Free Speech

In Texas, Wearing the Wrong Thing to the Polls Could Land You in Jail

A new lawsuit says the state's electioneering statutes violate the First Amendment.

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When Jillian Ostrewich showed up to vote in the 2018 midterm elections, a pollworker denied her entry. At issue was Ostrewich's shirt, a Houston firefighters tee with union insignia, which was deemed to violate a prohibition on wearing politicized regalia within 100 feet of a polling place. Rules against "electioneering" at the polls are typically understood to restrict signs, posters, and verbal attempts to sway voters, but Texas has laid out a more stringent approach—and running amok of electioneering law there can constitute a criminal offense.

If Ostrewich's outfit choice sounds benign, that's because it was. But one measure on the ballot, Proposition B, was an initiative dealing with firefighter pay. So the "election judge" at Ostrewich's polling place ordered her to turn her shirt inside-out or go home; she felt violated but complied, went to the back of the line, and eventually cast her vote.

"On the merits, the electioneering statutes violate the Free Speech Clause of the First Amendment," argues a suit by the nonprofit Pacific Legal Foundation (PLF). In making her case, Ostrewich's attorneys invoke Minnesota Voters Alliance v. Mansky (2018), a Supreme Court precedent that struck down a similar law in Minnesota. The Texas statutes "are facially unconstitutional under [Minnesota Voters Alliance]," the suit says, "because they do not provide to the tens of thousands of election workers that enforce them any 'objective, workable standards' about 'what may come in [and] what must stay out,' resulting in 'erratic application' of the law."

That erratic application was on full display in Ostrewich's case: A county administrator specifically advised that her union shirt be exempt from any electioneering charges, though that guidance came the day after Ostrewich voted. The t-shirt "did not mention any candidate, measure, or political party, much less take a position," writes PLF. Texas electioneering law also prohibits any clothing bearing a slogan or the name of a past candidate, including those not in Texas and those no longer living.

"I think one of the very troubling aspects of the Texas law is that election judges disagree on what is and what is not electioneering," says Wen Fa, the lead attorney on Ostrewich's suit. "Some judges see Black Lives Matter as electioneering. Others do not. Some people see Second Amendment t-shirts as electioneering. Others do not. Some see Tea Party t-shirts as electioneering. Others do not."

One of the more open-and-shut cases came in 2016, when Brett Mauthe wore a "Make America Great Again" hat paired with a "Basket of Deplorables" shirt, both clearly indicating his support for presidential candidate Donald Trump. Mauthe agreed to remove the hat but refused to turn his shirt inside-out. He was arrested and eventually released on $500 bond, as if he was somehow a danger to the public.

That sort of crackdown is rare; enforcement is typically limited to arguments between clerks and voters. But then, arguments are one of the things the law is supposed to stop. "States are worried about other voters being offended that someone is supporting Trump, or supporting Biden, or supporting whichever other candidates, so they prevent voters from wearing them in the first place," notes Fa. (Fa knows of no evidence that any voter-on-voter confrontations have stemmed from a t-shirt in Texas.)

"If you just ask a person on the street," says Fa, "you would not really think of this as a criminal offense. People have the right to express themselves.  They have the right to express their political opinions. And their right to free speech does not stop on election day."

NEXT: The Guillotine Mystique

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  3. Because we can’t have elections where Democrats dont keep Blacks and AmerIndians from voting, states devised a solution to keep all campaigning from the voting area.

    Just go, wait in line if needed, vote, and then leave.

    1. Binion, you might try adding in historic perspective as to why these laws exist.

      At our voting location, masks were not required but my wife and I were told to stand 6 feet apart or the old man polling worker said something to us. We stood together.

      I’m sure he was upset that Georgia would be firmly with Trump.

      1. Actually, I’m curious about why these laws exist. Are people so mentally suggestible that seeing a Trump or Biden or Jorgensen shirt inside the polling facility will make them suddenly change their mind?

        Or is the idea that a bunch of people wearing the same candidate’s shirt might hang out at the polls and intimidate folks who might be inclined to vote the other way? And even if so, as long as they aren’t actually interfering with voters, so what if they’re standing around? The ballots are secret. Vote for whoever anyway.

        Obviously, if the group of “People For Mandatory Banana Eating” are stopping voters and checking their ballots, arrest them. Otherwise, this all seems fairly ridiculous.

