"CHARLOTTESVILLE, Va. — Declaring that the Virginia State Board of Elections has "pitted itself against the ideals of free expression embodied in the United States and Virginia Constitutions," John W. Whitehead, president of The Rutherford Institute, is urging the SBE to rescind a policy adopted on October 14, 2008. The policy expressly prohibits voters from showing, displaying or exhibiting "any material, object, item, advertisement, or piece of apparel, which has the purpose of expressly advocating the election or defeat of a clearly identified candidate." A copy of Whitehead's letter is available here.

"Thomas Jefferson understood that the first duty of government is to protect the freedom of expression," said Whitehead. "Regrettably, the State Board of Elections shirked this important civic duty when it adopted what essentially amounts to a dress code policy. This policy not only undermines the First Amendment right to free speech but will most likely affect the right to vote."

The ban on displaying political messages on apparel at polling places was proposed and approved at the October 14, 2008, meeting of the Virginia State Board of Elections. Since its passage, The Rutherford Institute, along with other civil liberties advocates in the state, has voiced concerns that the policy's language is overly vague, which could very well result in local officials across the state gagging free speech and/or disenfranchising Virginia voters. The courts have recognized that states may regulate speech in and around polling places in order (1) to protect the right of persons to vote freely for the candidate of their choice, and (2) to protect against fraud and preserve the integrity of the voting process. To this end, Section 24.2-604 of the Code of Virginia was intended to prohibit electioneering or political solicitation within 40 feet of a polling place. However, as John Whitehead pointed out in his letter to Jean Cunningham, chairman of the SBE, "This statutory attempt to protect voters from political harassment is a far cry from doing away with free speech altogether, especially the kind of passive political expression exhibited on apparel, buttons or other paraphernalia that is now being targeted for censorship by the SBE." The Rutherford Institute has already been contacted by numerous individuals who are concerned that if they choose to exercise their constitutionally protected rights of the freedom of speech and expression, they will be denied the right to vote." (The Rutherford Institute, October 16, 2008)