CHARLOTTESVILLE, Va. — Free expression at polling places has become a contentious issue in recent years, with controversies over “ballot selfies,” the wearing of political apparel to polling places, and even apparel that does not explicitly reference candidates, ballot issues, or politics. In an effort to provide clarification on lawful First Amendment activities in polling places, The Rutherford Institute has issued a Constitutional Q&A on First Amendment activities at polling places, especially as it relates to clothing, buttons and selfies. Should anyone need legal assistance in exercising their constitutional right to vote, please contact The Rutherford Institute at firstname.lastname@example.org.
“Political speech is essential to and is the essence of self-government. It is for this reason that the protections afforded to expression under the law have the fullest and most urgent application to speech that relate to politics,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “In no way does passive political speech as expressed on clothing, buttons, stickers or other paraphernalia threaten the order of polling places or the freedom of other voters to cast their ballots according to their conscience.”
The U.S. Constitution affirms that all citizens 18 years of age and older have the right to vote. However, while the First Amendment assures citizens the right to freedom of speech, expressive activities at polling places have been qualified and restricted over the years. For example, all states have laws that establish a “buffer zone” in and around polling places where persons may not engage in political campaigning and active solicitation of voters.
While these restrictions on speech have been upheld by the courts as a reasonable measure for maintaining order and preventing intimidation voter intimidation, citizens may engage in other kinds of “passive” political speech at polling places, such as wearing t-shirts or buttons advocating for a candidate or ballot measure. Ultimately, whether voters may wear political apparel to polling places depends upon the law of the state where the polling place is located. For example, Virginia law expressly allows voters to wear apparel at or near polling places that advocates for a particular candidate or ballot issue, while California law expressly prohibits this kind of political speech at voting precincts.
State law also may forbid the practice of taking a “ballot selfie,” a picture of oneself with your completed ballot taken for the purpose of posting on social media. However, several recent court decisions have ruled that the laws violate the First Amendment by unreasonably restricting speech. Additionally, voters with handicaps or age disabilities are entitled to accommodations at polling places so they are not dissuading from exercising their right to vote.