Kansas Attorney General Opinion 2018-015

October 22, 2018
ATTORNEY GENERAL OPINION NO. 2018- 15
The Honorable Brett Parker
State Representative, 29th District
8323 W. 108th St., Apt. F
Overland Park, KS 66210
Re: 	Elections—Election 	Crimes—Disorderly 	Election 	Conduct; 	Intimidation 	of
Voters; Electioneering
Synopsis: 	The mere presence of a person offering non-partisan voter assistance, or
signage advertising the same, within 250 feet of the entrance to a polling
place does not constitute electioneering so long as such activities do not
include acts prohibited by K.S.A. 2018 Supp. 25-2430(a). The offering of
non-partisan voter assistance or signage advertising such assistance, by
themselves, do not constitute unlawful disorderly election conduct or
intimidation of voters unless the person or persons conducting such
activities also engaged in conduct prohibited by K.S.A. 25-2413 or K.S.A.
2018 Supp. 25-2415, respectively. Whether the offering of non-partisan
voter assistance and education, or the posting of signage advertising a
non-partisan voter assistance hotline or website, constitutes the crimes of
electioneering, 	disorderly 	election 	conduct, 	or 	intimidation 	of 	voters
depends on the facts of each individual case.
A polling place is a nonpublic forum subject to reasonable restrictions on
speech. The election board of each polling place is authorized to guide,
manage, direct, and oversee the polling place to ensure that voting is
conducted in an orderly manner. Cited herein: K.S.A. 25-2413; K.S.A.
2018 Supp. 25-2415; 25-2430; 25-2810.
* 	* 	*

The Honorable Brett Parker
Page 2
Dear Representative Parker:
As State Representative for the 29 th District, you ask our opinion on the following:
1) Whether Kansas law prohibits individuals who are not authorized polling place
workers from being present within 250 feet of the entrance of a polling location
for the purpose of assisting voters who encounter problems casting their ballot
and providing non-partisan information concerning voting rights; and
2) Whether Kansas law prohibits a person from erecting signs within 250 feet of the
entrance of a polling location that solely promote a website or hotline offering
non-partisan voter assistance.
In your letter, you state that during the 2018 primary election, some counties prohibited
individuals from engaging in the activities you describe within 250 feet of the entrance to
a polling place on the grounds that such activities were electioneering. You also clarify
that 	for 	the 	purposes 	of 	your 	theoretical 	questions, 	the 	individuals 	and 	signage
described above would not be affiliated with a particular candidate or ballot question,
and would not be attempting to persuade or influence voters to vote in a particular
manner.
K.S.A. 2018 Supp. 25-2430(a) defines electioneering as follows:
Electioneering is knowingly attempting to persuade or influence eligible
voters to vote for or against a particular candidate, party or question
submitted. 	Electioneering 	includes 	wearing, 	exhibiting 	or 	distributing
labels, signs, posters, stickers or other materials that clearly identify a
candidate in the election or clearly indicate support or opposition to a
question submitted election within any polling place on election day or
advance voting site during the time period allowed by law for casting a
ballot by advance voting or within a radius of 250 feet from the entrance
thereof. Electioneering shall not include bumper stickers affixed to a motor
vehicle that is used to transport voters to a polling place or to an advance
voting site for the purpose of voting.
In general, the mere presence of a person offering non-partisan voter assistance such
as you describe, or a sign advertising such assistance, within 250 feet of the entrance to
a polling place would not constitute electioneering because neither the person nor the
signage would be “attempting to persuade or influence eligible voters to vote for or
against a particular candidate, party or question submitted.”
However, it is possible for electioneering to occur depending on the facts of a particular
case. For instance, an individual offering non-partisan voter assistance might also
knowingly wear or exhibit materials clearly supporting or opposing a candidate, party, or
ballot question. Similarly, signage advertising a voter assistance website or hotline

