Texas Election Code: Your Vote Matters– And So Does Your Outfit!
November 5, 2024
By: Angelica Radomski
While an individual’s right to choose to wear any clothing they wish is generally protected by the First Amendment, some states, including Texas, have adopted laws restricting a voter’s ability to wear political clothing or accessories at polling places.
When the United States Supreme Court struck down a Minnesota statute that restricted “political” apparel at polling places as unconstitutional, it seemed reasonable to think that states with similar laws would revise or repeal them to align with the Court’s ruling. Yet, in 2021, when the Fifth Circuit Court of Appeals had the chance to overturn a similar law in Texas, the court chose to uphold its constitutionality instead.
In 2018, The United States Supreme Court struck the Minnesota statute as unconstitutional by reasoning that the statute’s terms were too vague. The Court emphasized that states may impose reasonable limits on speech in nonpublic forums, such as polling places, so long as any content-based restrictions are “reasonable” and have “objective, workable standards.” However, because the statute failed to define the word “political,” it failed to provide workable standards for enforcing the law. The Court reasoned that the law should not rely on election workers’ “mental index of the platforms and positions of every candidate and party on the ballot.”
Thus, when a similar Texas law was challenged only three years later, it was anticipated that the court would also invalidate it for lacking objective and workable standards, just like the Minnesota statute. However, that did not happen. In 2021, the Fifth Circuit Court of Appeals upheld Title 6 of the Texas Election Code, which governs the conduct of polling places in the state.
Section 61.003 of the Texas Election Code makes it illegal for a person to loiter or electioneer for or against any candidate, measure, or political party within 100 feet of a polling place. Although the code defines electioneering as “the posting, use, or distribution of political signs and literature,” it fails to define what constitutes “political.” This lack of clear standards was exemplified in 2018 when a Texas woman wearing a Houston firefighter shirt was told she would have to turn her shirt inside out in order to vote.
The woman in Ostrewich v. Hudspeth sued Texas state and local officials for violating her First Amendment rights. The Fifth Circuit Court of Appeals considered whether the section of the Texas Election Code was unconstitutional. Despite the fact that the law failed to clearly delineate what qualifies as political signs and literature, the Court upheld its constitutionality, essentially disregarding the Supreme Court’s decision just three years earlier.
Recently, on October 1, 2024, Christina Worrell Adkins, the Texas Director of Elections, sent out an election advisory, no. 2024-29. Adkins wrote, “during the voting period and inside this protected area, it is prohibited to electioneer, including expressing preference for or against any candidate, measure, or political party, regardless of whether they are or not on the ballot….” The advisory bolded the part emphasizing that any expression of preference regardless of whether or not they are on the ballot is prohibited.
Through its advisory, Adkins clarified that it is up to the voting clerk or presiding judge to use their discretion when enforcing the election law. This situation further intensifies the Supreme Court’s concern raised in 2018 regarding inconsistent standards being applied at different polling locations. Whether or not a voter’s shirt could be considered as “political” can vary depending on which polling location the voter visits.
Although election officials were recently advised by Director Adkins, there already seems to be confusion at polling places. On October 22, 2024, a man wearing a Donald Trump t-shirt was confronted by poll workers while waiting in line to cast his vote during early voting in Texas. He was told that he had the option to change his shirt or to leave without voting. After being told to leave several times, the man called the police. Even the police officers were unaware of the law and allowed him to cast his vote. Although the man voted, the man explained that multiple poll workers took photos of him and that the presiding judge told one of the workers to obtain a copy of his ballot.
Despite the fact that the Texas Election Code has been in effect for years now, the man stated that he wore a Trump hat when he voted last year without any issues. This further exemplifies that without clear standards to enforce this law, there is a risk that the law will continue to be disproportionately enforced.