Possible Class 1 Misdemeanor charges, punishable by as much as a year in jail and a $2,500 fine at the Commonwealth’s attorney’s discretion, await voters who choose to wear their political party affiliations to the polls during Election Day, according to a recent clarification to the Code of Virginia by the Virginia State Board of Elections. Several free expression and civil liberty organizations are now considering possible lawsuits against the Board because of the rule.
In a statement released Oct. 14, the board said it is illegal for voters to wear any sort of campaign materials when they go to vote and are within 40 feet of a polling entrance Nov. 4. If voters choose to wear buttons, hats, shirts and other political paraphernalia to the polls, they will be asked to remove or cover the items while they vote.
Several civil liberty groups, however, believe the rule is a violation of individuals’ right to free speech. Two Charlottesville-based groups, the Thomas Jefferson Center for the Protection of Free Expression and the Rutherford Institute, have teamed with the American Civil Liberties Union of Virginia to fight against the State Board of Elections policy, representatives of those groups said, and are presently considering taking legal action depending on how the policy is enforced at the polls.
Josh Wheeler, Thomas Jefferson Center associate director, said the board’s policy “goes too far” and is a clear violation of the First Amendment.
“If it’s not broke, don’t fix it,” Wheeler said.
The law itself is actually a reinterpretation of an older law, Wheeler noted, adding that he believes the original policy was fine as is. According to the original law, found in the Code of Virginia section 24.2-604, it is unlawful for someone to “solicit or in any manner attempt to influence any person in casting his vote” within 40 feet of any polling entrance as well as inside the polling location. In its Oct. 14 release, the Board stated the regulation prohibiting persons from wearing any attire for or against a candidate is simply a clarified reinterpretation of the law, according to the release.
Rick Sincere, Charlottesville Electoral Board secretary, said the recent reinterpretation was a result of “individual localities interpreting and enforcing the law” in an uneven manner. The Virginia State Board of Elections statement is an attempt to have all commonwealth voting precincts enforce the law in a uniform manner, Sincere added.
Rutherford Institute President John Whitehead, though, said the regulation is part of an emerging anti-free speech trend seen since the 1990s.
“People value free speech less than we used to,” Whitehead said, adding that he has seen an overall cultural trend of “tightening free speech.”
Whitehead said several Supreme Court decisions have upheld laws similar to the original regulation prohibiting attempts to influence voter decisions but noted that he believes the Virginia State Board of Elections has “taken a law and expanded it” in a clear violation of free speech.
The original law, Whitehead said, “was intended to apply to active speech” when people try to impose their own beliefs on others at the polls and not on “silent, private expression.”
Passive speech such as the wearing of political apparel involves the individual voter alone, Wheeler said, and in no way impacts anyone else. Moreover, the guidelines might be seen as creating more confusion in regards to how the policy will be enforced and how violators will be punished, he added.
According to the State Board of Election statement, if a voter refuses to comply with the policy, the registrar will file the incident and report it to the Electoral Board, which will then review the report and send it to the Commonwealth’s Attorney’s Office. Voters will still be given the chance to vote, but violators could face Class 1 Misdemeanor charges.
Sincere noted that “no one will be turned away. Any [legal] action will be done after Election Day.”
Opponents of the regulation, such as the Thomas Jefferson Center, acknowledge that the State Board of Elections has assured that everyone will still be allowed to vote regardless of whether they cooperate with the policy.
“In some way these guidelines offer a little bit of reassurance in that no one will be prevented from voting even if they refuse” to remove their items, Wheeler said.
Whitehead noted that he does not anticipate that the regulation will affect voter turnout.
“This election is so important,” Whitehead said.
Meanwhile, Charlottesville Deputy Commonwealth’s Attorney Claude Worrell said he anticipates no problems Nov. 4 and does not foresee any charges being filed. Whitehead and Wheeler both said, though, that the ACLU of Virginia, the Thomas Jefferson Center and the Rutherford Institute may still file a lawsuit against the State Board of Elections after the upcoming election.
“We’re going to wait and see what happens,” Whitehead said.
Sincere, though, said because Virginia’s voting policy laws are already among “the least restrictive in the nation” and “very liberal,” he believes the groups will have little success if they choose to file a lawsuit.
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