Groups' Lawsuit Challenges Ban on Political Wear at Polling Places

By Anita Kumar

Thursday, December 11, 2008

RICHMOND, Dec. 10 — Three free speech groups sued the state of Virginia on Wednesday, challenging a Board of Elections policy that prohibited voters from wearing buttons and clothes with political messages at polling places.

The ban violates the First Amendment, the groups have argued. The Thomas Jefferson Center for the Protection of Free Expression, the Rutherford Institute and the ACLU of Virginia are asking a judge to strike down the policy before next year's state and local elections.

"Election Day should be a time for celebrating the personal freedoms guaranteed by our Constitution," said Robert M. O'Neil, director of the Thomas Jefferson center. "On that of all days, government should not be telling citizens how to express themselves."

Fairfax County resident Jill Borak, who was named in the complaint, said a poll worker told her that a sticker supporting Democratic presidential candidate Barack Obama was "illegal" and that she had to remove it when she went to vote Nov. 4, according to the lawsuit. Borak complied but was "greatly distressed," the complaint says.

The lawsuit was filed in federal court in Richmond against the Virginia State Board of Elections and the registrars in Fairfax County and Richmond.

Nancy Rodrigues, secretary of the State Board of Elections, and Fairfax Deputy Registrar Gary Scott said they had not seen the lawsuit and would not comment.

The groups represent Borak and Richmond resident Charles Epes, who also had to remove a pro-Obama button and was told that if he did not, he would not be allowed to vote, according to the lawsuit. Another poll worker gave him a paper hospital smock to cover up the button and he was allowed to vote, the complaint says.

Board members have said they were following a state law that prohibits advocating the election or defeat of a candidate within 40 feet of a polling place on Election Day.

The board met Oct. 14 and decided that a person who exhibited such clothes or buttons would be asked to remove or cover them until they left the area or polling place. A violation of the law is a misdemeanor.

Virginia ACLU Executive Director Kent Willis said, "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."

The groups said the policy was enforced inconsistently by localities, with election officials having widely varying interpretations of what the rules required.

Del. David L. Englin (D-Alexandria) has drafted a bill to overturn the policy and will file it Thursday.

Tagged: elections, November 2008 Elections, politics, State news

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