Free Speech Groups to Challenge Ban on Political Attire at Polls

Affiliate: ACLU of Virginia
October 29, 2008 12:00 am

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Groups want to hear from voters told to remove or cover t-shirts, buttons or other apparel containing political messages


Richmond, VA – Three Virginia-based free speech organizations today announced plans to mount a legal challenge to a controversial new State Board of Elections policy prohibiting the wearing of buttons, t-shirts and other apparel with political messages in polling places.

The Thomas Jefferson Center for the Protection of Free Expression, The Rutherford Institute and the ACLU of Virginia say the policy violates the First Amendment rights of voters. The three organizations anticipate that a lawsuit will be filed soon after Election Day, asking a federal court to strike down the policy as unconstitutional before the next state and local elections in 2009.

Adopted by the State Board of Elections (SBE) on October 14, the policy interprets an existing state law against “exhibit[ing]… campaign materials to another person” near or in a polling place as a ban on voters’ attire that expresses a view on particular candidates or political parties. (See link to policy at end of release.)

Guidelines issued by the SBE on October 23 have created confusion for election officials and voters alike. According to the guidelines, the new policy “is not intended to keep a qualified voter from voting.” Yet election officials are instructed to ask voters to remove or cover political statements that are worn as part of their attire. Voters who refuse will be allowed to vote, but in such instances the registrar is expected to file an incident report with the local Commonwealth’s Attorney, presumably for purposes of proceeding with a criminal prosecution. Violations of the law are a class 1 misdemeanor. (See link to guidelines at end of release.)

“Thomas Jefferson understood that the first duty of government is to protect the freedom of expression,” said John W. Whitehead, president of The Rutherford Institute. “Regrettably, the State Board of Elections shirked this important civic duty when it adopted what essentially amounts to a dress code policy. This policy not only undermines the First Amendment right to free speech but will most likely affect the right to vote.”

“The State Board of Elections has not only misinterpreted the state law,” said ACLU of Virginia Executive Director Kent Willis, “but in the process it has unnecessarily and unconstitutionally banned passive personal expression that has no history whatsoever of disrupting the voting process.”

The three free speech organizations are advising voters who want to avoid possible prosecution to be prepared to remove or cover political apparel if instructed to do so by election officials, but to immediately contact the ACLU of Virginia (804-644-8080, or The Rutherford Institute (434-978-3888, or the Thomas Jefferson Center (434-295-4784, to report where the incident occurred and what the voter was wearing.

“Our focus right now is on finding out what actually happens to voters on Election Day,” added Willis. “Voters need to tell us their experiences so we’ll know how and where this unconstitutional rule is being enforced and what action we need to take.”

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