Jurisprudence

Why Do States Ban “Electioneering” but Allow Guns at Polling Places?

Nothing in the Constitution says we have to allow this.

Armed men with bandannas over their faces stand in front of the Georgia State Capitol building.
Supporters of Donald Trump host a “Stop the Steal” protest outside of the Georgia State Capitol building on Nov. 21. Megan Varner/Getty Images

As Georgians head to the polls to determine the future of the U.S. Senate, they will have to leave something behind. Unlike most states, Georgia prohibits guns in and around polling places, a commonsense rule that more states should adopt before our next election cycle.

Polling places are already heavily regulated in a variety of ways to preserve what the Supreme Court has called an “island of calm” for voters. All states prohibit “electioneering” at polling places—acts that can include campaigning, displaying signs, or even wearing campaign clothing in or near voting sites. But only six states and the District of Columbia prohibit open carry of firearms at polling places and just a handful of others prohibit concealed carrying (though additional restrictions may apply if, for example, the polling place is in a school or other building where guns are already prohibited).

Advertisement
Advertisement
Advertisement

The result is that a voter might be legally prohibited from wearing a button bearing an NRA slogan but permitted to carry an actual gun. Neither the Constitution, nor history, nor policy considerations require this paradoxical state of affairs.

In states without a bright-line rule, gun carriers must still comply with legal prohibitions against voter intimidation and brandishing a weapon as a threat. But those laws require the government to make discretionary calls about, for example, whether a particular individual is intimidating. Such judgments are prone to racial and other forms of bias, while also leaving gun owners subject to the whims of local officials. That is one reason electioneering rules are written in bright-line fashion.

Fortunately, the November election was not marred by gun violence. Most gun owners are responsible, and few would even think to take a gun with them to a polling place. But some Trump supporters showed up to polling sites with guns, while private militias and other groups have displayed arms and leveled threats at lawmakers. The stakes are high: Even one violent incident could not only claim lives but deter countless would-be voters from venturing to polling places in the future. Such harms to the body politic—the chilling effect that guns can have on others’ constitutional interests—are often overlooked in the gun debate, which tends to focus exclusively on body counts. But gun laws are designed to do more than protect physical safety alone. They can and do also help preserve public order and the freedom of others to assemble, speak, worship, and vote without intimidation.  

Advertisement
Advertisement

Attempting to address concerns about guns and voter intimidation just before the November election, Michigan Secretary of State Jocelyn Benson issued an order banning firearms in and within 100 feet of polling places. Gun rights advocates immediately challenged the rule in court, and a state appellate court later struck down the ban for administrative law reasons unrelated to the Second Amendment. But the constitutional issue is likely to come before the courts again.

When it does, gun rights advocates might raise the common complaint—repeatedly advanced by Justice Clarence Thomas, among others—that the Second Amendment is treated as a second-class right. But at least with regard to voting booths, that argument has things exactly backward: Guns in polling places are less regulated than even core political speech. The Supreme Court has consistently upheld electioneering bans and should do the same for an analogous gun restriction.

Advertisement

In District of Columbia v. Heller, the Supreme Court established that the Second Amendment protects an individual right to keep and bear arms for certain private purposes. But Justice Antonin Scalia’s majority opinion explicitly acknowledged the constitutionality of laws prohibiting carrying of firearms in “sensitive places such as schools and government buildings.”

Historical experience confirms the reasonable conclusion that polling places are “sensitive places.” Even before the Constitution was ratified, states had laws restricting firearms in election-related contexts, and those laws were upheld in court. As the Georgia Supreme Court wrote in an 1874 decision in Hill v. State: “The practice of carrying arms at courts, elections and places of worship, etc., is a thing so improper in itself, so shocking to all sense of propriety, so wholly useless and full of evil, that it would be strange if the framers of the constitution have used words broad enough to give it a constitutional guarantee.”

Advertisement
Advertisement
Advertisement

Such prohibitions were adopted to address real harms. During and after Reconstruction, guns were often used to scare Black voters away from the polls. That history of racialized, armed voter intimidation is not a distant memory. Under a 1982 consent decree, the Republican National Committee agreed to refrain from sending squads of armed people to patrol polling places in Black and Latino neighborhoods—patrols ostensibly designed to prevent voter fraud, but with the effect of intimidating and deterring would-be voters. That decree, however, is no longer in effect, even as overheated rhetoric about ballot security and voter fraud, combined with a substantial spread in armed political protests, raises a similar set of risks today.

There are already too many impediments to voting in the United States. This is one that can be readily addressed before we are in the heat of the next election cycle. The Constitution does not stand in the way.

Advertisement