The Honorable Brett Parker
Page 3
might also clearly identify a candidate in the election. Thus, whether electioneering
occurs depends on what the person or signage is actually doing, rather than what they
claim to be doing.
You also ask whether the non-partisan voter assistance activities you describe would
constitute disorderly election conduct or intimidation of voters. K.S.A. 25-2413 defines
disorderly election conduct as willfully engaging in any of the following activities:
(a) Disturbing the peace in or about any voting place on election day;
(b) leaving or attempting to leave a voting place in possession of any
ballot, except as is specifically permitted by law;
(c) approaching or remaining closer than three feet to any voting booth,
voting machine or table being used by an election board except as
admitted for the purpose of voting or by authority of the supervising
judge;
(d) interrupting, 	hindering 	or 	obstructing 	any 	person 	approaching 	any
voting place for the purpose of voting;
(e) engaging in any of the following activities within 250 feet from the
entrance of a polling place during the hours the polls are open on
election day:
(1) solicitation of contributions; or
(2) conduct 	of 	advisory 	elections 	other 	than 	those 	specifically
authorized by law, including the exercise of home rule power, to be
conducted by a county election officer.
K.S.A. 2018 Supp. 25-2415(a) defines intimidation of voters as follows:
(1) Intimidating, threatening, coercing or attempting to intimidate, threaten,
or coerce any person for the purpose of interfering with the right of
such person to vote or to vote as he may choose, or of causing such
person to vote for, or not to vote for, any candidate for any office or
question submitted at any election; or
(2) mailing, publishing, broadcasting, telephoning or transmitting by any
means false information intended to keep one or more voters from
casting a ballot or applying for or returning an advance voting ballot.
Generally 	speaking, 	the 	mere 	presence 	of 	a 	person 	offering 	non-partisan 	voter
assistance such as you describe, or a sign advertising such assistance, would not fall
within the definitions of disorderly election conduct or intimidation of voters. But again, it

The Honorable Brett Parker
Page 4
is possible for a violation to occur depending on the facts of a particular case. For
example, 	a 	person 	offering 	non-partisan 	voter 	assistance 	who 	willfully 	interrupts,
hinders, or obstructs the path of persons approaching the polling place could be
engaging in disorderly election conduct as defined in K.S.A. 25-2413(d). Likewise,
intimidation of voters could occur if a person offering non-partisan voter assistance
intimidates, threatens, or coerces voters arriving at a polling place.
However, even though the mere presence of a person offering non-partisan voter
assistance, 	or 	signage 	advertising 	the 	same, 	generally 	would 	not 	constitute
electioneering, disorderly election conduct, or intimidation of voters, that does not mean
a person has the right to engage in those activities at a polling place. Although a polling
place is operated by governmental entities, it is considered a nonpublic forum within
which reasonable restrictions on speech are allowed. 1
K.S.A. 2018 Supp. 25-2810(a) states that the election board of each polling place “shall
have control of its voting place and election procedure under the sole supervision of the
secretary of state, county election officer, deputy county election officers and the
supervising judge.” 2 The statute does not define the term “control,” so we apply its
ordinary meaning, 3 which is “[the] power or authority to guide or manage,” 4 or “the
power or authority to manage, direct, or oversee.”5
Thus, the election board of each polling place is authorized to guide, manage, direct,
and oversee the polling place to ensure that voting is conducted in an orderly manner.
The extent to which the state or a local election board may restrict non-partisan speech
in or around a polling place is beyond the scope of this opinion.
To summarize, it is our opinion that the mere presence of a person offering non-partisan
voter assistance, or signage advertising such assistance, within 250 feet of the entrance
to a polling place does not constitute electioneering so long as those activities do not
include acts prohibited by K.S.A. 2018 Supp. 25-2430(a). It is also our opinion that such
activities, by themselves, do not constitute unlawful disorderly election conduct or
intimidation of voters unless the person or persons conducting such activities also
engaged in conduct prohibited by K.S.A. 25-2413 or K.S.A. 2018 Supp. 25-2415,
1 See, e.g., Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876, 1879-80 (2018) (“A polling place in
Minnesota qualifies as a nonpublic forum under the Court’s precedents. As such it may be subject to
content-based restrictions on speech, so long as the restrictions are reasonable and not an effort to
suppress expression merely because public officials oppose the speaker’s view.”) (citations and
quotations omitted). While Mansky dealt only with political speech inside the polling place, the Court in a
plurality opinion previously upheld a Tennessee law that prohibited the solicitation of votes and the
display or distribution of campaign materials within 100 feet of the entrance to a polling place. Burson v.
Freeman, 504 U.S. 191 (1992).
2 See also K.S.A. 2018 Supp. 25-2810(b) (when an election board of five or more members is divided by
the county election officer into a receiving board and a counting board, the receiving board shall have
such control over the voting place and election procedure).
3 See, e.g., State v. Paul, 285 Kan. 658, Syl. ¶ 3 (2008) (“When interpreting statutes, ordinary words are
given their ordinary meanings.”).
4 https://www.merriam-webster.com/dictionary/control, accessed on October 15, 2018.
5 Black’s Law Dictionary (10 th ed. 2014).

The Honorable Brett Parker
Page 5
respectively. 	Whether 	the 	crime 	of 	electioneering, 	disorderly 	election 	conduct, 	or
intimidation of voters occurs depends on the facts of each individual case.
At the same time, a polling place is a nonpublic forum, and K.S.A. 2018 Supp. 25-
2810(a) empowers the election board of each polling place to “control . . . its voting
place and election procedure.”
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Special Assistant Attorney General
DS:AA:SF:sb