Can Your Clothes Keep You From Voting On Election Day?

"What you wear to the polls on Election Day could prevent you from voting." E-mail chains making that claim have been circulating lately, prompting some voters to ask, just what can you wear to the polls? Doug Chapin, an election expert at the Pew Center, and Gracia Hillman, a Commissioner with the U.S. Elections Assistance Commission, discuss the fashion laws of voting.

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MICHEL MARTIN, host:

I'm Michel Martin, and you're listening to Tell Me More from NPR News. Coming up, the guys in the Barbershop on last night's VP debate. But first, we are going to cleanup some business from last week, T-shirtgate. Yes, we had to say it. In last week's Barbershop, we mentioned some talk making the rounds, mostly on emails, about whether or not you could be turned away from the polls if you show up wearing buttons of T-shirts promoting a particular candidate. The guys in the shop's had based on their reporting, you can wear whatever you want to go vote unless you are in election judge or poll worker. And they are already planning their outfits.

ARSALAN IFTIKHAR: I'm going to wear my biggest Obama T-shirt on Election Day and see what they'd do to me if they...

JIMI IZRAEL: I'm going to wear my Jimmy Walker kid dynamite T-shirt on Election Day and dare anybody to say anything about it.

MARTIN: But some of our listeners emailed us to say that in some states, wearing a campaign T-shirt or button or scarf, whatever, may be a violation of election rules. We felt that we owed it to you and to us to set the record because we want to know. So we've called Doug Chapin, he's an election expert at the Pew Center on the states, and Gracia Hillman, she's a commissioner with the U.S. election assistance commission. They're both here with me in Washington. Thank you both so much for coming.

Mr. DOUG CHAPIN (Election Expert, Pew Center): Thank you.

Ms. GRACIA HILLMAN (Commissioner, Election Assistance Commission): Thank you.

MARTIN: First Gracia. Are you aware of these emails going around saying, don't wear you Obama shirt, don't wear your McCain hat to the polls, you'll be turned away.

Ms. HILLMAN: I have been made aware of those. And I think what happens is what - is a law in one state, is that expected to be across the country. And that's not true.

MARTIN: OK. So what's so clarify. What is the law?

Ms. HILLMAN: It is up to the prerogative of the state to determine what involves campaigning and electioneering. And in some states, you as a voter can go into the polling place with campaign T-shirt or a button, and vote as long as you're not hanging around campaigning for the candidate and doing other partisan campaigning activities, that's fine.

MARTIN: So in fact people who will recall as they go to the booth there's sort of - there's usually a poster put-ups somewhere saying, no electioneering beyond this point.

Ms. HILLMAN: Right. Exactly. And so people on the sidewalk - I mean, all voters have the experience. You're walking into the polling place and there are people handing you literature and asking you to consider the candidate. Once you get inside the polling place, the voters are supposed to be left alone if you will to make their choices in private and to cast their votes as they want to. Other states restrict that. In the District of Columbia for example, if you came in with a campaign T-shirt, you would be asked to cover it up, that means some people have had to turn the T-shirt inside out. Obviously if you have a button it's easy to remove the button. But if you've got a T-shirt on it it's a little more tricky.

MARTIN: So it is in fact the case that in some states, this is on a state-by-state basis, you can be turned away if you're wearing a T-shirt or a button or something. Or you can be asked to remove it or cover it or make it not visible.

Ms. HILLMAN: Right. Not so much turned away but you're asked to cover it and to not go into the polling place with the...

MARTIN: Who decides that?

Ms. HILLMAN: That would be state law.

MARTIN: But who's the person - who's the arbiter of this?

Ms. HILLMAN: You mean when you come in?

MARTIN: Oh, when you come in....

Ms. HILLMAN: People who are designated as election judges or poll workers. And you know, what we say to people is please volunteer to be a poll worker, because you then can learn what the laws are, and you can help your neighbors in your community understand and be one of the people to give this advice.

MARTIN: Doug, what's your take on this?

Mr. CHAPIN: Well, I think Gracia has it exactly right. I think that the concept, it's called passive electioneering. Obviously, those signs you see no electioneering create what we election folks call a bubble, which is supposed to surround the polling place. And the issue with T-shirts or buttons or other paraphernalia, whether or not you're engaged in passive electioneering. And the trick usually is to find a way to balance individuals' rights with the desire to make the polling place a safe place. Sort of a shade tree from the heat of the campaign. And so poll workers are charged under some state laws with making sure the people aren't violating that. Now having said that, I think that really common sense should most often prevail. You'd certainly don't want to put yourself in a situation either as a voter or as a poll worker where you are causing a problem at the front of the line. Because there will be lots of people in the line come November.

MARTIN: But just that's be really clear about this that in some states - and maybe can you tell us what states are likely to enforce the law in this way? You can be asked to remove or cover a button or something, or a t-shirt supporting a particular candidate.

