Five Things to Know About Election Participation as November 5 Approaches

At a Glance

• There are complicated rules around making political contributions, including restrictions on corporations and tax-exempt organizations, activity by foreign nationals, soliciting contributions, using company resources for fundraising, bundling contributions as part of a fundraising event, pay-to-play/time/place/manner restrictions and contribution limits, giving political funds to associations and other nonprofit organizations, and independent corporate spending on electioneering communications as opposed to making contributions to candidates.
• Providing incentives to people to register to vote or to vote is highly regulated by federal and state law, and whether you or your business get hassled by the law for your attempt at civic promotion may depend on the enforcement posture of relevant state and local authorities and whether your efforts seem to be having the effect of aiding one side or the other.
• Not all states require employers to provide their employees time off to vote, but most do. Some even require paid leave.
• Companies should exercise caution in implementing election volunteering programs. It is one thing to allow employees the freedom to work in partisan efforts on Election Day and another thing to use company resources to organize or direct those activities. The latter may implicate in-kind contribution rules or be prohibited corporate contributions — depending on the facts, of course.
• It is important to be aware of the laws, rules and norms that govern polling place access and conduct.

As general Election Day approaches, businesses, corporate executives and employees may take opportunities to become involved in the administrative and political processes central to determining the outcomes of local, state and federal elections. With the frenzy of the final months before Election Day, today’s polarized political climate and different election laws in every state — not to mention laws applicable to federal elections — even the best-intentioned may run afoul of the rules. And many states have changed aspects of their election laws over the past four years, leading to litigation, confusion and acrimony in many places. Here are five things to think about as you, your business or your employees choose to participate in the electoral process.

1. Contributions

You are one of the lucky ones if you don’t receive 50 emails or texts each day asking you to contribute $5 or $500 to a candidate, political party or political action committee. Contrary to the emails’ assertions, the world really won’t end if you don’t give. But if you decide to donate, keep some basic rules in mind:

• Corporations cannot lawfully make contributions to federal candidates. Corporate contributions to state and local candidates may be prohibited or capped in state elections too; that’s primarily a question of state law (including what counts as a “corporation” — for example, in some states, business entities such as limited liability companies are not considered corporations for this purpose).
• Nonprofit corporations are considered corporations for purposes of federal campaign finance restrictions, and the rules governing other political contributions by nonprofits are set by not only state law but by the Internal Revenue Code’s regulation of tax-exempt entities (most commonly at issue are 501(c)(3), 501(c)(4) and 501(c)(6) organizations).
• Contributions of individuals and other classes of donors are capped in federal elections. State laws vary on the amounts individuals can give to candidates and political action committees, with some being completely unrestricted.
• Foreign nationals may not make contributions or spend money in federal, state or local elections.
• Be wary of “pay-to-play” restrictions, which not only restrict contributions made by government contractors or companies in highly regulated industries, but sometimes their affiliated entities and individuals. A personal contribution made by an executive, for example, could jeopardize their employer’s government contracts.
• Always contribute your own money, not someone else’s (nor may a corporate executive, for example, get reimbursed by the company for making a contribution). Never agree to any sort of arrangement to mask the identity of a donor. In most situations, these types of activities are subject to criminal penalty.
• Political contributions are not limited to checks or credit card payments made directly to campaigns. Providing anything of value in connection with influencing an election (such as buying food or contributing space for a political fundraiser) is usually considered an in-kind contribution that counts toward contribution limits, is publicly disclosed, and is otherwise treated the same as a monetary contribution.
• And remember that most contributions to candidates or political committees are reported on campaign finance filings, which must be filed by the recipient committees; so come to terms with your identity as a donor being known.
• There are complicated rules governing lots of other related issues: soliciting contributions, using company resources for fundraising, bundling contributions as part of a fundraising event, time/place/manner restrictions, giving political funds to associations and other nonprofit organizations, and independent corporate spending on electioneering communications as opposed to making contributions to candidates.

2. Gifts for Voter Registration / Voter Participation

There seems to be an uptick in the number of employers, nonprofit organizations and other organizations interested in providing incentives to people to register to vote or to actually cast their ballots. For most, this is an impulse that comes from interest in expanding civic participation. But in most situations, following through on that impulse creates significant legal jeopardy.

First, it is illegal under federal law to pay someone to register to vote or to cast a ballot — even if you are not trying to influence the person’s choice of candidate. State laws vary on this point or are unclear in many circumstances; but if a federal candidate appears on a ballot, regardless of what state law says, you cannot provide an incentive to someone to register to vote or cast a vote.

It is not always clear what thing of value conferred will constitute payment within the meaning of state or federal law. Clearly, cash is out. But what about free pizza as part of the voter registration drive? Can you give water to voters standing in line to vote on Election Day? What about a prize to an organization whose employees, members or students have the highest voting percentage?

