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Attorney General Opinion 20-046

Tosta Dojen

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Jul 23, 2008
Messages
183
Location
Roanoke, Virginia, USA
A few weeks ago, Attorney General Mark Herring issued Opinion 20-046, which addresses "conduct at polling places that intimidates or harasses voters". It never actually states any definite conclusion, but suggests that open carry at the polls might be illegal.

Opinion 20-046 said:
[T]here have been reports of activity near polling places that led some voters to fear for their safety while waiting to cast their vote, or led them to believe that they would be harmed for supporting a particular candidate.

[...]

Both state and local law protect citizens from violent threats and in particular from being threatened with firearms. It is a criminal offense in Virginia "to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured."

[...]

Accordingly, it is my opinion that [this conduct] could violate state and/or federal law if it threatens or intimidates voters casting their ballots at polling places.
 

Doug_Nightmare

Active member
Joined
Nov 21, 2018
Messages
557
So much for the Guarantee Clause of COTUS. Does Virginia Constitution guarantee a democracy?

¶2. In our democratic system of governance, ...
 

OC for ME

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White Oak Plantation
..."possession" is the key term depending on the location of the polling place. If VA statute does not prohibit OC, or CC, at some polling places...seems like OC/CC is prohibited in any event...you'll need a boat load of C-notes to fight this "opinion"....
 

color of law

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Oct 7, 2007
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Cincinnati, Ohio, USA
The opinion may indirectly imply that one right supersedes other rights. In effect, the AG is saying your rights are not on an equal footing. But I think that is a stretch.
AG's conclusion:
The legitimacy of our government-and its success in fulfilling the promises of our Constitution-rely on the notion of uncoerced choice. Virginia and federal law protect the fundamental right to vote freely. Accordingly, it is my opinion that the conduct you describe could violate state and/or federal law if it threatens or intimidates voters casting their ballots at polling places.
The conclusion deals with the "intimidation of voters", not the carrying of firearms. But it leaves open what intimidation means. What is the base line? Well, many courts have ruled that where Open Carry is legal the Fourth Amendment applies. The base line has been established.
 
Last edited:

Eeyore

Regular Member
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Aug 25, 2007
Messages
550
Location
the meanest city in the stupidest state
The conclusion deals with the "intimidation of voters", not the carrying of firearms. But it leaves open what intimidation means. What is the base line? Well, many courts have ruled that where Open Carry is legal the Fourth Amendment applies. The base line has been established.
This. The opinion discusses behavior, not possession. They are, rightfully, concerned about d-bags from either/both sides harassing opponents trying to vote. Does it ban open or concealed carry near polling places? No. Does it muddy the waters such that some precious snowflake who faints at the mere mention of a gun screeching at the top of his/her/its lungs that "HE'S INTIMIDATING ME!!!" might get the reaction--either from LE or just on social media lunacy--that they're hoping for? Possibly.
 

Tosta Dojen

Regular Member
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Jul 23, 2008
Messages
183
Location
Roanoke, Virginia, USA
Does it muddy the waters
That's the part that troubles me. The opinion is suggestive but ultimately unclear in its application. The conclusory paragraph says that the conduct Delegate Simon describes could constitute a violation of law. Maybe. Possibly. And what was that conduct? The opinion doesn't say. It's mentioned as "activity near polling places that led some voters to fear for their safety", which is a description completely devoid of any detail. It's not even clear whether any firearms were present during that activity.
 

solus

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Aug 22, 2013
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8,781
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here nc
Sigh...From the Honorably VA AG's website...quote

IMPORTANT NOTE: Official opinions represent the attorney general’s analysis of current law based on his thorough research of existing statutes, the Virginia and United States constitutions, and relevant court decisions. They are not "rulings" and do not create new law, nor do they change existing law. Creating and amending laws are the responsibility of the General Assembly, not the attorney general.

The official opinions issued by the attorney general are part of the duties of the office (see Code § 2.2-505). A person authorized by statute, such as the governor, a member of the General Assembly, a constitutional officer, or the head of a state agency, can ask the attorney general for an official opinion on the law. Members of the general public are not authorized to ask for opinions. Unquote


you should take your dissatisfaction up with the requestor the Honorable Marcus B. Simon, Member, Virginia House of Delegates not the VA AG per [https://www.oag.state.va.us/citizen...pinions/1632-2020-official-opinions#september]
 
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