Do States Violate the First Amendment If Their Ban on Electioneering At or Near the Polls Extends to the Wearing of Partisan T-Shirts, Buttons, and Other Paraphernalia?

By JULIE HILDEN


Wednesday, Oct. 15, 2008

Recently, several states have experienced controversy over whether voters can wear partisan T-shirts, buttons, and similar items to the polls. The reason the practice is controversial is that some deem it "passive electioneering," and state laws create a zone around polling places in which electioneering cannot occur.

Some states - such as Kansas, Maine, Montana, Vermont and Virginia -- ban partisan gear at polling places. In contrast, Pennsylvania's Secretary of State approved of partisan gear at polling places after the American Civil Liberties Union requested clarification on the issue, but the issue appears to still be a live one in the state. Kentucky election officials also adopted a stance allowing partisan gear, after emails circulated warning voters that their partisan T-shirts and buttons might mean they could not vote. In contrast, Nebraska's Secretary of State has said that such attire is "inappropriate," but will not result in voters being turned away from the polls. Meanwhile, in many other states, officials have not yet taken a clear position on the issue.

From a practical perspective, the smartest option for voters is to be prepared to put their partisan material out of sight if need be - by carrying a plain T-shirt or a bag to conceal buttons or other items. Generally, I wouldn't advise capitulation as the way to handle a potential First Amendment violation. But in this instance, I fear there won't be a proper remedy for voters who are turned away when trying to vote just before work, or late in the evening as polls are about to close. Election Day is always a terrible time to try to resolve electoral problems.

Moreover, voters should be able to later join a First Amendment suit even if they do put their gear away, because the effectiveness of censorship is no defense to it. It's a good idea, though, for the voter to keep the partisan materials at issue, get officials' names if possible, and write down exactly what he or she was told at the voting booth. If there's an election monitor at a given polling place, the voter would be well-advised to make contact with that person, make the monitor aware of what occurred, and find out the monitor's name as well.

Beyond practicalities, however, who will win if this issue is litigated? In this column, I'll consider that question.

Why Traditional First Amendment Doctrines Don't Quite Resolve This Issue

It turns out that electioneering bans - especially as applied to so-called "passive electioneering" such as T-shirts and buttons - raise surprisingly complex First Amendment questions.

At first glance, one might think the issue is easy: Voters are being silenced and, worse, they are being prevented by law from voicing a kind of speech that is at the very heart of the First Amendment: political speech.

Moreover, the price voters may pay for a violation is steep and is itself of constitutional magnitude: If they refuse to stop electioneering, and are thrown out of the polling place, they may lose the constitutionally-protected right to vote. In sum, one might initially see this as a "no brainer" free speech violation.

However, that's only the beginning of the analysis. One can also argue that this is a case of "right versus right" - not just a case of "government interest versus right" - if one believes that electioneering, if it occurs too close to the polling place, threatens other voters' right to vote.

This theory is based on the idea that voting requires contemplation and thought, and that boisterous electioneering within the vicinity is too disruptive for the voter to have the chance to quietly and carefully consider his or her choice. This rationale is more convincing when the decision at issue requires interpreting a complex and potentially misleading ballot initiative rather than simply choosing a name. Still, even in the choice between candidates, a voter's consideration may be complex and heart-wrenching. Consider, for instance, a voter who is strongly anti-war but strongly pro-life choosing between Obama and McCain, or a voter who has the candidates' economic policies in mind and is torn between voting her heart or voting her pocketbook.

When two constitutional rights are pitted against one another, First Amendment cases become more difficult. Fights over abortion clinic protesters' rights provide an excellent example. With polling place paraphernalia, moreover, there are arguably three rights at issue: The speaker's (or T-shirt-wearer's) right to speak, the speaker's right to vote, and other voters' right to vote.

To make the matter even more complicated, the Supreme Court has long held that "time, place or manner" restrictions are acceptable in the First Amendment context. However, the examples that are usually invoked to illustrate this rule are quite innocuous: The government can tell you to turn down the music you are playing in a public park. If you want to have a parade, the government can ask you to first procure a permit.

