Voters face many important choices when they cast their ballots on Election Day. But one choice they shouldn’t have to make is between their right to free speech and their right to vote.
Yet voters in Texas face exactly that choice, thanks to a state law that gives election workers the power to stop you from voting if they don’t like the attire you’re wearing.
Take the example of Tony Ortiz, a suburban Dallas resident who showed up to vote wearing a cap bearing President Trump’s trademark slogan “Make America Great Again.” One election worker blocked him from voting. When Ortiz responded by pointing out that Trump wasn’t on the ballot, another poll worker threatened him with arrest.
Texas law makes it a crime for voters to wear attire related to a candidate, issue or political party. But exactly what is the standard to determine how “related” a shirt or hat is to a given ballot issue? And who decides?
Those questions have plagued Texans for over a decade. One voter was challenged for wearing a souvenir shirt she bought during an excursion to Alaska. The t-shirt said “Seward, Alaska,” and “Outdoor Enthusiast,” but an election worker feared it would be interpreted as support for former vice presidential candidate Sarah Palin. Another election worker forced a woman to cover up a “Vote the Bible” t-shirt because it might be offensive to some. In a particularly extreme case, one Texan spent a night in jail for the criminal offense of wearing a “Deplorables” t-shirt.
Now Texans are fighting back to protect their constitutional rights. Pacific Legal Foundation (PLF) is representing Ortiz in a civil rights case filed in federal court. Last month, the government asked the district court to throw out the case. But Ortiz will not retreat from his right to free speech, and tomorrow will submit his arguments to the court.
There’s precedent to support Ortiz’s case. Last year, PLF secured an important free-speech victory for voters in Minnesota. In Minnesota Voters Alliance v. Mansky, the Supreme Court held that restrictions on “passive” political expression at the polling place must be guided by objective, workable standards.
Minnesota’s attorney highlighted the dangers of the law he was trying to defend. A t-shirt with the text of the U.S. Constitution’s First Amendment, he said, would be allowed in the polling place. But a shirt with text of the Second Amendment? That’s against the law. If that sounds to you like an absurd, subjective and inconsistent standard, you’re in good company: the Supreme Court agreed.
The same absurd, subjective and inconsistent standards plague Texas law. Election officials have unfettered discretion to block apparel they don’t like. They can even issue arrest warrants in case a voter happens to disagree with their dictates.
But how are election judges, or voters for that matter, supposed to know when a t-shirt is sufficiently related to a candidate or ballot issue? The lack of objective standards means Texas law inevitably will be enforced inconsistently — precinct by precinct, from one election official to the next. Texans must stake their First Amendment rights not on the Constitution but on the whims of whomever they run into at the polling place.
Voters don’t shed their constitutional rights at the polling place. Texans such as Tony Ortiz shouldn’t face criminal charges just because their shirts or hats express messages an election worker doesn’t like.
Government officials may disagree with a wide range of messages from “Make America Great Again” to “I’m with Her” to “Black Lives Matter” to “#MeToo” — but they’re not allowed to silence them. In Minnesota Voters, the Supreme Court announced that it would protect voters from the government’s efforts to censor them on Election Day. It’s time for Texas to do the same.
Wen Fa is an attorney with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow him on Twitter @WenFa1.
This article was originally published by The Hill on May 28, 2019.