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What Not to Wear...on Election Day

Frank Knaack,
Executive Director, ACLU of South Carolina
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October 30, 2008

The ACLU is strongly committed to protecting everyone’s right to make their political opinions known, regardless of one’s viewpoint. This includes pro-life demonstrators protesting former President Clinton and opponents of the Iraq War calling for President Bush’s impeachment (PDF). In addition, the ACLU is currently involved in numerous court challenges supporting political demonstrators who have been prevented from demonstrating in the presence of the president.

With a new election, comes a new set of challenges. In one week we will decide the next president of the United States. This presidential campaign cycle has been the most costly and the longest in history. It has also been one where fashion and politics collided. I cannot remember an election where I saw more people wearing clothing or other paraphernalia supporting one candidate or another on a daily basis (I should confess that I am not that old; I can only clearly remember back to the 1996 election). It is not just that people are wearing the clothing, but that the clothing itself has become so diverse as to allow people to express both their political aspiration and their fashion sense at the same time. While this can be seen as a positive step in effort to increase participation in our political process, it also sets the stage for potential problems at the polls.

As many of you know, the voting process for federal elections is determined at the state level. This means that each state sets the rules by which citizens exercise their right to vote. This decentralized process has led to some confusion among voters, as the voting rules differ from state to state, and sometimes county to county. One of the common problems stemming from this process has to do with state laws prohibiting campaigning at or near the polls. In some states this law extends to passive political speech (i.e. wearing political clothing, pins, stickers, etc.) near or at the polling place. This law permits voting officials to deny the right to vote to anyone wearing clothing or paraphernalia supporting a candidate or issue on the ballot.

It would seem that government censorship of political speech is exactly the type of speech the framers sought to protect when they authored the First Amendment. As the First (and later Fourteenth) Amendment makes clear, Congress (and the States) “shall make no law … abridging the freedom of speech.” But, the U.S. Supreme Court has carved out an exception for the permissible prohibition of political speech near the polling place on election day. The plurality found, in Burson v. Freeman (1992), that “some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.” Thus, a “minor geographic limitation” does not “constitute[ ] a significant impingement.” But, this case focused on the question of active political campaigning near the polling place and not passive political speech at the polling place.

Unlike the U.S. Supreme Court, both the U.S. Court of Appeals for the D.C. Circuit and U.S. Court of Appeals for the Fifth Circuit have addressed the question of limiting passive political speech at the polling place. In Schirmer v. Edwards (1993) the Fifth Circuit found that a law prohibiting all campaign activity within 600 feet of a polling place on election day to be permissible under the First Amendment. And, in Marlin v. District of Columbia Bd. of Elections and Ethics (2001), the D.C. Circuit upheld an election board regulation prohibiting a voter from wearing a campaign sticker. While the reasoning differed in these two cases, the result was the same; passive political speech can be regulated during the voting process.

While two U.S. appellate courts have found that such prohibitions are permissible under the U.S. Constitution, the highest courts in several states have found that such prohibitions violate state speech laws. The ACLU of Virginia has recently announced it plans to challenge Virginia’s prohibition on passive political speech in the hope of adding to the growing body of state law protecting passive political speech at the polls. Unfortunately, the question will not be decided during this election cycle.

The confusion in the courts has placed the voter in a difficult position; can you wear your political clothing when you exercise your right to vote? Unless you know for sure, we suggest that you either refrain from wearing political clothing, or be prepared to cover up or remove such clothing. Though you may be permitted to vote with it on, you also risk losing your right to vote. In an election that has been described by many as the most important in our lifetime, we suggest that pragmatism carry the day.