When Jillian Ostrewich entered her Houston, Texas, polling place in 2018, she expected the only decisions she’d face would be on the ballot. Instead, an election judge gave her an ultimatum: turn her shirt inside out or forfeit her vote. Similarly, in 2018, a Dallas-area election judge ordered Tony Ortiz to turn his “MAGA” hat inside out. Jillian and Tony have asked a federal judge to overturn Texas’ election apparel law because the First Amendment protects passive political speech in the polling place, just as it does in all public places.
The election judge took issue with Jillian’s yellow t-shirt with the words “Houston Firefighters” and a small AFL–CIO emblem. There was a ballot proposal to give the city’s firefighters a raise, which led some election judges to prohibit voters from wearing shirts with the firefighters’ union logo and even firefighter uniforms. Jillian wore the shirt to support her husband, a longtime Houston firefighter, and her extended firefighter family. The t-shirt said nothing about the ballot initiative, but the election judge ordered her to turn the shirt inside out before she could vote.
The law bans any symbols or similar communicative devices relating to anything on the ballot, such as a candidate, proposal, or political party, on Election Day and during early voting.
The ban even extends to apparel containing political figures not on the ballot that election, as Tony Ortiz discovered when he wore a “MAGA” hat to the polls in 2018.
An election judge at his Dallas-area polling place ordered Ortiz to turn his hat inside out or face a misdemeanor charge. Election judges are given wide discretion, including the power to make on-the-spot judgments about which shirts are okay and which are not, as well as the power to issue arrest warrants.
This election law is still on the books in Texas. This despite a U.S. Supreme Court decision in Minnesota Voters Alliance v. Mansky (2018), which overturned a similar law in Minnesota and held that passive political expression at the polling place is protected by the First Amendment.
However, the Texas law is even worse than the statute struck down in Minnesota. In Texas, it’s a crime to wear campaign-related apparel, not just inside polling places but also within 100 feet of polling place entrances, areas considered traditional public forums, like parks, streets, and sidewalks. Texas also imposes criminal penalties on violating the law.
Backed by the Minnesota Voters ruling, Jillian and Tony are fighting back in a federal lawsuit. They’re challenging Texas’ election apparel law because under the Constitution’s free speech guarantee, it should be legal for voters to wear t-shirts expressing their political beliefs on Election Day.