent language is not met by the prohibitions on free speech imposed by this bill. The mere expression of political preference is not "intimidation or coercion" and therefore should not be classified as electioneering.
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The bill also changes the area in which electioneering is prohibited, from "within a polling place, or any building in which an election is being held, or within one hundred (100) feet thereof" to "within the property lines of any designated polling place or within forty (40) feet outside of such property lines."
While the distance is reduced, the reference to property lines seems to expand the scope of the prohibition to include parking lots and adjacent facilities on the same property (often a school or courthouse) as the polling place, in addition to the specific area or building being used by elections officials and voters.
This is not necessarily a harmful definition on its own. But combined with the expansive definition of electioneering discussed above, it could also prohibit the exercise of free speech in areas near polling places where it is not currently prohibited.
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