Bill Description: Senate Bill 1244 would significantly expand the free-speech suspension zones around polling places.
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?
Senate Bill 1244 would amend Section 18-2318, Idaho Code, which defines and prohibits electioneering at polling places. Existing law prohibits such electioneering "within a polling place, or any building in which an election is being held, or within one hundred (100) feet thereof."
Senate Bill 1244 would expand this definition in several ways. It would amend the above language to say "within a polling place, within any building in which an election is being held, or within two hundred fifty (250) feet of the primary entrance and exit used by voters at a polling place or other voting location."
This would more than double the distance from a polling location where electioneering is prohibited and redefine the point of measurement to the primary entrance and exit.
This is a significant expansion of the area where free speech is effectively prohibited on election days. The total area around any specific polling place would depend on the size of the polling place itself, but if we calculate a 100-foot radius from a single point, the zone is 31,416 square feet, or approximately 72% of one acre. If we calculate a 250-foot radius from a single point, the zone would be 196,000 square feet, which is an area of 4.5 acres, or more than a six-fold increase.
The bill would do more than increase the size of the speech-free zone. It would expand the list of prohibited behaviors in that zone to include advocating "for or against any candidate or measure," soliciting "votes in any manner or by any means," and giving or offering to give "any money or gifts."
The activities deemed electioneering by this law are generally recognized as protected free speech, yet this free speech is prohibited in or near polling places. The significant expansion of the free-speech suspension zones around polling places proposed by Senate Bill 1244 is not necessary to address any compelling government interest, which is the standard for limiting a fundamental and constitutionally-protected right.
Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?
The current penalty for violating this statute is a fine of not less than $25.00 nor exceeding $1,000.
Senate Bill 1244 would amend this penalty to say that the first two violations "shall be deemed an infraction punishable by a fine in the amount of three hundred dollars ($300) for each such violation" and any subsequent offense shall be deemed a misdemeanor, which carries a penalty of up to a $1,000 fine, plus up to six months of incarceration.
Of note, many statutes that create reduced penalties for first offenses relative to subsequent offenses include a time frame that counts for a repeat offense, such as 5 or 7 years. Senate Bill 1244 does not contain such a time frame, so it would appear to calculate violations of this section at any time during a person's life as cumulative, no matter how many years (or decades) may have elapsed.
It also appears that any previous offenses related to electioneering near a polling place would be counted in determining the penalty, as the amended language says, "the first two (2) violations of this section by a person …" without any limitation on when the violations may have occurred.
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