Virginia: Free-speech advocates vow to fight polling-place restrictions

Story by Chris Graham
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Want to wear a campaign-themed T-shirt or button to the polls? The Thomas Jefferson Center for the Protection of Free Expression, The Rutherford Institute and the ACLU of Virginia has your back.

“Thomas Jefferson understood that the first duty of government is to protect the freedom of expression. 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,” said John Whitehead, the executive director of The Rutherford Institute, which is joining with the Jefferson Center and the ACLU in a planned legal challenge to the controversial new State Board of Elections policy prohibiting the wearing of buttons, T-shirts and other campaign-related apparel in polling places.

The groups contend that the policy violates the First Amendment rights of voters.

Officials with the organizations are saying that a lawsuit will be filed in federal court after Election Day to challenge the constitutionality of the policy in advance of the 2009 state elections.

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

The policy adopted by the State Board on Oct. 14 interprets a state law against exhibiting campaign materials to another person near or in a polling place as a ban on any attire that expresses a view on a particular candidate or political party. Guidelines issued by the board on Oct. 23 have added to the controversy, stating that the policy “is not intended to keep a qualified voter from voting,” 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.

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, [email protected]) or The Rutherford Institute (434.978.3888, [email protected]) 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.”