TITLE 21 ELECTIONS

Section 2. Elections and Primaries Generally, 21-2-1 through 21-2-604.

ARTICLE 11 PREPARATION FOR AND CONDUCT OF PRIMARIES AND ELECTIONS

21-2-414. Restrictions on campaign activities and public opinion polling within the vicinity of a polling place; cellular phone use prohibited; prohibition of candidates from entering certain polling places; penalty.

No person shall solicit votes in any manner or by any means or method, nor shall any person distribute or display any campaign material, nor shall any person solicit signatures for any petition, nor shall any person, other than election officials discharging their duties, establish or set up any tables or booths on any day in which ballots are being cast:
1. Within 150 feet of the outer edge of any building within which a polling place is established;
2. Within any polling place; or
3. Within 25 feet of any voter standing in line to vote at any polling place.
  These restrictions shall not apply to conduct occurring in private offices or areas which cannot be seen or heard by such electors.
Rooms under the control or supervision of the board of registrars or absentee ballot clerk in which absentee ballots are being cast shall be considered polling places.
1. No person shall conduct any exit poll or public opinion poll with voters within 25 feet of the exit of any building in which a polling place is established on any day in which ballots are being cast.
2. Except for credentialed poll watchers, poll workers, and law enforcement officers, poll managers may manage the number of persons allowed in the polling place to prevent confusion, congestion, and inconvenience to voters.
No person whose name appears as a candidate on the ballot being voted upon at a primary, election, special primary, or special election, except a judge of the probate court serving as the election superintendent, shall physically enter any polling place other than the polling place at which that person is authorized to cast his or her ballot for that primary, election, special primary, or special election and, after casting his or her ballot, the candidate shall not return to such polling place until after the poll has closed and voting has ceased or other than to transact business with the board of registrars, so long as the person does not violate any other provision of this Code section. Judges of the probate court serving as election superintendents shall enter polling places only as necessary to fulfill their duties as election superintendents and shall not engage in any practice prohibited by this Code section.
This Code section shall not be construed to prohibit a poll officer from distributing materials, as required by law, which are necessary for the purpose of instructing electors or from distributing materials prepared by the Secretary of State which are designed solely for the purpose of encouraging voter participation in the election being conducted.
Any person who violates this Code section shall be guilty of a misdemeanor.

(Ga. L. 1956, p. 333, § 1; Ga. L. 1961, p. 557, § 1; Code 1933, §§ 34-1307, 34-1938, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 308, § 3; Ga. L. 1977, p. 174, § 1; Ga. L. 1978, p. 1039, § 1; Ga. L. 1984, p. 674, § 1; Ga. L. 1985, p. 632, § 5; Ga. L. 1986, p. 32, § 1; Ga. L. 1986, p. 382, § 4; Ga. L. 1988, p. 647, § 3; Ga. L. 1989, p. 1084, § 3; Ga. L. 1993, p. 712, § 1; Ga. L. 1994, p. 1406, § 25; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 41; Ga. L. 2003, p. 517, § 47; Ga. L. 2005, p. 253, § 58/HB 244; Ga. L. 2010, p. 914, § 22/HB 540; Ga. L. 2012, p. 995, § 31/SB 92; Ga. L. 2016, p. 173, § 5/SB 199; Ga. L. 2017, p. 697, § 19/HB 268.)

The 2010 amendment, effective July 1, 2010, in the introductory language of subsection (a), inserted "or display" near the beginning, inserted "paraphernalia," near the middle, and inserted "solicit signatures for any petition or" near the end, and substituted "day in which ballots are being cast" for "primary or election day"; deleted former subsections (b) through (d); redesignated former subsections (d.1) through (h) as present subsections (b) through (f), respectively; in subsection (b), inserted "board of" and "being"; and added "or other than to transact business with the board of registrars, so long as the person does not violate any other provision of this Code section" at the end of the first sentence of subsection (d).

The 2012 amendment, effective July 1, 2012, substituted "Reserved." for the former provisions of subsection (c), which read: "No person shall use a cellular telephone or other electronic communication device once such person has been issued a ballot or, in the case of precincts using voting machines or electronic recording voting systems, once the person has entered the voting machine or voting enclosure or booth. This subsection shall not prohibit the use of cellular telephones by poll officials."