        1. Agreed! Sticks and stones may break my bones, but T-Shirts and MAGA hats will never hurt me!

          Now MANDATES about what I MUST wear? THAT is a different animal altogether!

          Which brings us to this:

          For almost 4 years now, I have been running scared that the Trumptatorshit would FORCE me (and other more-open-borders-kinda folks) to wear a blue MALGA hat, in accordance with my views, which would obviously Make America LESS Great Again! My blue hat would make it plain for all to see, that I am maliciously MALGAlicious, malignantly MALGAlignant, and malodorously MALGAlodorous! I am breathing more easily now, suspecting that my fears will NOT be realized after all!

          Now I am starting to worry that I might be judged (under a Bidentatorshit) to be NON-Woke! In an era of MAW (Make America Woke) and ORDER, I might be forced to wear a red hat, labeled, “OutMAW, MAWless MAWbreaker!”

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        2. “Or is the idea that a bunch of people wearing the same candidate’s shirt might hang out at the polls and intimidate folks who might be inclined to vote the other way? And even if so, as long as they aren’t actually interfering with voters, so what if they’re standing around?”

          That already happens here. They’re loud as fuck, and beyond annoying. One election, I noted who they were screaming for, and took care to specifically vote for their opponent. Yay, if I got played by reverse psychology.

          I easily can see people already feeling intimidated by a crowd of them. Now allow said crowd into the polling place… It would be disruptive, and make this process even more of a pain in the ass than it is already.

          Keep the campaign paraphernalia in the car for the few minutes it takes to vote. The firefighter shirt is being picky, but such is where we are now.

          (And Jesus, was that really the only thing you had to wear? People call cops drama queens…they’ve got nothing on fire fighters. Really, the only vehicle you could take to the supermarket was the pumper rig? Parked right next to the curb in the very front of the store. Look at Meeeeeee!)

        3. Or is the idea that a bunch of people wearing the same candidate’s shirt might hang out at the polls and intimidate folks who might be inclined to vote the other way? And even if so, as long as they aren’t actually interfering with voters, so what if they’re standing around? The ballots are secret. Vote for whoever anyway.

          Not that I agree with the law, but I *think* the idea is that a bunch of guys stand around the polling place in white robes or brown shirts and discourage people or (((people))) from even casting a vote in the first place. And if you ban white robes, they just show up in t-shirts of their preferred candidate(s).

          1. And voter intimidation would be a problem – which we could investigate and arrest people over. This ‘ban everything just in case something bad might happen’ doesn’t fly.

            Do we lock up everyone just because some people might commit crimes? Why is this different?

            1. Again, I’m not saying I agree with the law. I’m just saying that my, or a common, definition of ‘intimidation’ includes physical appearance.

              Would you feel better if the pollworker denied her entry because they felt her shirt was intimidating voters?

            2. Whether intimidation is happening or not is way more subjective than if someone is wearing a political shirt.

              It’s easier to be equitable without causing too much trouble.

        4. It is more about keeping the peace, outside of this year you would stand in line nut to butt and there had been instances of fights breaking out over things like what someone’s shirt or hat said. There are always a few of these types so a lot easier to trample on the rights of the shirt wearers than have to keep a police presence in case a scuffle occurs.

          1. There are always a few of these types so a lot easier to trample on the rights of the shirt wearers than have to keep a police presence in case a scuffle occurs.

            I’d argue a little more liberty-oriented as well. Turning your shirt inside out at the request of a pollworker is much less burdensome and oppressive than paying uniformed union members with the legal ability to detain anyone who looks like they have a knife in their pocket to stand outside polling locations.

          2. Akin to the keeping the peace issue, polling places are also a big NO GO area for concealed weapon carriers. I don’t remember whether it’s the felony that getting trespassed out of a 51% area is, but it’s not good.

            OTOH, polling places I’ve seen don’t have metal detectors…

  4. One of the more open-and-shut cases came in 2016, when Brett Mauthe wore a “Make America Great Again” hat paired with a “Basket of Deplorables” shirt, both clearly indicating his support for presidential candidate Donald Trump.

    And what, pray tell, made this an “open-and-shut” case when wearing a shirt showing support for a union when a measure to increase the pay of that union is on the ballot is apparently an “open-and-shut” case in the other direction? Neither his hat nor his shirt specifically named Trump nor urged voting for one candidate over the other, what’s the problem? Well, you “know” which candidate he supports and you “know” he’s electioneering in favor of that candidate – which way do you suppose the lady wearing the union t-shirt was going to vote and would encourage you to vote?

