Recent Legislation on Municipal Electioneering Regulations

City responses to recently passed electioneering legislation are drawing attention from the bill’s author.  House Bill 259 (Ron Simmons, R - Carrollton), passed during the 2013 legislative session, prohibits a city that owns a building used as a polling place from restricting electioneering during early voting and on Election Day, including the posting, use, or distribution of political signs or literature on the building’s premises outside of the 100-foot statutory electioneering limit.   However, it was amended late in the process to allow a city to enact reasonable regulations concerning the time, place, and manner of electioneering.

According to a recent release by the bill’s author, the new law protects fundamental freedoms:

House Bill 259, signed into law by Governor Perry after the 2013 Legislative Session, protects the First Amendment rights of individuals that protects political speech. Specifically, H.B. 259 clarifies that electioneering (political speech) must be allowed at polling places. The bill prohibits an entity that owns or controls a public building being used as a polling place from prohibiting electioneering on the building’s premises outside of the 100-foot zone where electioneering is prohibited by state law.

“This change in law protects First Amendment rights by assuring that people are able to express their political views without fear of prosecution or persecution,” said Representative Ron Simmons, the author of House Bill 259.

No longer will people across the state be ticketed or arrested for acts such as holding campaign signs at polling locations.

“Language was specifically included in the bill to authorize reasonable time, place, and manner restrictions on electioneering conducted outside of the 100-foot marker, so long as electioneering is not prohibited altogether,” said Simmons. “H.B. 259 protects some of our nation’s most fundamental rights: the freedom of speech and the right to vote.”

The 2014 primary election that began today with early voting around the state is the first election cycle since the passage of House Bill 259.

Some cities have questions regarding how to implement the new law.  The issue is whether reasonable time, place, and manner restrictions could be interpreted as unreasonably limiting what the author calls a “fundamental freedom.” 

For example, does a candidate or her supporters have the right to block traffic in the parking lot of a city building being used as a polling place?  Does a person have a right damage the lawn of a city facility by placing numerous signs in the ground?  What about a campaigner who makes it difficult for voters to get to the polling place?  Does it ever make sense to ticket or arrest a person near a polling place?

The answer to those questions is best left to each city to decide, within the limits of the legislation.  Of course, in making those decisions, city officials should remain cognizant of two things: (1) the right to freedom of speech, balanced with protecting the right to vote; and (2) the potential for further legislative reaction to city regulations that are deemed as impeding a campaigner’s right to freedom of speech.  

The first item should be carefully considered in light of advice from each city’s attorney.  The second should be considered in light of the fact that cities are, indeed, creatures of the state.  As such, the legislature can limit municipal authority completely in most instances.  That has happened in this arena before.  In 2003, the legislature enacted Local Government Code Section 216.903.  That section, enacted in response to a legislator’s displeasure with a city’s regulation of political signs on private property, all but preempts municipal authority in that area.

City officials with questions about H.B. 259 can contact Scott Houston, TML general counsel, at 512-231-7464 or shouston@tml.org.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.

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