Paxton, 021318 TXAGO, AGO RQ-212-KP

• Case Date: February 13, 2018
• Court: Texas

The Honorable Ken Paxton AGO RQ-212-KP No. RQ-0212-KP Texas Attorney General Opinion February 13, 2018           Received Date February 15, 2018          The Honorable Ken Paxton          Attorney General of Texas          209 W. 14th Street          Austin, TX 78701          Dear General Paxton,          On October 17, the City Council of McKinney enacted Ordinance No. 2017 10-095 regarding polling places and electioneering. It was immediately effective on October 17, 2017. A foil copy of the ordinance can be found at https://www.mckinneytexas.org/DocumentCenter/View/14107.          Upon review, I developed a particular concern with parts of Section 38-73 regarding "Prohibited Area, Activities, and Conduct." Specifically, the parts are as follows:          Section 38-73 Prohibited Area, Activities, and Conduct.

h) The following regulations, adopted for the health, safety and welfare of the City's residents, shall apply to any person who engages in electioneering outside of the Prohibited Area during any voting period:

6) It shall be unlawful to overload the public's capacity to receive information or to increase the probability of traffic congestion and accidents by distracting attention or obstructing vision due to the posting of political signs.

8) It shall be unlawful to place or post political signs in public easements or rights-of-way.

         These new provisions create troubling restrictions that go outside the boundaries of the polling places themselves. The right to exercise public or political speech alongside roadways has been historically upheld by courts. See, e.g., World Wide St. Preachers Fellowship v. Town of Columbia, 245 Fed.Appx. 336, 347 (5th Cir. 2007).          Moreover, this ordinance is not content neutral as it addresses "political" signs, and no others. But the Supreme Court of the United States is clear that "(c)ontent-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be...