    1. Just gonna say that Trump is not necessarily The other direction when it comes to unions.

  5. I still remember when it was racist to say a black panther with a baton outside a polling station was wrong.

  6. Hey, I have a hand-decorated “T Shirt” that says “Legalize Freedom”!

    (I recall only once getting a quick sharp, or at least astonished, look, in public, when wearing it).

    “Legalize Freedom”… Would that be anti-Republican, anti-Democrat, and pro-Libertarian, since ONLY Libertarians believe in legalizing individual freedom, any more? Yes, I would heavily bet this is so, and I would be a criminal in Texas!

  7. Texas does it right. ID required, absentee ballots based on need, no showing up at the polls to harass anyone, ballots counted that day.

    Unlike shenanigans and malarkey from east coast democrat strongholds who are trying to disenfranchise anyone who isn’t woke far left blmantifa and wiling to smash windows to get what they want.

    How many blmantifa terrorist protests did you see in Texas this year. Yeah that’s what I thought.

    1. Austin for weeks on end, but yeah.

      Very surprised that Houston didn’t get hit too badly. Quannell Ten’s check must’ve cleared…

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  9. Libertarianism FTW! Nothing says freedom like advocating for public sector union employees’ right to self-advocate at the polls. Forcing one person to turn their shirt inside out to vote is an infringement on the right to vote. More QI for public sector employees says I! -Boehm

    1. Well, libertarianism, much like the Constitution, is a suicide pact.

  10. Voter suppression is part of the Republican platform all over the country, not just Texas.

    And for libertarians this should be outrageous because it’s nothing but government interference in what should be a free marketplace, this time the marketplace of ideas. After all, libertarian religion says it’s the marketplace that will always point in the right direction, and if government interferes in participation in the marketplace, it will thwart progress.

    But then, phony libertarians, like most commenters here, live government interference and overreach…as long as it’s Republicans doing it.

    1. Sure. And promoting illegal voting, either old Chicago style or new immigrant style, must be part of the Democratic platform, too, right?

      Building with straw is fun!

    2. As for government overreach, that is THE core left wing ethic and policy, so fuck off.

      1. Have fun this Election Day!

        Best,
        Jack

    3. Lefty citations always fall off.

    4. >>Voter suppression is part of the Republican platform all over the country

      lol. Biden +17 in Wisconsin.

  11. Looking forward to less-restricted speech in polling places, with the God Hates Fags group shouting across the room at the BLM/antifa mob.

    But if we do more voting from home, do we have to let the rabble inside?

  12. The judge is wrong. California allows people to wear t-shirts to polling places, and look at what happened to California! Can’t let Texas turn blue, therefore firefighters must NOT be allowed to wear firefighter t-shirts! Make Texas Grate Again!

    1. Except for a mask.

      1. well yeah I’m not an asshole.

    2. Require naked voting. Gets rid of the first amendment issue.

      If you can make people wear shirts to court, then presumably requiring nudity to vote would pass constitutional muster.

      1. why not? we all know the root of “testimony” …

      2. What about tattoos?

        Get naked, then put on the blank white robe.

        1. Shit that’s so racist!

          Obviously each city could choose their own color scheme.

  13. >>So the “election judge” at Ostrewich’s polling place

    … took a brief taste of the power-candy.

  14. Or you can be more subtle; red shirt vs. blue shirt (or green, for the truly insane amongst us). Gotta wear something, it’s 40 degrees and blowing 30 kts this morning…. sorta chilly for goin’ naked.

  15. Silly ass dress codes have been with us forever.
    In pre-history, a lot of dining establishments had codes like men had to wear a tie, ladies had to wear a dress (no slacks).
    Judy Carne took care of the no slacks thing one evening when she showed up wearing a tunic top pants suit. Told of the rule, she simply took off the pants right there in the lobby, checked them, and went in to dine wearing just the tunic top.

  16. This is why we can’t have nice things.

    Texas has a perfectly reasonable law that you keep your giant signs and volunteers out in the parking lot, and not inside the polling area.

    People then get clever and loiter inside with TRUMP/BIDEN 2024 t shirts.

    Election worker gets bent out of shape by someone just standing in line to vote with her firefighter shirt.

    Voter has nothing better to do than file a lawsuit, which suggests it really was her intent to passively electioneer while standing in line.

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