Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
A T-shirt can really get some people teed-off — particularly when it’s worn into a polling place, it would seem. And in parts of the nation — now including Michigan, since an Oct. 29 court ruling — people wearing campaign buttons or clothing with a political message will be told to button up or cover up before casting a ballot, at least in or near where ballots are cast.
Still, in several states, voters’ political accouterments and attire — including pins or other insignia, and perhaps even the occasional straw boater bearing a candidate name — will be permitted. In terms of the First Amendment, it’s the principle and practice of free speech running smack dab into another American value: fair elections.
The 2008 collision between fashionable activist and election purist has produced disparate results.
In Virginia, a new ruling by the State Board of Elections will prevent from voting anyone wearing a campaign hat, pin, button or shirt with a candidate’s name or other election-related message. The official reasoning: Other voters may feel intimidated and fights could break out in lines of people waiting at the polls.
In Pennsylvania, state officials have announced just the opposite stance: That “the wearing of clothing or buttons would not constitute ‘electioneering’ as that term is used in … the Pennsylvania Election Code." But that position has prompted officials in the Pittsburgh area to file legal action to bring back the ban. (Editor’s note: On Oct. 30, a state judge allowed counties to let voters wear partisan attire.)
Arizona, Kansas, Maine, Montana and Vermont — and now Michigan, where a federal judge rejected the argument that a ban oppresses voters’ rights to free expression — have explicit prohibitions against wearing campaign apparel inside polling places, according to a report by the First Amendment Center.
In Arizona, the rule is no election-related clothing within 75 feet of the polling place. In Kansas, the “no-zone” starts 250 feet out — and not only would you likely not get to vote without removing, hiding or turning an offending shirt inside out, but a violation is also a misdemeanor.
But in Kentucky, while state elections officials concede that a 1992 attorney general’s opinion permits voters to wear campaign apparel, they’ve also said voters will be turned away if their attire resembles a moving billboard. The same goes for Nebraska.
Proponents of the clothing-and-insignia bans envision polling-place nightmares if free political speech is on display as voting occurs. The Pittsburgh lawsuit suggests images of like-dressed party activists descending in legions on heretofore sedate locations, using a “domineering, united” message to influence voter decisions and warp results.
But others argue that so-called “passive” demonstrations of support — such as a simple name or slogan on the front or back of a shirt or jacket — are not intrusive and are unlikely to prompt a violent reaction on Election Day. They see more negatives in turning away potential voters than in disturbing decorum.
Americans are not immune from last-chance pitches from candidates as they prepare to vote. Candidates and their surrogates traditionally plaster with signs and stickers the approaches to the schools, firehouses, libraries and such places where voting is taking place. Often, volunteers make last-minute pleas for support for their nominee. The real issue is “how far” such speech should go, not “whether.”
We should not ignore the fact that — unlike this presidential contest, with state after state reporting record turnouts in early voting and big increases in new registrations — in most election cycles the concern is low voter turnout, not crowds; public apathy, not populist excitement. More free speech, not less, would seem key to attracting new voters and motivating older ones.
Permitting voters to express their choices quietly with shirts and buttons in polling places may break a bit with tradition and even bruise some definitions of decorum. And no doubt there will be some who test the limits of “passive” expression.
But as officials in at least two states have essentially asked, Is the electoral process really endangered by a T-shirt, hat or button that replaces the slogan “Vote” with one that says “Vote for …”?
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].