Local Interpretations of Inconsistent Laws Confuse Citizens
Don’t wear campaign paraphernalia to voting polls on Election Day, Nov. 4, or bring a sweater to cover it up, experts advise.
An individual’s right to dress as he or she pleases and to advocate for a candidate notwithstanding, the experts say inconsistent state laws – and local interpretations – make it simpler and less frustrating to leave the campaign gear behind when going to the polls.
”Whether or not they have a constitutional right to wear [campaign memorabilia], we tell them to leave it at home and avoid the hassle,” said Laughlin McDonald, director of the American Civil Liberties Union Voting Rights Project. “There is a Supreme Court decision that prohibited campaigning within 100 feet of a polling place so we advise that if they do wear a campaign button that they follow that state’s law, unless they are trying to challenge it.”
Barbara Arnwine, executive director for the Lawyers’ Committee for Civil Rights Under the Law, a non-profit legal organization that specializes in election law, agrees. Arnwine said there should be no open endorsement of candidates to help voting sites remain neutral. But, she added, “There needs to be more uniformity of the law under local and state legislation.”
Fact vs. FictionThe issue of donning campaign paraphernalia at polling places might be less of a problem for supporters of Sen. John McCain, R-Ariz., than it would be for voters supporting Sen. Barack Obama, D-Ill. According to Susan Benovitz, owner of Washington-based Capital NovelTees, a major T-shirt wholesaler, Republican voters have not been as enthusiastic as their Democratic counterparts when it comes to purchasing their candidate’s apparel.
“Obama tees have been outselling McCain tees 10 to one all over the country,” Benovitz said. Although she didn’t have exact figures, she has noticed a slight increase in overall sales of campaign paraphernalia for this presidential election compared to previous ones.
Thousands of voters have received e-mails and text messages informing them that they may have problems if they show up to the voting booths wearing buttons, stickers and T-shirts with the names of political candidates. In many states, that could be true.
Alpatrick Golphin, 39, of Hyattsville, Md., thought the email he received was just another unsubstantiated rumor. “I thought it was a joke – like Ashton [Kutcher] was trying to punk me,” he said, referring to the actor’s popular MTV prank show, “Punk’d.”
Golphin has voted in other elections, but this was the first time he’s heard warnings about campaign paraphernalia. Maryland does not have a dress code per se, but it still has laws against “electioneering” or campaigning inside a voting poll.
According to the Maryland State Board of Elections, voters are allowed to wear campaign paraphernalia into polling places, but may not linger after voting. Poll workers are not allowed to wear campaign attire within 100 feet of a polling place.
What Constitutes Electioneering?States have the right to decide how to regulate elections so long as the elections are conducted fairly, said Bob Biersack, a spokesman for the Federal Elections Commission. Because there’s no federal provision, elections are administered by the states. Therefore, depending on what voting jurisdiction a citizen resides in, casting a ballot while displaying any campaign affiliations – including names or images on a hat, T-shirt or button – could be classified as passive electioneering, a misdemeanor in some states, depending on how the attire is interpreted by authorities.
The laws are meant to protect elections from voter intimidation and swaying outcomes. But, the written definition of electioneering is murky in some states.
For example, Virginia is a critical swing state in this year’s presidential election, but its voters aren’t the only ones confused about the issue of what constitutes electioneering. Even the state’s board of elections is having a hard time interpreting the law in a way that is clear for the state’s voters.
“Section 24.2-604 of the Code of Virginia creates a 40-foot neutral zone in which campaign material is prohibited, but there has been some confusion among the voting population in recent weeks as far as the definition of excessive campaigning at the polling place,” the Virginia State Board of Elections said in a statement. The board said it would meet before the election “to make a ruling on the draft policy.”
”Voters are not allowed to wear campaign paraphernalia,” Kevin Kidder, a spokesman for the Ohio Secretary of State, said. “We’ll ask them to turn it inside out. Put a jacket over it. The right to vote is absolute so you’ll be allowed to vote, but you can be charged later.”
Free Speech ConcernsSome other states, including Georgia and Florida, have more lenient laws. According to Georgia Secretary of State spokeswoman Jennifer Davis, her state’s definition of electioneering is reserved for more obvious campaigning.
“There’s no overt soliciting such as handing out campaign material,” Davis said. But when asked if there are any restrictions on the wearing of campaign paraphernalia, she said: “Absolutely not. You can wear whatever you want. The only restriction is for the people working at the elections all day.”
“I can’t imagine any restriction on that sort of thing, because of free speech concerns,” she added.
Some courts haven’t seen it that way, however. A 2001 Washington, D.C., Circuit Court ruled against voter David Marlin, who had taken the D.C. Board of Elections and Ethics to court for allegedly denying his ballot because he wore a sticker supporting a specific mayoral candidate.
The court sided with the board, citing a Supreme Court ruling that stated polling places are not a forum to engage in public discourse and such “viewpoint neutral” laws are a constitutional and necessary means of ensuring an orderly election process.
A Safer WaySuch laws have sparked widespread debate, even among students. In 2006, American University law student Kimberly Tucker published a legal paper titled “You Can’t Wear That to Vote: The Constitutionality of State Laws Prohibiting the Wearing of Political Message Buttons” that argued against the restrictions.
”States cannot demonstrate a ‘compelling state interest’ in prohibiting the wearing of political message buttons in the polling place,” she wrote. She also argued that the laws are far too broad and that the statutory language often permits “arbitrary enforcement.”
Because of the wide latitude, Arnwine of the Lawyers’ Committee for Civil Rights Under the Law said she believes the best way is probably the safer way. “What is correct,” she said, “is that you may have to cover up [in the polling place] and expose your Obama T-shirt once you go outside the designated voting zone.”
Local Laws at a Glance
Here’s how laws on wearing campaign paraphernalia vary in the Washington area:
District of Columbia § 1-1001.10(b)(1)(2)(A): “No person shall canvass, electioneer, circulate petitions, post any campaign material or engage in any activity that interferes with the orderly conduct of the election within a polling place or within a 50-foot distance from the entrance and exit of a polling place.”
Virginia§ 24.2-604 (A): “During the times the polls are open and ballots are being counted, it shall be unlawful for any person … (ii) within such distance to give, tender, or exhibit any ballot, ticket, or other campaign material to any person or to solicit or in any manner attempt to influence any person in casting his vote.”
Maryland§ 16-206(a): “A person may not … (10) canvass, electioneer, or post any campaign material in the polling place (b) Electioneering boundary. (2) … 100 feet from the entrance and exit of the building that are closest to that part of the building in which voting occurs.”
According to the Maryland State Board of Elections, voters are allowed to wear campaign paraphernalia into polling places, but may not linger after voting. – Pharoh Martin