What about giving free rides to polls? This one is such a well-worn tradition, it would be somewhat surprising if it were to be made an issue; although a few years ago, one state attorney general scuttled a plan for free bus service to the polls as illegal.

Though some may view these examples as trivial, these have become very hot button legal issues. In many cases, the answers are not easy or intuitive. Whether you or your business face risk of legal liability for your attempt at civic promotion may depend on the enforcement posture of relevant state and local authorities and, in some instances, whether your efforts seem to be having the effect of aiding one side or the other.

3. Allowing Time Off to Vote

Federal law does not require employers to allow employees time off to vote in elections (or to register to vote), except that federal employees are now allowed up to four hours to vote or serve as poll workers.

Not all states require employers to provide their employees time off to vote, but most do. Some even require paid leave. This can be easily checked with online resources in each state.

4. Company Volunteering Programs

Some businesses, especially larger ones with significant resources, have offered their employees paid leave on Election Day to work at the polls or assist with election administration and other volunteer duties. (Many public sector employees whose jobs aren’t election-related also get the day off to work the polls.) Employers should ensure that they are implementing these policies in a lawful manner to avoid running afoul of election laws.

One threshold decision is whether this policy is open-ended or part of a specific program. For example, it is relatively straightforward to offer paid leave to all employees who volunteer to be poll workers or other nonpartisan officials in connection with the elections. The employer might simply require proof of the volunteer role. But should the laissez-faire approach extend to time off to drive voters to the polls or to nonpartisan get-out-the-vote programs? What about working on Election Day as a political party official or precinct captain? What about working on target get-out-the-vote programs for a candidate who is on the ballot?

In determining the scope of volunteer policy, employers could consider the answer to this question: Is the policy mainly to provide an employee benefit to be used in the wide discretion of the employee? Or is it meant to focus the company’s human resources on assisting with election administration? One note of caution: it is one thing to allow employees the freedom to work in partisan efforts on Election Day and another thing to use company resources to organize or direct those activities. The latter may implicate in-kind contribution rules or be prohibited corporate contributions — depending on the facts, of course.

Additionally, some employers volunteer their legal staff to nonprofit or government-sponsored voter assistance programs. The most well-run of these programs have scores of lawyers answering phones, and logging voter and poll worker complaints and issues in web-based election management systems both for immediate problem-solving and after-action review and analysis. This type of volunteer activity should receive plaudits and not legal concern so long as the participants heed the cautions in the next section.

5. Election Day at the Polls

It is important to be aware of the laws, rules and norms that govern polling place access and conduct. Election administration is more complicated than you might think. Here are a few top-level points to consider:

Interference with Voting/Poll Workers

The best poll workers and election administrators are problem solvers, whether they are paid election administrators or volunteers. Increasingly, they are targets of scorn, abuse and even violence. Most states have laws that make interference with voting and poll workers’ duties a crime. And with threats against poll workers and election officials at an all-time high, the U.S. Department of Justice has created an Election Threats Task Force to monitor and enforce laws to combat election interferences and related violence.

“Voter Protection” and “Voter Integrity”

Owing to historic suppression of some citizens’ voting rights and to allegations of voting fraud, there are many organizations — some long-established, some new and some opaque entrants to the election fray — that serve as on-the-ground defenders of their causes and constituencies. It’s hard to tell the players without a scorecard: Who is the organization serving? At a minimum, companies and individuals should heavily vet any organization before agreeing to assist it with Election Day operational activities.

Credentials

Part of what can make polling places chaotic is sorting out who is allowed access and to what extent. Most states have laws that assign specific duties to various poll workers and election officials and describe where they can be physically, what materials they can handle, and how they may interact with voters. It is someone’s job to “police” the polls for proper versus improper access; and, usually, credentials are the key. In many situations it may be a crime to impersonate an election official or remain in a polling place without proper authority after being asked to leave.

Electioneering

Most state laws restrict campaigning or “electioneering” in certain proximity of the polls. While state laws are often reasonably clear about where the physical line is drawn, in recent years conflict has arisen about wearing clothes or buttons with candidate names or campaign slogans — culminating in a case in the U.S. Supreme Court (Minnesota Voters Alliance v. Mansky), which struck down Minnesota’s polling-place political-apparel law.

Photos of Ballots/Voters

Many states have laws that prohibit or regulate taking photos of ballots and, in some cases, voters in line at polling places. This issue is generally referred to as “ballot selfies” and even applies to taking a photo of one’s own completed ballot to post on social media. It might be counterintuitive from a free-speech standpoint, but many states make that practice unlawful. The National Conference of State Legislatures has a state-by-state survey of that issue.

Weapons

Simply put, most states do not have laws that expressly restrict open or concealed carry of firearms at polling places. Or, at the very least, it can be said that state laws are often murky. A few states expressly restrict possessing firearms at polling places. In many contexts, there are other state laws that may make the question a patchwork — e.g., is a particular polling place a school at which firearms are prohibited or a private business that has posted a notice banning firearm possession on the property?