The 2016 amendment, effective April 26, 2016, substituted "material" for "literature, newspaper, booklet, pamphlet, card, sign, paraphernalia, or any other written or printed matter of any kind" near the middle of subsection (a).

The 2017 amendment, effective July 1, 2017, substituted ", nor shall any person, other than election officials discharging their duties, establish or set up any tables or booths" for "or conduct any exit poll or public opinion poll with voters" in the middle of subsection (a); and substituted the present provisions of subsection (c) for the former provisions, which read: "Reserved.".

Cross references.

- Prohibited placement of posters, signs, and advertisements, § 16-7-58.

Further provisions regarding prohibited activities in vicinity of voting compartment or voting booth, § 21-2-568.

JUDICIAL DECISIONS

Constitutionality.

- The U.S. Court of Appeals for the 11th Circuit found that a Florida electioneering statute was narrowly tailored to protect the compelling state interest of citizens to vote free from intimidation, interference, and fraud, and did not violate the First Amendment by banning exit solicitations about non-ballot issues within 100 feet of polling places; accordingly, the district court abused the court's discretion in granting a preliminary injunction. Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213 (11th Cir. 2009).

O.C.G.A. § 21-2-414(a) infringed upon the first amendment's protection of political speech; however, a 25-foot limit on campaign and polling activities withstands constitutional scrutiny, and enforcement beyond that limit would be permanently enjoined. NBC v. Cleland, 697 F. Supp. 1204 (N.D. Ga. 1988) (decided prior to 1993 amendment of this section).

Preliminary injunction against enforcement of O.C.G.A. § 21-2-414(b) was issued, where court was of the opinion that plaintiff challenging the statute on constitutional grounds would prevail at a final hearing. Committee for Sandy Springs, Ga., Inc. v. Cleland, 708 F. Supp. 1289 (N.D. Ga. 1988).

Cited in Stiles v. Earnest, 252 Ga. 260, 312 S.E.2d 337 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the provisions, opinions under former Code 1933, § 34A-1206 are included in the annotations for this Code section.

Candidate appearing at a polling place other than the candidate's own on election day is not prohibited by the Georgia Election Code, O.C.G.A. T. 21. Ch. 2, or the former Georgia Municipal Election Code. 1977 Op. Att'y Gen. No. 77-72 (decided under former Code 1933, § 34A-1206).

Scope of area and activity open to campaign worker during election.

- Except where there are no attempts at electioneering, it is legal for a candidate or a candidate's campaign worker to be present in a polling place, but outside an enclosed area during an election or to be present outside the polling place, but within a 250-foot limit, but it is illegal to engage in noncommunicative but otherwise campaign related activity, specifically, observing voters and checking a voters list, outside the polling place but within the 250-foot limit. 1982 Op. Att'y Gen. No. 82-30 (decided prior to 1989 amendment to subsection (b)).

Soliciting signatures on a petition for referendum is permissible within 250 feet of the polling place. 1968 Op. Att'y Gen. No. 68-370 (decided prior to 1989 amendment to subsection (b)).

Compilation of list of electors not solicitation.

- The compilation of a list of names for the purpose of determining the identity of electors who have not voted, so that transportation can be furnished to such electors, is not itself an activity which would, without more, amount to a solicitation of votes within the meaning of this section. 1967 Op. Att'y Gen. No. 67-45 (see O.C.G.A. § 21-2-414).

An offense under O.C.G.A. § 21-2-414 would not be designated as one which requires fingerprinting. 1998 Op. Att'y Gen. No. 98-20.

Fingerprinting.

- The Georgia Crime Information Center is not authorized to collect and file fingerprints of persons charged with a violation of O.C.G.A. § 21-2-414. 2001 Op. Att'y Gen. No. 2001-11.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 352.

C.J.S.

- 29 C.J.S., Elections, §§ 319, 320.

ALR.

- Validity, construction, and application of state statutes regulating solicitation or exit polling near voting precincts, 65 A.L.R.6th 441.

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