How do US electioneering prohibitions apply to digital messages?

Question

As far as I understand, in the US, one cannot display political ads and other such near polling places. This is also governed by state law AFAIU.

Does this also cover digital communications? Specifically: If you digitally tell someone who you know is in the line to vote, in the electioneering ban range, to vote in a certain way, does this violate the electioneering laws?

As far as I understand Facebook banned political ads on election day, which may imply that it is indeed electioneering, but I'd like further confirmation.

This interaction I saw on reddit is what inspired me to ask this question:

(In Ohio, apparently the electioneering limits cover anyone in the line to vote regardless of distance.)

Answer 1

massachusetts

The relevant law is in MGL 54 Section 65:

Pasters, commonly called stickers, shall not be posted, circulated or distributed in the polling place, in the building where the polling place is located, on the walls thereof, on the premises on which the building stands, or within one hundred and fifty feet of the building entrance door to such polling place.

So the law specifically addresses physical signs (called "pasters" in the above law) in the immediate vicinity of the polling place, not any communication with voters while voting or waiting in line. Thus, I don't believe that electronic communications with voters is prohibited in any way.

I quickly scanned the titles of the other sections of MGL 54, I didn't see any others that seemed relevant to other forms of electioneering. But I didn't read any of them in full, so if a provision was included in a section whose title doesn't describe it clearly, I would have missed it.

There's a table of electioneering distances at Electioneering Distances by State. It contains references to the relevant laws for each state.

It's also unclear how a more general prohibition could be implemented, unless we prohibit voters from using smartphones near the polling location. If someone sends a text message, they don't know whether the recipient is at a polling place. And political ads on the web and in ads can be viewed by anyone regardless of location. We'd essentially have to clear the Internet of all political advertising for the entire election day.

Answer 2

How do US electioneering prohibitions apply to digital messages?

A comprehensive answer for the US would require reviewing each state's law, but since you included Ohio in the question, it doesn't.

Section 3501.35 prohibits loitering or congregating near polling places. It goes into more detail on specific activities by stating "During an election and the counting of the ballots, no person shall do any of the following:"

(1) Loiter, congregate, or engage in any kind of election campaigning within the area between the polling place and the small flags of the United States placed on the thoroughfares and walkways leading to the polling place, and if the line of electors waiting to vote extends beyond those small flags, within ten feet of any elector in that line;

(2) In any manner hinder or delay an elector in reaching or leaving the place fixed for casting the elector's ballot;

(3) Give, tender, or exhibit any ballot or ticket to any person other than the elector's own ballot to the precinct election officials within the area between the polling place and the small flags of the United States placed on the thoroughfares and walkways leading to the polling place, and if the line of electors waiting to vote extends beyond those small flags, within ten feet of any elector in that line;

(4) Exhibit any ticket or ballot which the elector intends to cast;

These first 4 activities all require physical presence at a polling location to be in violation and therefore clearly do not apply to a remotely sent text message. The fifth element listed could be argued to apply when you consider the law says "no person shall do any of the following:"

(5) Solicit or in any manner attempt to influence any elector in casting the elector's vote.

However, this 5th element must be considered within the context of the others: Clearly the intent of the law is to prohibit voter intimidation and influence via active electioneering at the polling place. Passive receipt of a message on an electronic device in your pocket has far less effect than a sign wielding campaigner chanting in your face from 11 feet away. (which surprisingly would apparently be legal outside the flags?!)

The first "attempt to influence" might be nothing more than a buzz in your pocket that you can easily ignore, but the other could be a very intimidating experience.

Truly, if the intent is to block anything remotely influential you'd have to prohibit all political advertising during any time someone might be in line for voting for fear they could view it on a portable electronic device. A reductio ad absurdum example for states with mail in ballots would mean you'd have extend that ban back to the time mail in ballots become available. (Which I actually don't oppose!)

Finally, to make a case of electioneering against some person or campaign office you'd have to prove intent to specifically target people in line at a polling place. A widely broadcast (and easily ignored) spam message such as "Vote for Bob" would lack the mens rea to be prosecuted under the Ohio state law as it is currently written.

For more information on the history and purpose of electioneering laws, please read this article.

Answer 3

Posting as an answer per the OP's request.

Digital space is very hard to regulate. Ohio specifically has a blanket prohibition (see below), but what can the law enforcement actually do about it?

Laws apply within the state jurisdiction. If I'm in China, Ohio laws mean nothing to me and I'll post whatever I want on Reddit and send whatever electronic messages I want.

On top of that, the enforcement of electioneering laws is fairly simple - LEOs are posted at polling places and keep electioneers away. Enforcement in the digital space would be significantly more complicated, if not impossible without outright censorship and 1st amendment violations. If anything, you're more likely to find examples of violation prosecutions, not preventative actions. Even that, I'm not familiar with actual real-life examples.

In your example, how do you prove that there was actually a violation? You'll need to find the OP, prove that they were in fact in line in Ohio at a polling place, find the electioneer, prove that they were in fact in Ohio when posted the message, and prove that the latter knew for a fact that the former is not lying. I don't know if it's possible to do any of that without any reasonable doubt about any of these facts, even if technically and legally feasible.

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Addressing the comments:

• Distance from the polling place refers to the electioneer - this is not as certain as the commenter thinks. The laws seem to be assuming physical presence, and from the ones I looked at it is not clear if the distance is to be measured to the electioneer, the voter, or the interaction. So in case of in-person interaction it's not an issue since they are all in one place, but for electronic transmissions they can all be different points in space. Ohio law specifically has a blanket prohibition of an action:

(A) During an election and the counting of the ballots, no person shall do any of the following:

...

(5) Solicit or in any manner attempt to influence any elector in casting the elector's vote.

• Being located outside the jurisdiction doesn't matter because extradition may be requested - this is incorrect. To succeed in extradition request the requesting state (Ohio in this example) would have to prove that the suspect has been under the local jurisdiction when the offense was committed, which in the scenario I described would be unlikely. See a related discussion here.