George,

On the issue of "election wear" in Virginia:

In the 1992 case of Burson v. Freeman, the U.S. Supreme Court upheld a Tennessee law that stated

"Within the appropriate boundary as established in subsection (a) [100 feet from the entrances], and the building in which the polling place is located, the display of campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position on a question are prohibited."

The Virginia law states

"During the times the polls are open and ballots are being counted, it shall be unlawful for any person (i) to loiter or congregate within 40 feet of any entrance of any polling place; (ii) within such distance to give, tender, or exhibit any ballot, ticket, or other campaign material to any person or to solicit or in any manner attempt to influence any person in casting his vote; or (iii) to hinder or delay a qualified voter in entering or leaving a polling place."

Although the Supreme Court case did not deal specifically with the issue of a voter wearing campaign material (T-shirts, buttons, etc.) into a polling place in Burman, the Court did uphold the entire statute, including the terms "display of...campaign materials." It is safe to assume the Court would also uphold the ban on the "exhibit [of] any...campaign material" language found in the Virginia statute. Unless there is another statute of which I am unaware, the Virginia statute theoretically is to be applied uniformly across the entire state. (As a practical matter, however, different election boards may interpret it differently until a higher governmental authority tells them otherwise). Taken literally, the language of the Virginia statute encompasses the wearing of campaign materials by voters. It is therefore understandable that most election boards interpret the statute as preventing voters from wearing campaign materials within the polling place.

The Supreme Court upheld the statute in the Burson case because it served the compelling government goals of preventing "voter intimidation and election fraud." Even though many poll workers are volunteers, as the people in charge their wearing of campaign materials could be both intimidating and raise questions about the neutrality of the process. Further, limiting the people allowed into the polling place to poll workers and voters frees the former from the potentially unmanageable task of monitoring the activities of a much larger group, and shields the latter from the potentially intimidating efforts of over zealous campaign workers at the moment one walks into the voting booth.

I find it difficult to comprehend, however, how either "voter intimidation" or "election fraud" are prevented by prohibiting individual voters from wearing campaign materials as they walk into the voting booth. The poll workers still have to monitor the same number of people; moreover they now have to devote time to dealing with the potentially disruptive situation of telling voters that they have to remove their campaign buttons or T-shirts. In terms of the voter, is there any rational basis to believe, for example, that seeing a "Vote Bush" or "Vote Kerry" button on a fellow voter would intimidate another as he or she walked into the voting booth?

The right to vote is perhaps the most important form of free speech. While many choose not to publicly state their political choices as they exercise that right, others feel strongly about the symbolic importance of expressing their political views at the moments they walk in and out of the voting booth. Unless the government can demonstrate that such expression has a deleterious effect on the electoral process, it should not be in the business of telling people what they can wear as they vote.

Josh Wheeler (electronic mail, November 5, 2004)