Members of media organizations and citizen journalists alike should be cognizant of their rights and legal limitations as they cover election day in Kansas.
Those seeking to cover a polling place are considered to be “visitors” as set forth in Chapter II(f) of the Kansas Secretary of State Election Standards. All visitors are encouraged to “request permission rather than show up unannounced on election day.” There is no reason to believe that such a request would be denied, and the policy appears to be in place more to determine attendance rather than to limit access.
Importantly, the Secretary’s Election Standards also provide that “photographs or videos of ballots or of voters in the act of voting” are expressly prohibited. Although it is unclear whether this regulation is sufficiently narrowly tailored to pass constitutional muster, reporters must keep it in mind.
Moreover, county election officers “have the authority to adopt policies banning cell phones, wireless and Bluetooth devices…and to control the activities of polling place visitors.”
Asking voters how they voted is not illegal because the government cannot assert a compelling reason to restrict the media from asking such questions, and there is no Kansas law prohibiting such conduct.
Finally, the outer limits of how the media may cover polling places is contemplated by a Kansas statute criminalizing “disorderly election conduct.” The law prohibits the following conduct:
- “approaching or remaining closer than three feet to any voting booth [or] voting machine”; and
- “interrupting, hindering or obstructing any person approaching any voting place for the purpose of voting.”
The following are a few common questions that might crop up for both those covering election day and election officials.
Can a photographer be banned from taking photographs of people actually voting if they can be identified?
As per the Secretary of State policy, photos of voters in the act of voting are prohibited, whether they can be identified or not, and election officials are allowed to control activities at polling places. However, reasonable conduct that does not disrupt the voting, is not intimidating, and does not compromise the confidentiality of a vote should not be subject to ban.
Can photographers be prohibited from entering a polling place to take pictures?
No, photographers cannot generally be prohibited from entering a polling place to take pictures, but must be aware that they may take no pictures of actual voters in the act of voting in order to comply with the Secretary’s policy. However, under the policy, “polling places are generally considered a limited public forum for First Amendment purposes, since the use of the site is intended for voting activities only and is not intended to allow a full range of speech and conduct. The extent of First Amendment rights at any particular polling place depends on the circumstances involved.” Thus, county election officers do have the authority to arbitrarily interfere with anyone in the polling place, including the media.
Can a reporter ask a voter outside the polling place how they voted?
Yes. See above.
Can a reporter seek information during Election Day from election officers regarding how many people have voted in a particular polling place compared to the number registered?
There is nothing stopping a reporter from asking an election officer about turnout at any time during Election Day. However, public officials are not required to comment.
Can reporters be banned from being within 250 feet of a polling place?
No. Campaigning is not permitted within 250 feet of the polling place pursuant to the Kansas electioneering statute.
Can reporters go anywhere the public is allowed at the courthouse when votes are being counted?
Yes. Reporters are representatives of and members of the public.
Ultimately, media should not encounter too many difficulties if it requests access to a polling place in advance and gathers news there in a reasonable manner that respects the voters’ rights of privacy and the government’s constitutional authority to regulate activity at the polling place, while still achieving the goal of accountability and transparency in government.
Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition. Send him an email here.