Electioneering bans, however, are not innocuous at all: They prevent the speaker from reaching his or her intended audience at a time and place that are pretty much ideal since, unlike citizens contacted in door-to-door canvassing, citizens lined up to vote are all really going to vote. And one optimal way to reach them is to reach them just before they vote, at a time when they may be ready to get off the fence.

All this can be said about abortion clinic protests too - but there is a difference: Ultimately, no one can know how a given voter voted, but if a woman walking into a clinic, and facing protesters, does not turn back, then protesters have an excellent - and arguably privacy-violating - sense of what she is going to do. Thus, there is a way in which abortion-clinic protests are more violative than any kind of electioneering. That is not simply because they concern the right of privacy, but also because they have the effect of violating privacy - an effect which electioneering does not have.

Typically, states have addressed all these different, difficult arguments by creating a fairly small zone around the polls within which electioneering cannot take place. But when it comes to "passive electioneering," such as occurs when voters wear T-shirts and buttons, is having such a zone defensible? I doubt it.

Why Zone-Based Bans on "Passive Electioneering" Are Much Less Defensible than Zone-Based Bans on Active Electioneering

As I noted above, the best argument in favor of no-electioneering zones is that such zones preserve voters' ability to consider their choices in peace and quiet. Yet this argument simply does not apply to the silent wearing of T-shirts, buttons, and the like - which cannot possibly interfere with other voters' deliberations in the voting booth.

Moreover, it's not even clear that such T-shirts are worn to electioneer, rather than to proudly proclaim affiliation - an ambiguity that doesn't exist if someone is shouting at other voters all the reasons that his or her candidate is the best.

T-shirts or buttons may also open a conversation without forcing it - a positive development from a First Amendment perspective. To me, if one neighbor, spotting a T-shirt, asks another "Why do you support that candidate?" and they go on to have a spirited conversation while they are both waiting to vote, that's what America is all about.

Also, if you respect your neighbors, you may reasonably want to choose to take into account what they think about the issues and how they vote when you cast your own vote. If I am on the fence about my vote, and I notice that the same neighbor who volunteers to pick up the litter for our street and is always doing walkathons for charity has a particular candidate's T-shirt on, then I might reasonably count his altruism in the candidate's favor and use it as a tie-breaker. Votes have been cast for much worse reasons, and can legally be cast for any reason at all.

One might argue that in some neighborhoods, the sheer number of T-shirts or buttons in favor of one candidate would exert a coercive force. But I feel confident that Americans are stronger and more independent than that - with seeming unanimity more likely to fan the fires of opposition than drown them out. And even if we are not so brave, the secret ballot affords us the ability to lie about our vote, if need be, with the confidence that we will not be unmasked; that is one of its key purposes. The secret ballot protects us all from the personal and business consequences - even, conceivably, the threats to our safety - that could follow from open voting.

Moreover, even assuming that a particular neighborhood's unanimity does have a coercive feel, it won't be confined to the voting booth, and censoring T-shirts, and buttons inside the voting location won't address it. It's artificial, to say the least, to ask voters on Election Day to walk down a street full of political lawn signs, grab a coffee at a shop with a political sign in its window, walk down Main Street passing candidates' local headquarters, plastered with signs -- and then drop their own buttons and T-shirts into a box when they enter the polling place, as if it were some kind of apolitical inner sanctum. The voting booth is supposed to be free of improper political influence, not free of politics. Its very purpose is the individual expression of political views.

Ultimately, too, the dimension of the injury to voters who would have preferred not to see partisan paraphernalia is slight. The First Amendment rightly asks us to endure much more in the name of free speech. A friend of mine who's gay recently heard a knock on his door and opened it, only to be lectured about why he should vote in favor of California's Proposition 8, which would revoke the right to gay marriage. The experience was very unpleasant, but it won't cause him to refuse to open the door to future canvassers - with whom he might agree, or whom he will at least hear out. In comparison with his experience, or the experience of a woman who must run a gauntlet of angry protest to enter an abortion clinic, or the experience of a person preaching in the park who faces only harsh jeers and ridicule, the experience of someone who must unwillingly view a button or T-shirt for a few seconds is trivial indeed.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.



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