Issue of what not to wear emerges as voters go to polls

Monday, October 27, 2008

Editor's note: The Associated Press reported Oct. 29 that the American Civil Liberties Union of Virginia, Thomas Jefferson Center for the Protection of Free Expression and Rutherford Institute would file a lawsuit challenging the ban, but not until after the election. Meanwhile, the AP also reported that U.S. District Judge Patrick Duggan ruled against Council 25 of the American Federation of State, County, and Municipal Employees on Oct. 28, upholding Michigan’s law prohibiting campaign apparel inside polling places.

With a significant increase in the number of first-time voters this year, the issue of wearing campaign apparel to the polls has resurfaced, apparently owing in part to fears that voters will be more likely to get into arguments when wearing the paraphernalia, or that other voters will be intimidated by the displays.

Recent clarifications of electioneering laws as well as newly enacted bans have drawn complaints similar to those from the presidential election of 2004 and this spring’s primary elections that voters had been or would be turned away from the polls because of their apparel.

The American Civil Liberties Union of Virginia wrote to all voter registrars in the state in 2005 after voters from Chesterfield County and Charlottesville reported that they were not allowed to vote in November 2004 because of their political buttons and T-shirts.

Earlier this month, the Associated Press profiled Sue Nace, a Pennsylvania resident who said that she was told she would have to remove or cover her Obama T-shirt to vote in the presidential primary.

According to The AM Law Daily, campaign apparel in polling places as a form of electioneering can be a gray area in terms of the law, a potential reason for conflicting state laws and public statements.

“In 1992, the U.S. Supreme Court upheld a Tennessee law prohibiting any campaigning near polling places, but it did not address the specific issues of whether you can wear a hat or pin to vote,” Laughlin McDonald, ACLU Voting Rights Project director, told The AM Law Daily. (The 1992 ruling was Burson v. Freeman.) “Our advice is to tell people not to make an issue of it. You go to the polls for one reason: to vote, and that’s just what you ought to do.”

According to an Oct. 15 report from the Associated Press, the Virginia State Board of Elections voted on Oct. 14 to ban items that explicitly endorse or denounce a specific candidate or issue from inside polling places. These items include T-shirts, hats and buttons. Virginia officials, who have seen more than 300,000 new voters register since January, said they wanted to replace the inconsistent policies of local election boards to avoid controversy before the polls are filled on Nov. 4.

“If you had a McCain and an Obama supporter right there together with paraphernalia, there’s tension. I’ve seen people argue in lines when they don’t have campaign material on,” Virginia Board of Elections Chairwoman Jean Cunningham told the Associated Press.

Kent Willis, executive director of the Virginia American Civil Liberties Union, told the AP that his group may file a lawsuit challenging the ban, but has yet to do so. Prior to the Oct. 14 vote, Willis wrote a letter to the State Board of Elections asking it to allow political messages on apparel in polling places. Although the state should protect voters from intimidation while in polling places, he said it did not have the right to ban apparel because of potential disruption.

“What we are talking about here is passive, silent expression through a button or a T-shirt,” Willis said.

According to the AP, the state board said the new ban would protect voters from undue influence or harassment.

“What is the right that we, the State Board of Elections, both want to protect and make sure can be carried out?” Cunningham asked. “That is the right to vote.”

In Michigan, members of Council 25 of the American Federation of State, County, and Municipal Employees union filed a lawsuit in federal district court on Oct. 16 challenging a similar ban, the AP reported. The ban on wearing campaign T-shirts and buttons inside polling places has been in place for nearly 50 years to “preserve the sanctity of the polling place,” said Kelly Chesney, a spokeswoman in the secretary of state’s office.

In Pennsylvania, however, the Democratic and Republican parties are at odds over the state’s definition of electioneering and an alleged loosening of apparel restrictions. The Associated Press reported on Oct. 4 that a Pennsylvania Department of State memo in September explicitly advised county election officials that voters should not be rejected for their attire, assuming “the voter takes no additional action to attempt to influence other voters.”

