by T. Edwin Walker, Independent Program Attorney for Texas Law Shield
Election Day is November 8, 2016. America’s next President will be chosen on that day (notwithstanding a repeat of the elections of 1824 or 2000). On the surface, Texas law prohibiting firearms, clubs, and illegal knives at polling places, both on Election Day and during early voting, is very clear and straightforward. Texas Penal Code Sec. 46.03 states:
- A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
(2) on the premises of a polling place on the day of an election or while early voting is in progress;
However, the Texas Penal Code is silent on exactly what is the scope of a “polling place.” Clearly the common definition includes the place where someone casts a ballot, but when we are talking about the possibility that a handgun license holder could be charged and convicted of a felony, the stakes are very steep, so it is important to try and figure out exactly where the line is drawn.
One would think that the Texas Election Code would have a statutory definition for “polling place” that we could use in interpreting the penal code; however, there is not. There is an election code violation for Electioneering and Loitering near a Polling Place, and a prohibition on using electronic recording devices and wireless communication devices near a voting station. Both of these statutes prohibit activities within 100 feet of a polling place or voting station.
If these laws regulate activities “near” a polling place, then that would logically mean that this area is not actually the polling place (otherwise it would just say, “polling place!”). A search of the case law unfortunately reveals that there have been no Texas appellate court opinions that construe the weapons at polling places prohibition. So, while we could make an argument as to what a polling place is, unfortunately, it’s just an argument. It would take a criminal charge going to trial, a defendant getting convicted, appealing the conviction, and then we would have an answer. Life is hard enough as it is, much less without living through a criminal trial, being sentenced to prison, and then enduring the appeal process.
Therefore, the best practice is to avoid taking a weapon into any area where the election judge has authority to control. That would include the 100-foot area surrounding the polling place where the “No Campaigning Beyond This Point” placards are located. While this area is not actually the “building or portion of a building,” it is a violation of Texas Election Code Sec. 61.003 to loiter in this area; therefore, to be in this area while not actually participating in voting may be problematic, and you therefore will draw more unwanted attention if you are loitering while armed.
Also remember, if the polling place or early voting place is located in a place where the possession of firearms or weapons is otherwise prohibited by law, for example a school, courtroom, or bar, then that prohibition would be in effect as well.
So, what are you supposed to do with your firearm, club, or illegal knife while you are voting? Texas Penal Code Sec. 46.03(a)(2) uses the word “premises” in relation to the polling place. The definition of “premises” specifically states that this includes buildings and portions of buildings, but specifically excludes parking lots, sidewalks, walkways, and parking garages. Therefore, we can deduce that it is perfectly legal to carry a weapon in your vehicle while parked at the polling place, but leave it if you intend to walk into a building and vote.