The Work

October 17, 2008 5:49 PM

ELECTION 2008: Swing State Lawsuits Debate Bans on Voter Attire

Posted by Rachel Breitman

While states continue to squabble over verifying voter registrations, a new obstacle to a smooth election day may come from legal challenges over voter apparel.

A lawsuit filed Wednesday in the United States District Court for the Eastern District of Michigan by members of the American Federation of State County and Municipal Employees (AFSCME) demanded that state election inspectors be prohibited from turning away people wearing campaign paraphernalia. 

"We believe it is unfortunate to abridge the fundamental right to voice your constitutionally protected opinions based on how you dress when you go to vote," Herbert Sanders of the Sanders Law Firm in Detroit, who represents AFSCME, tells The Am Law Daily. 

Sanders says that campaign clothing is protected speech, and accuses Michigan Secretary of State, Terri Lynn Land, and the Director of the Michigan Bureau of Elections, Christopher Thomas, of violating the Voting Rights Act of 1971 and the first amendment.

Michigan isn't the only state in a tug-of-war over election-day garb. Maine, Montana, Vermont, and Kansas already have statutes prohibiting campaign attire as a type of electioneering, which is forbidden within 100 feet of the polls. Tuesday, the Virginia Board of Elections also voted to ban garments endorsing a candidate from the polls. States that take a more laissez faire attitude towards election day fashion also have seen some legal action.

On September 4, a Pennsylvania Board of Elections memorandum defined political clothing as separate from the restrictions against electioneering. Two weeks later, two state election officials filed a suit against Chester Harhut, commissioner of the state Bureau of Commissions, demanding that campaign clothing be prohibited because it could "affect the health and safety of voters."

Linda Kerns, of the Philadelphia-based Law Offices of Linda A. Kerns, filed the suit on behalf of elections judge Richard Kraft and elections inspector John Dickenson. Attorneys for the Secretary of State's office defended Harhut, and the American Civil Liberties Union and the Philadelphia firm Pepper Hamilton petitioned the court to intervene on the state's behalf.

"It will put all this digression in the hands of election officials, making them fashion police," Pepper Hamilton litigation partner Stephen Harvey tells The Am Law Daily. The court denied the ACLU's petition, but has yet to rule on the suit.

Voting advocates admit that election-day apparel is a gray area in the law.

"In 1992, the Supreme Court upheld a Tennessee law prohibiting any campaigning near polling places, but it did not address the specific issues of whether you can wear a hat or pin to vote," Laughlin McDonald, director of the ACLU Voting Rights Project, tells The Am Law Daily. "Our advice is to tell people not to make an issue of it. You go to the polls for one reason: to vote, and that’s just what you ought to do."

But the debate over campaign buttons hasn’t been confined to polling places. Friday a New York City judge ruled that city schools can ban teachers from wearing campaign gear in class, though teachers may post campaign materials on union bulletin boards. The United Federation of Teachers represented by  Alan Klinger, the managing partner of Stroock & Stroock & Lavan and civil rights lawyer Norman Siegel had sued the city on October 10. Paul Marks, of the New York City Law Department, represented the New York City Department of Education.

"As to wearing buttons in the classrooms, the judge said it was a close question," says Klinger, who adds that the UFT has not yet decided whether to appeal.

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