Election unrest: Are you prepared?

October 21, 2020
By Terry Pickering, TAC Law Enforcement Consultant
Risk Management News

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Early voting has begun in Texas. Many counties are seeing not only a record number of registered voters but also record turnouts at polling locations. Lines of voters waiting to cast a ballot have been seen wrapping around buildings or city blocks, and in some locations, those waits can be a couple of hours. This election cycle is one of the most emotionally charged and contentious in recent history. With all the negativity, finger-pointing and fearmongering by both political parties coupled with the recent civil unrest regarding racial injustice, the COVID pandemic and other stressors, the probability of election unrest is high. If your community should experience an outbreak of demonstrations, protests, riots, etc., are you prepared? Are you prepared to ensure the safety of the community while protecting the rights of people to peacefully exercise their First Amendment rights? Keep in mind that the first line of response is local law enforcement.

Experts note that due to the high percentage of mail-in ballots this election, it’s likely that there won't be a clear winner on election night, and a winner may not be decided for several weeks. Accordingly, we should anticipate and prepare for protests growing in size, frequency and intensity possibly into next year. Some experts predict that some level of civil unrest will occur regardless of the election outcome.

If you haven't already developed response plans, it's not too late. Plans should encompass a current or immediate assessment of what you should be doing now or in the first weeks of early voting, short-term plans focusing on the days immediately proceeding Election Day, Election Day itself and the days immediately following, and long-term plans for the days, weeks and possibly months following. Attached is a document prepared by the Crime and Justice Institute that may assist you in making plans or preparations. It is important that there be frequent communication between election officials, law enforcement and key county government officials about what information has been received, observations at polling locations, perceived or known issues, threats and potential risks.

To prevent any suggestion of voter suppression or intimidation, law enforcement should not maintain a presence at polling sites. However, officers should be aware of polling locations and should periodically drive by the sites at a distance to watch for any potential election interference. According to an annual threat assessment from the Department of Homeland Security, "Open-air, publicly accessible parts of physical election infrastructure, such as campaign-associated mass gatherings, polling places and voter registration events, would be the most likely flashpoints for potential violence." The Texas Election Code provides a 100-foot buffer zone around polling locations, but those buffers may prove to be less protective than in the past because social distancing has lengthened voting lines.

Officers should be briefed and have an understanding of the types of situations they may be called upon to resolve at the polling site. Here are some election code provisions that each officer should be familiar with:

Use of Firearms by Law Enforcement

Please note that Section 46.03(a) of the Texas Penal Code generally prohibits a person from bringing a firearm onto the premises of a polling place. However, this prohibition does not apply to a peace officer, regardless of whether the police officer is on or off duty. For this and other potentially applicable exceptions, see Texas Penal Code § 46.15.

NOTE: The passage of House Bill 910 (84th Legislature, 2015), which became effective Jan. 1, 2016, and allowed the open carrying of handguns, did NOT change the law about guns in the polling place; thus no one except licensed peace officers may carry handguns into the polling place. 

Electioneering

Each early voting and election day polling place must be organized with 100-foot distance markers posted at surrounding outside entries to the building. During the voting period and inside this protected area, it is prohibited to electioneer, including expressing preference for or against any candidate, measure or political party. A violation of this provision in the Election Code is a Class C misdemeanor. Texas Election Code §§ 61.003, 85.036.

Regulating Electioneering Outside 100-Foot Marker

An entity that owns or controls a public building being used as a polling place may not prohibit electioneering outside of the 100-foot distance marker. However, the entity may enact reasonable regulations in regard to the time, place and manner of electioneering. Texas Election Code § 61.003(a-1).

Cellphones and Other Wireless Communication Devices

People are not allowed to use wireless communications devices within 100 feet of the voting stations. Additionally, they are not allowed to use mechanical or electronic devices to record sound or images within 100 feet of the voting stations. Texas Election Code §§ 61.014(a), 81.002.

Exit Polling

The policy of the Texas secretary of state is to permit nondisruptive exit polling within the 100-foot boundaries surrounding each early voting and election day polling place. We note that the early voting clerk or presiding judge at each polling place, as appropriate, must determine that such exit polling does not constitute either (1) "loitering" in violation of Section 61.003(a) of the Texas Election Code or (2) a disruption of order, or a contribution to a breach of the peace at the early voting or election day polling place in violation of Section 32.075(a), as applicable to early voting under Section 81.002. Texas Election Code §§ 61.003(a), 32.075, 81.002.

Sound Amplification Devices

It is also prohibited to use a sound amplification device to electioneer within 1,000 feet of the early voting or election day polling place. Under Section 61.004 of the code, a violation of this provision is a Class C misdemeanor.

Petition Signature Gathering

Please be advised that anyone who wishes to gather petition signatures must do so beyond the 100-foot distance markers. Petition signatures for any type of election may not be collected inside the early voting or election day polling place or within the 100-foot distance marker. Petition gathering is considered electioneering for or against a measure, which is prohibited within the 100-foot distance marker. Texas Election Code §§ 61.003, 85.036

If you need further information or clarification, check the secretary of state's website or check with your local elections officials, local legal counsel or TAC Legal Services for assistance.