On The Front Lines
Citing Legislative Victory, Va.-Based First Amendment Groups Drop Lawsuit Over Prohibition of Campaign Apparel at the Polls
Richmond, VA-- Three Virginia-based free speech organizations have asked a federal court to dismiss their lawsuit challenging the Virginia State Board of Elections' policy which interpreted state law to prohibit voters from wearing political messages in polling places. The policy, adopted shortly before the November 2008 elections, drew widespread criticism from both voters and constitutional rights organizations.
The lawsuit became unnecessary recently when Governor Kaine signed into law a bill preventing voting officials from "prohibit[ing] a person who approaches or enters the polling place for the purpose of voting from wearing a shirt, hat, or other apparel on which a candidate's name or a political slogan appears or from having a sticker or button attached to his apparel on which a candidate's name or a political slogan appears."
The Rutherford Institute, the Thomas Jefferson Center for the Protection of Free Expression, and the ACLU of Virginia had argued that the Board of Elections' policy violated the First Amendment rights of voters and was inconsistent with Virginia's electioneering statutes.
"The Virginia General Assembly brought the Commonwealth to its senses by reversing this unnecessary restriction on political free speech. This shows what the average citizen can do by standing up to the government and speaking truth to power," said John W. Whitehead, President of The Rutherford Institute. "It is my hope that barriers to freedom of speech will not be erected by the Commonwealth of Virginia again."
The lawsuit was filed last December on behalf of voters Jill Borak of Fairfax County and Charles Epes of Richmond, who wore Obama campaign paraphernalia to the polls on Election Day 2008 and were told to remove them or cover them up. Adopted by the State Board of Elections on October 14, 2008, the policy on campaign paraphernalia in polling places was an interpretation of 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. Prior to the adoption of the SBE policy, some registrars viewed the law as prohibiting such attire, while others did not.
Guidelines issued by the Board of Elections on October 23 created confusion for election officials and voters alike. According to the guidelines, the measure was "not intended to keep a qualified voter from voting." Yet election officials were instructed to ask voters to remove or cover political statements that are worn as part of their attire. Voters who refused were to be allowed to vote, but in such instances the registrar was expected to file an incident report with the local Commonwealth's Attorney. It was this directive that led to the prosecution of the Madison County voter who refused to remove her McCain t-shirt. Telephone calls to the three organizations indicated that the policy was enforced inconsistently by jurisdictions across the state, with election officials having widely varying interpretations of what the policy required.
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