“The wearing of clothing or buttons would not constitute 'electioneering' as that term is used in … the Pennsylvania Election Code,” State Elections Bureau Commissioner Chet Harhut wrote according to the Pittsburgh Tribune-Review.

Counties could keep their restrictions, as the memo is not legally binding, but election officials in Pittsburgh have filed suit to rescind the memo entirely, according to the Associated Press.

“Nothing would prevent a partisan group from synchronizing a battalion of like-minded individuals … to descend on a polling place, presenting a domineering, united front, certain to dissuade the average citizen who may privately hold different beliefs,” the officials said in the lawsuit.

According to the AP, polls in Pennsylvania show Obama ahead of McCain, especially among the 18-24 group that has added the most names to the new voter registry. T.J. Rooney, chairman of the state Democratic party, told the AP that support for the dress code was an attempt to suppress new voters.

“To go to the polls and engage in an expression of democracy and then be accosted by the fashion police is a form of voter intimidation,” he said.

While many states have laws against electioneering, Arizona, Kansas, Maine, Montana and Vermont have explicit prohibitions against wearing campaign apparel inside polling places, according to the National Conference of State Legislatures.

Despite recent free-speech arguments from the ACLU of Arizona, state election officials emphasized that they would actively enforce the dress code that prohibits wearing anything displaying a political message within 75 feet of a polling place, according to an Oct. 18 report in the Arizona Republic. The ACLU asked the secretary of state to clarify that as long as they expressed views in a “silent and passive” manner, voters could wear campaign apparel. Secretary of State Jan Brewer refused to interpret the law this way.

“It has been the long-standing policy in this State to prohibit any type of electioneering activity within a polling place,” the Arizona Republic reported Brewer said in a letter to the ACLU. “This is a basic requirement that is not only a common courtesy that assures voters may vote in a quiet and campaign-free atmosphere, but one that is clearly established in law.”

Dan Pochoda, local legal director for the ACLU, told the Arizona Republic that there would not be a lawsuit challenging the state’s ban.

In Kansas, Secretary of State Ron Thornburgh told The Wichita Eagle that while his state’s “election crime” of wearing campaign apparel within 250 feet of a polling-place entrance carries a consequence of misdemeanor charges, most poll judges will simply ask violators to cover or turn inside-out their paraphernalia. To prevent voters from being turned away, black community activists in Kansas have been e-mailing voters and advertising the ban, Wichita NAACP political action chairwoman V.J. Sessions told The Wichita Eagle.

“Because of the excitement of this year, people are probably going to want to be wearing something that says Barack Obama on it,” she said. “The concern is that people are notified that it’s not allowed at the polls.”

Such e-mails may be necessary in states with explicit bans, but have caused confusion in other states.

E-mails circulated in Kentucky and Nebraska that said, “Please, please, please, advise everyone you know that they absolutely cannot go to the polls wearing any Obama shirts, pins, or hats” and containing similar warnings have elicited statements from election officials in those states.

Although Kentucky Secretary of State Trey Grayson said that he would advise against wearing campaign apparel, according to a Sept. 26 AP report, voters would not automatically be sent away if they wore such apparel.

“We want to reassure voters that, although there is an electioneering ban in place, they should not be turned away from voting just because they are wearing campaign materials,” he told the AP.

Katie Gabhart, attorney for Kentucky’s Board of Elections, explained that a distinction between blatant electioneering and a First Amendment right to free expression was necessary in discussing this issue. Although the state still adheres to an attorney general’s opinion from 1992 that says the First Amendment allows voters to wear campaign apparel, Gabhart told the AP that local authorities could press electioneering charges if voters took their clothing too far by dressing as a “walking placard.”

Nebraska Secretary of State John Gale similarly stated that although candidate or issue apparel was inappropriate in polling places, it was incorrect that voters “will automatically be turned away from the polls if they arrive wearing campaign items,” according to the AP.

“It is certainly not our intent in Nebraska to arbitrarily refuse citizens the right to vote,” Gale said.

To learn more about campaign-apparel rules for specific polling places, voters may want to consult their state or local election boards.

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