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Va. officials ban campaign apparel at polls

By The Associated Press
10.15.08

RICHMOND, Va. — It’s OK to be fired up about voting for your candidate next month. Just don’t wear your feelings on your sleeve.

Or your hat, or your lapel or anyplace else when you show up at the polls.

The State Board of Elections yesterday voted 2-1 to ban clothing, hats, buttons or other paraphernalia that expressly advocates the election or defeat of a candidate or issue inside polling places.

The prohibition follows an existing ban against electioneering within 40 feet of the entrance to any polling precinct.

The board said its action strikes a balance between the First Amendment right to free speech and the right of people to cast secret ballots in a safe, orderly way free of 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?” asked board chairwoman Jean Cunningham. “That is the right to vote.”

The American Civil Liberties Union, which asked the board to loosen the clothing restrictions statewide, said yesterday’s decision might be challenged in court.

“The kind of line-drawing that is involved here invites litigation,” said ACLU attorney Rebecca Glenberg. “The definition of express advocacy and the kinds of things that are encompassed by that is something that has been litigated and will continue to be litigated.”

A 2006 article in the Thurgood Marshall Law Review said that eight states prohibited the display or exhibit of campaign materials inside a polling place, and 10 barred buttons, badges or lapel stickers inside voting places.

Local election boards observed a patchwork of policies across the state with some prohibiting all political expression in the polling place, express and implied, while others imposed few or no restrictions.

The state board’s action obliges all localities to bar express advocacy within polling places. That includes clear, unambiguous expressions of support for or opposition of a candidate or ballot issue. An example would be a baseball cap bearing the insignia of either the McCain or Obama campaigns or an appeal to vote Republican or Democratic.

Local boards have the discretion to limit implied advocacy, or an indirect references for or against a candidate or ballot issue. An example would be a T-shirt that mocks or affirms support for a well-known position of one candidate without explicitly identifying the candidate.

“This is like a minimum standard throughout Virginia. If a local board, because they are ultimately responsible for the election, ... wants to be more stringent in their policy, I don’t think we can control that,” Cunningham said.

Goochland County, just west of Richmond, will continue its practice of banning both express and implied advocacy on clothing or paraphernalia in the polling place, said Robin Lind, a member of the county’s election board.

“We’d ask them to go outside and take a shirt off or turn it inside out,” Lind said after the SBE’s vote. Or a voter would have the option of covering up the political message, he said.

Some localities that have prohibited campaign clothing or paraphernalia in polling places keep cloaks on hand to help people conceal political messages while they vote. They range from modified trash bags to vests and ponchos, Cunningham said.

The board took its action three weeks to the day before the historic and emotional presidential election in Virginia, a state that’s in play for a Democratic candidate for the first time in decades.

With polls showing the race deadlocked in the quest for Virginia’s 13 electoral votes, more than 300,000 new voters registered since January, and projections that a crush of voters will obliterate previous turnout records and swamp polling places, SBE members were wary of risking disruptions on election day.

“If you had a (John) McCain and an (Barack) 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,” Cunningham said.

While the state has a right to keep polling places free of electioneering, the state lacks sufficient grounds to ban politically inspired fashion statements, said Kent Willis, the Virginia ACLU executive director.

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

The state needs to establish that allowing campaign garb inside election precincts would create a high probability of a problem that would impair people’s right to vote, not just the prospect of tension or disruption, he said.

Glenberg and Willis said the ACLU would have to research the issue more before determining whether to challenge the issue in court.


Update
Free-speech groups challenge Va. poll-apparel rules
Two voters who were directed to remove or cover political messages join federal lawsuit. 12.15.08

Related

Pa. poll workers won't act as fashion police

Apparel shouldn't matter as long as individual doesn't try to campaign inside polling place, says state elections commissioner. 09.09.08

Ky. voters can sport Obama buttons, McCain caps

E-mail warning against wearing candidate paraphernalia causes confusion; election officials warn voters not to show up looking like 'a walking placard,' either. 09.26.08

Union challenges ban on campaign apparel at Mich. polls
Secretary of state spokeswoman says ban, around since the 1950s, is intended 'to preserve the sanctity of the polling place.' 10.20.08

Ariz. voters can't don political garb at polls
ACLU asks for clarification of rules; Secretary of State Jan Brewer rejects group's interpretation of dress code. 10.22.08

Issue of what not to wear emerges as voters go to polls
By Courtney Holliday Some states clarify existing restrictions on campaign apparel in polling places, others enact bans. 10.27.08

Federal judge: Mich. can bar campaign attire at polls
Labor union had argued that ban on political apparel violates residents' freedom of expression, right to vote free from intimidation. 10.29.08

2008 election: First Amendment resources

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