While the battle over voter registration rages, a battle is won (or lost) in Virginia.
The Virginia State Board of Elections has decided to uphold Virginia’s ban on “political clothing” at polling places.
Under the Board’s Policy 2008-007,
… the Code of Virginia, § 24.2-604 states, in part:
During the times the polls are open and ballots are being counted, it shall be
unlawful for any person (i) to loiter or congregate within 40 feet of any entrance
of any polling place; (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…
WHEREAS, the Code of Virginia does not define “exhibit;” and
WHEREAS, “In the absence of a statutory definition, the plain and ordinary meaning of
the term is controlling.” … and
WHEREAS, Merriam-Webster dictionary defines “exhibit” as: “a: to present to view:
as a: to show or display outwardly especially by visible signs or actions; b: to have as a
readily discernible quality or feature; c: to show publicly especially for purposes of
competition or demonstration;” and
WHEREAS, the Code of Virginia does not define “other campaign material;” and
WHEREAS, Merriam-Webster dictionary defines “material” as: “the elements,
constituents, or substances of which something is composed or can be made;” and
WHEREAS, campaign materials are materials distributed by or for campaigns and the
Code of Virginia, § 24.2-945.1, was amended in 2007 to adopt the express advocacy
standard for campaign contributions and advertisements; and
WHEREAS, courts applying the express advocacy standard have held subject to
regulation communications that cannot reasonably be interpreted other than as expressly
advocating the election or defeat of clearly identified candidate…..
WHEREAS, the Code of Virginia recognizes sample ballots may be a form of prohibited
campaign material if exhibited within the prohibited area; § 24.2-622 states, in part:
Voters may take sample ballots into the voting booth or enclosure, but
shall not give, tender or exhibit such ballot to any person, other than an
assistant designated under § 24.2-629, while inside the polling place or
within the prohibited areas designated by § 24.2-604.
Now therefore be it
RESOLVED, by the State Board of Elections under its authority to issue rules and regulations to
promote the proper administration of election laws and obtain uniformity in the administration of
elections pursuant to § 24.2-103, that
The phrase, “it shall be unlawful for any person… to…exhibit… other campaign material”
within the Code of Virginia, § 24.2-604 shall be interpreted as:
No person shall be allowed to show, display, or exhibit any material, object, item,
advertisement, or piece of apparel, which has the purpose of expressly advocating the
election or defeat of a clearly identified candidate.
Any person who does so will be asked by the officers to cease from showing, displaying or
exhibiting the material, object, item, advertisement, or piece of apparel, or to remove or
cover it until they leave the prohibited area and polling place.
Nothing in this policy shall prohibit any person from bringing but not exhibiting any
campaign material within 40 feet of any entrance of any polling place.
(emphasis added)
The ACLU of Virginia has asked the State Board of Elections to allow political messages on apparel at polling places, lest a ban violate the First Amendment right of freedom of speech.
“We believe that the Virginia law can and should be interpreted to allow individuals to wear political apparel when they vote,” said ACLU of Virginia Executive Director Kent Willis, “and that is what we have asked the State Board of Elections to do.”
The ACLU’s request letter (which, by the way, didn’t do any good, since it was on October 14 that the State Board of Elections established the ban) addressed the ambiguity of the decision, suggesting that it would cause confusion for the already overworked volunteer poll workers trying to draw distinctions between support for a particular candidate and generalized political advocacy. What if, the letter queries, a voter wears a pro- or anti-George Bush button? Why should that be banned from the polls if George Bush isn’t even a candidate?
I haven’t found much support in the webisphere for the ban, so I’m going to take a stab at it. And I think my opinion might be more valid than someone who lives in California or some other state, by the mere fact that I both live and vote in Virginia (please don’t hunt me down and kill me).
My polling place is an elementary school, but in Virginia, polling places can range from churches to gymnasiums, and are quite often schools. Here is what I experience when I walk up to the school entrance on election day:
There are usually two tables just outside the entrance, with about three or four people hanging around each one, usually with some button, hat, or mere proximity to the table to identify the person as a Republican or Democrat. Sometimes they even wear blue or red shirts. Occasionally a green or independent party supporter will be lingering around, as well. The tables are stocked with red or blue sheets of paper with a hit list of names and issues voters should vote for to vote along party lines. I remember my first visit to that polling place, and thinking how offended I almost was at the prospect of someone “telling” me how to vote. I’ve since changed my mind. The sheets are very handy, and they give me an opportunity to review my votes while I wait in line.
But I don’t pick up just one sheet. I pick up one sheet for each party. Is that because I’m undecided? Because I pick a few from one, a few from the other? Do I have some secret plan to enter two exactly opposite set of votes? No. None of the above. I take both sheets because I am of the mind that I have a constitutional right to vote for a candidate or issue without my neighbors knowing how I voted. The people who frequent my polling place are the people who live next door to me, down the street from me, whose kids play with my kid. They’re people who teach my kid, teach other kids, walk their dogs on the sidewalk in front of my house, and who populate the neighborhood watch. When I go up to my polling place, the chances that some of those people there know me or have seen me are fairly good. I don’t want to (as McCain would say) telegraph my punches. That play on words would have worked better if I lived in Florida, of course, but the issue of intimidation (yes, even I get intimidated) still stands.
I think it’s a great idea to have a ban of political apparel within 40 feet of any entrance to a polling station. I don’t think that would affect the cheat sheets, but I do think it would keep up the appearance of neutrality of the polling place itself. Volunteers can’t wear political apparel (that’s a no-brainer), but a good number of people do loiter around, trying to nudge (or hound) others into voting for or against a particular candidate. Don’t we get enough of that on the news, in the newspaper, in television ads, at work, everywhere?
Despite my appreciation for the ACLU, there’s no free speech issue here. This is all about protecting the right of people to vote without being intimidated. It’s about the voting places not being public forums, but, instead, being temporary government facilities designed to allow residents to vote. Just imagine if we were living in the first days of public school integration, and some fervent advocate for free speech supported the notion that pro-segregationists could stand right at the doors of the schools while wearing anti-black slogan t-shirts, prominently displaying nooses, tar babies, and burning crosses. That’s despicable behavior and intimidation at its worst. Obviously, standing at the doors of a polling station wearing McCain masks, shirts, and baseball caps isn’t at the same level of intimidation as a KKK member being allowed to stand at the doors of a newly de-segregated school wearing a full Klan gown and hood, but it’s still not right, and it’s not a matter of free speech — it’s a matter of respect.
The only issue I foresee is where someone who doesn’t know about the ban, or who is merely wearing a button or lapel pin (not a full Barack Obama mask and suit getup), heads to a polling station and is turned away by the volunteers. Of course, that person can merely remove the offending item, but sometimes people wear political shirts to the polls, and often they won’t have brought along a change of clothes. What I would do is allow them entrance to vote, if there doesn’t seem to be a big problem. The heart of the matter isn’t the occasional pro-whatever button or shirt, it’s the groups of pro-whatever supporters hanging out with pro-whatever attire, acting as what could be seen as a loitering bully. Perhaps the ban should have been worded differently, so as not to create ambiguity and confusion, but I think the general idea is still sound.
—
A bit more clarification for the unconvinced:
Although free speech is still an underlying foundation of every public activity, if a specific purpose exists that certain free speech potentially disturbs, and that purpose is important for the perpetuation of free speech (or other important rights), then by limiting free speech narrowly to avoid having it disturb the purpose is a valid measure.
So, in this case, the purpose of facilitating unhindered voting for everyone is more important, in that very limited scope of the voting area, than free speech.
