INDIANAPOLIS, Ind. — A FOX59 inquiry of a law professor, the Secretary of State, a Second Amendment attorney and Marion County election officials about the legality of guns in Indiana polling places led to blank stares, confusion, misdirection and legal head scratching.
Over the course of four days earlier this month, Donald Trump challenged gun owners to do something about what he termed Hillary Clinton’s plans to, “essentially abolish the Second Amendment,” and also called on poll watchers to prevent what he’s predicting to be a “rigged” election.
“I would really be hopeful that anyone trying to make a point about exercising their Second Amendment rights would do that in a respectful way that wouldn’t in any way interfere with anyone’s right to vote,” said Carmel attorney Guy Relford who won a landmark voting-while-armed lawsuit following the 2012 primary election.
Relford’s client, an armed veteran, was denied his right to vote in a St. Joseph County fire station one year after state lawmakers passed pre-emption legislation essentially permitting Hoosiers to carry firearms in public with very few exceptions.
“There’s no law that says you can’t take a gun into a fire station,” said Relford, “and there’s no federal or state law that says you can’t carry a gun into a polling place.”
Four years later, uncertainty still surrounds the rights of gun owners to vote or stand watch at a polling place while armed.
Dr. Jody Madeira of the Indiana University Maurer School of Law said, for the most part, when it comes to enforcing gun laws at polling places, such as stopping armed citizens from engaging voters outside the location or even standing watch as a party poll worker inside, Indiana election authorities are powerless.
“They could not do anything about it and I know in Indiana and several other states you can carry rifles and long guns and they can be fairly intimidating and I think unfortunately you would have what amounts to a culture of public intimidation when people carry,” said Madeira.
In 2012, Secretary of State Connie Lawson, charged with overseeing Indiana’s adherence to election laws, was quoted in the Kokomo Tribune as determining that as long as the polling place is not an exemption, such as a school or courthouse or private property with rules against firearms, “That matter has been settled,” and armed Hoosiers would be allowed to vote.
Last week, Lawson’s office issued a statement that read, “Since there is no state law on the books about guns in polling places this is a local story. It’s up to each polling locations own rules and where locals choose to put polling locations.”
Dr. Madeira disagrees, arguing that U.S. Supreme Court precedent finds that a church or apartment complex community room with a gun ban 364 days a year essentially becomes a public place on Election Day and is subject to the authority of local election officials who do not have the power, in most cases, to ban firearms from the voting booth.
“The Secretary of State’s office sets the election laws for the state. The county clerk’s office enforces the election laws for the whole county,” said Russell Hollis, Deputy Director of the Marion County Clerk’s office which is responsible for 600 precincts at 250 polling places on Election Day.
“The city of Indianapolis, through the mayor’s office, selects the polling locations for Election Day,” said Hollis, “There’s a contract the city of Indianapolis has with the polling site.”
That standard one page contract covers both the May primary and November general elections.
Its rules for owners of the properties volunteering their sites as polling places read, “Lessor shall not block or obstruct access to the polling site,” and, “I understand that the polling site must allow members of the public to conduct reasonable electioneering and other political speech activities onside at the location, including but not limited to distribution of flyers and posted signs, within the limitations prescribed by law.”
While the contract spells out adherence to Persons with Disabilities laws, it makes no mention of civil or gun owners’ rights.
“Election law does not address the presence of firearms in any way,” said Hollis. “Only law enforcement is authorized to investigate and determine the legality of a gun in any situation.”
Earlier, Hollis said he would step in if a voter said he or she was intimidated by the presence of a gun at a polling place.
“I would encourage the person not to intimidate the voters,” Hollis said before relaying our inquiries to the Clerk’s “outside counsel,” “but if the person was uncooperative and did not want to leave and voters did feel intimidated, we would call the police.”
Relford said that might be a violation of state law.
“If a member of the Election Board walks up to me, or the inspector or local law enforcement, comes up to me and says, ‘You can’t bring a gun in here under the election laws or under our rules for conducting this election,’ and they’re acting on behalf of the county or any other local government entity, including an election board, now I think they have violated the pre-emption statute.”
Only the owner of the private property can tell the gun owner he or she is not welcome at the polling site, said Relford, yet, “For that one day is it no longer private property , is it now public property, now being managed by the local election board? And the election board is, in my mind, now a political subdivision, a unit of government below the state level that cannot prohibit firearms.”
Similarly, only the local political parties, not election officials, can tell partisan poll watchers not to observe the election and voters while armed.
“If they’re an employee of the Republican party, or they’re an employee of the county, or whomever, in terms of their carrying a gun, their employer can have a policy saying, ‘You can’t carry a gun while you’re doing your job,’” said Relford.
Uncertainty over the confluence of the state’s election and gun laws would bear some additional scrutiny and training of poll workers this fall, according to Hollis.
“Our outside counsel has reviewed the law. We are looking at revising our training materials to address this situation, to re-encourage all of our poll workers to contact law enforcement,” said Hollis. “That extra step we have not taken yet but we are currently revising our training materials so we can include information like that. We’re in the process of doing that right now.”
Hollis admitted that if poll workers or the owners of properties that become poll sites two times every two years knew more about the potential presence of guns and the clerk’s inability to control them on Election Day, such volunteers might rethink their commitments to Indiana’s election process.
