On Election Day, after you have rushed to the polls, how would you feel to be turned away because of your apparel? The regulation of voter apparel posed a real issue for residents in Pennsylvania. Residents of the state were prohibited from voting because they were wearing T-shirts endorsing candidates for office in the polling place. Subsequently, the electioneering battlegrounds were drawn, and the effects on the right to vote involved passive electioneering. Passive electioneering refers to the method of influencing voters by wearing campaign t-shirts or carrying pamphlets to the voting location.
Section 1220(c) of the Pennsylvania election code prohibits electioneering but the state law does not define the term. Subsequently, defining the scope of the term has been left to the individual interpretation of the County Boards of Elections. Local counties have interpreted the term differently. Many Pennsylvania counties, including Philadelphia and Allegheny, have long allowed voters to vote wearing clothing, stickers, and buttons endorsing candidates and there have been no disruptions or significant problems. These counties follow the recommendations of the Pennsylvania Department of State. In a memorandum to the County Boards of Election the Commonwealth of Pennsylvania Department of State recommended that voters be allowed to electioneer by passive methods. The Department believes that as long as the voters take no additional steps to attempt to influence voters in the polling place the right of the franchise should not be denied.
The memorandum resulted in pending litigation. The result of the pending case, Kraft v. Harhut, should end the statewide debate. The American Civil Liberties Union of Pennsylvania (ACLU) seeks to join the Commonwealth in challenging any effort to enforce a statewide dress code for voters. The ACLU does not endorse a narrow interpretation of the term electioneering. The ACLU opined that sustaining a narrow interpretation would implicate the First Amendment free speech rights. The primary concern of the ACLU is not to turn a registered voter away from the polls as well as the possibility of the rule to be applied in a discriminatory fashion. Nevertheless Lawrence County observes a narrow interpretation. The county will not allow passive electioneering and has turned away voters dressed in party endorsing apparel.
The argument for the implementation of a statewide dress code will rest heavily on the lower court’s interpretation of the state law. Lawrence County does not wish to make a distinction for lesser forms of electioneering. Also the pending lawsuit claims that allowing voters to wear partisan–affiliated clothing would affect the health and safety of voters. These arguments certainly may pass muster. The Supreme Court has historically held that restricting free speech at a polling place may be necessary to make sure voters may freely exercise a right to vote for the candidate of their choice. It is also well–established that the state has the right to protect voters from any confusion and undue influence within the polling place.
Whether party-endorsing apparel promotes an unsafe environment for voters remains unanswered. How the court will strike a balance remains questionable.
Latisha Woodford is a second-year student at William and Mary Law.