In the wake of the final presidential debate last night, polls suggest that Virginia is poised to be a key state come November 4. If you're a Virginia voter thinking about documenting the big day, Virginia election law may affect your ability to use video or still photography in and around your polling place, as well as your ability to interview other voters at the polls. Virginia conveniently includes most of the relevant restrictions on polling place activities in one statute, section 24.2-604 of the Virginia Code. This provision does three things that may be important to you.
First, section 24.2-604(A) creates a 40-foot "Prohibited Area" around the entrance to the polling place. In this area, you may not (1) "loiter or congregate"; (2) engage in electioneering activities or otherwise attempt to influence any person in voting; or (3) "hinder or delay a qualified voter in entering or leaving a polling place." Given the restrictions on loitering and hindering or delaying a voter, you should not try to interview other voters in the Prohibited Area. Taking photographs and shooting video in this area does not appear to violate section 24.2-604, unless you hinder a voter or stand around long enough to be "loitering." Outside of this 40-foot zone, you are free to take photographs, shoot video, and interview voters (with permission), as long as you are not on someone's private property.
Second, section 24.2-604(D) regulates activities inside the polling room. It does not expressly prohibit the use of cameras or video recorders by voters. Instead, it prohibits activities similar to those outlawed in the Prohibited Area outside: (1) hindering or delaying a voter; (2) giving out campaign material; (3) soliciting or attempting to influence any person's vote; (4) hindering and delaying any officer of election; and (5) impeding the orderly conduct of the election. While the statute is not entirely clear, it looks like it permits you to take photographs or shoot video inside a Virginia polling place, so long as your conduct does not hinder or delay any other voter or otherwise interfere with the voting process. You should also avoid using your camera in any way that might reveal the contents of another voter's marked ballot. See Va. Code § 24.2-607 (making it a crime to "hinder, intimidate, or interfere with any qualified voter so as to prevent the voter from casting a secret ballot").
Photos (examples here, here, and here) from the New York Times Polling Place Project suggest that at least some Virginia poll workers allowed voters to take photographs inside of polling places during the 2008 Primaries.
Third, section 24.2-604(J) gives "representatives of the news media" express permission to "visit and film or photograph inside the polling place for a reasonable and limited period of time while the polls are open." It imposes four restrictions, however: the media (1) must comply with the other restrictions found in section 24.2-604 (relating to prohibited activities in the 40-foot zone and inside the polling room); (2) must not film or photograph any person who specifically asks not to be filmed or photographed; (3) must not film or photograph a voter or a ballot in such a way that divulges how any individual voter is voting; and (4) must not film or photograph the voter list or any other voter record or material at the precinct in such a way that it divulges the name or other information concerning any individual voter. Subsection J also states that "[a]ny interviews with voters, candidates or other persons, live broadcasts, or taping of reporters' remarks, shall be conducted outside of the polling place and the prohibited area."
The statute does not define "representatives of the news media," and the CMLP has not been able to determine whether non-traditional journalists and bloggers fit into this category. I suggest that you contact the Virginia State Board of Elections or your local board of elections for more information (please let us know what you find out). There might be some sort of credentialing process. Regardless of your status, any voter who brings a camera or recorder inside the polling place would do well to honor the restrictions imposed on the media. So, don't get too close to other voters or their ballots with your camera and always honor a request to stop photographing or filming. If you want to do interviews, take it outside the 40-foot zone.
This post is part of our series looking at state election laws that regulate activities at polling places on Election Day. We cover these laws from a general standpoint in the Documenting Your Vote section of our legal guide. As I've said before, we'd love the help of our readers with our election law research. If you know of any other provisions of Virginia law that might affect someone's ability to document the vote, or any cases interpreting Virginia law on these issues, please let us know in the comments. And, if you've got input on election laws in other states, please leave a comment or contact us directly.
Update: A reader helpfully pointed us in the direction of section 24.2-1011 of the Virginia Code, which prohibits carrying "an official ballot or copy thereof beyond or away from the voting booth." Election officials interpret this statute as prohibiting a voter from photographing or videoing his or her own ballot.
Update 2: When we spoke with a state election official, she informed us that, while there is no state statute expressly prohibiting the use of cameras or video recorders inside the polling place, county election officials may adopt rules/policies banning or discouraging the use of this equipment inside of a polling place in order to avoid interference with other voters or the process of voting. Therefore, you should check with your local officials before Election Day if you're interested in using a camera inside the polls.