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The electoral dress code lawsuit

Still interesting.

A U.S. magistrate judge this week recommended striking down parts of Texas law that prohibit wearing political apparel within 100 feet of a polling place as unconstitutionally vague — but upholding a narrower provision that specifies that clothing bearing messages related to what’s on the ballot can be banned.

The issue first arose in 2018 when Harris County resident Jillian Ostrewich wore a Houston firefighters T-shirt to a polling place and election workers told her to turn it inside out because it related to Prop B, a pay parity measure for firefighters on that ballot that year. Claiming she was unconstitutionally censored and her right to free speech infringed upon, she sued Harris County and state officials.

The case puts to the test a U.S. Supreme Court ruling from June of that year in which the justices struck down a Minnesota law that banned voters from displaying “issue-oriented” apparel at the polls for being overbroad. The Texas suit was brought by Pacific Legal Foundation, the same California-based libertarian public interest law firm that won the Minnesota case.


U.S. Magistrate Judge Andrew M. Edison in his report on Tuesday said the election judge had a constitutional basis for rejecting Ostrewich’s shirt because it had a clear relationship to the ballot measure, even if it did not explicitly say to vote for that measure. Under that law, Edison said, Ostrewich had not been harmed and therefore was not entitled to damages.

Other parts of the law, however, which define “electioneering” as advocating “for or against any candidate, measure, or political party” through “posting, use, or distribution of political signs or literature” leaves room for misunderstanding, he said. Ostrewich would have no way of knowing whether wearing that same shirt in a future election, even if the measure weren’t on the ballot then, could also be considered illegal electioneering.

Those parts of the law “do not give Texas voters notice of what is expected of them in the polling place, and they do not provide election judges with objective, workable standards to rein in their discretion,” Edison wrote. “This is impermissible under the First Amendment and these statutory provisions should be struck down as unconstitutional.”

See here for the background. Seems reasonable to me to say that you can be barred from the restricted area for wearing a shirt that directly addresses the current election, but barring a shirt that’s not about that election may be too broad. The plaintiffs are claiming a victory, even though their main actor was denied any relief; I think the defendants can be reasonably satisfied with this as well. This was a recommendation and not a ruling – the parties have two weeks to hammer out an agreement of some kind, which will then need to be approved by the judge. I’ll be honest, I had no idea that was a thing, but here we are. The lawyers out there, what do you think about this?

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  1. David Fagan says:

    24 days and counting………

  2. voter-worker says:

    Can’t wait to wear my “I *heart* CRT” to a suburban polling place.

  3. voter_worker says:

    oops left of /s. My druthers would be absolutely no hint of anything political on voters’ apparel or person, and a protected corridor to the polling place entrance for voters who don’t want to be pestered by the campaigns who send their workers to the polling places in hopes of doing last-minute conversions.

  4. Bill Daniels says:

    I once was asked to turn my Ron Paul shirt inside out in order to vote, when he wasn’t even on the ballot that year.

    “….barring a shirt that’s not about that election may be too broad.”

    I thought the same thing as Kuff, so I was a little surprised at the request, but I complied, right there in the polling place.

    As to the campaign workers set up in the parking lots……if it’s a candidate I really like, I usually stop by and thank them and ask how they think it’s going so far. Also, it’s interesting people watching to see who walks up and engages the folks campaigning for the OTHER candidate.

  5. voter_worker says:

    @Bill I don’t like door-to-door campaigners, I don’t participate in political events, I decide who to vote for remotely as it were and I desire my voting in person to be as clinically bureaucratic as going to a medical appointment. I don’t desire to foist that on anyone else but I vaguely dread opening the door to a more contentious atmosphere at the polls. If it happens, it happens though.