Mr. CHAPIN: Yeah. I can give you a state by state and Gracia is right, that it is very much almost a street level bureaucracy thing or the poll worker sometimes makes that call. I do know that many jurisdictions are now encouraging polling places to have large t-shirts, windbreakers, other such things just in case someone - just like you have a flashlight in case the power goes out. You want to have something to just keep people moving through the polling place in an orderly fashion.

MARTIN: Like some restaurants have jackets for the gentlemen - at some fancy restaurants. It's not that I go to any. A fancy restaurant would have a jacket for a gentleman and say, you know, you're not conforming to our dress code.

Ms. HILLMAN: There is a way...

MARTIN: Does that - so in the District of Columbia, you're saying that is a fact...

Ms. HILLMAN: Right. In the District of Columbia, it is a fact you would be asked to cover up the campaign slogan or to remove the button. Voters can find that ahead of time. If they can pull up the website of their election board, the information will be there or they should make phone call. So if there's any question as to whether in fact it's law or some subjective exercise on the part of the poll worker just a few minutes before you go to vote would answer that question.

MARTIN: Has this question been litigated? Anybody know?

Mr. CHAPIN: I don't know that it's been - the issue of electioneering has been litigated in the context of exit polls. The media is always trying to shrink the bubble around the polling place so that they can exit poll people on the way out. I don't know. I've seen a couple of law review articles discussing the conflict between free speech rights and this electioneering bubble for individual voters. I don't know specifically that it's been litigated. It certainly would be one of those where a judge would be asked to choose between two very important interests - individual's free speech rights and a sort of - I guess a voter's right as an individual speaker and then a voter's right as the member of a larger electorate.

MARTIN: But what if though you - I think that's the question here. Sort of balancing what those sort of competing interests are. What if you are - you know, we talked about the fact that voting in this country is not as convenient as it might be and we can sort of discuss, you know, whether it should be more - some people say lessen. Some people have limited time, some people work on the clock. It's already a strain to get to the polls. Sometimes people are anticipating long lines and you get there and you said I don't have time to go home and change my shirt. What do you do? And somebody said you got to change your shirt. What do you do?

Ms. HILLMAN: To go to your - I'll get to that point. But to go to your first question, I've not been aware of this particular topic being litigated. But groups have sat down with election officials to get clarification on what is campaign paraphernalia. If I'm wearing a spoof shirt, you know, Daffy Duck for president, does that qualify or not? And so, some of those have been worked out. I think, well, this isn't the easy answer a month before election because there's not a lot of time to change laws. There's no time to change laws. Community groups ought to really assess whether they think this is something they want to go to the legislature about. Next year just say this is unfair. You know, we don't see what the harm is. If I'm a campaign worker and I've got a few minutes to run in and vote, why, I have to cover up my t-shirt or, you know, can't do it.

The other side of that, though, is we know people push the envelope. So you know, when you can say it's OK to come in with a campaign button or a t-shirt, you know somebody is going to be in a polling place trying to hand out literature, trying to talk to people about why they're wearing that t-shirt and trying to promote their candidate. And that would be in violation of the appropriate campaigning restrictions to keep that kind of activity on the sidewalk. So election officials and legislatures have to strike the balance between what you do to allow the voters to have a satisfactory experience while they're voting and still allow the people who are campaigning to be able to do their thing in an appropriate location outside of the poll.

MARTIN: Doug?

Mr. CHAPIN: Yeah, I guess I agree. I think - and there's - the place for the campaign seems to be everywhere now. I mean, I took my kids to Seven Eleven the other day, and they've got Obama and McCain Slurpee cups.

(Soundbite of laughter)

Mr. CHAPIN: So the politics literally are everywhere and so as someone who really cares about elections, it's comforting to me to know that the polling place is a safe place for voters. And I guess, well, I certainly do respect individual's rights to wear what they want to wear and to express their opinion. In some ways, the way you express your opinion in a polling place is by casting a ballot. And anything that gets in the way of the ability of people to cast a ballot is something that I think we should think very hard about.

MARTIN: What about the first amendment, though? I mean, don't people have a right to express themselves?

Mr. CHAPIN: Absolutely. And I'm not talking about banning. What I'm saying, though, is that when you - we also have the right to vote, the need for individuals to cast their ballots. So the goal is to find a way - and look, I'm not going to cite you chapter and verse in the statute. I mean, this really is almost more sort of a common sense. Instead of civic engagement, something one of my colleagues call civil engagement. It's just an opportunity to have the polling place be a safe place for voters of all opinions to cast their ballots.

MARTIN: You mentioned that you're taking your kids to 7-11, a lot of people take their kids to the polls. What if the children have on campaign t-shirts? You know, a lot of kids these days are very interested in politics.

Mr. CHAPIN: I feel like I'm back in law school, I mean, I think - look I think the hypotheticals can go on and on. And I think you're right - where there's many people, as they're going to cast their ballots in as many different places, there's always the opportunity for that to happen. Common sense just needs to prevail both as the voters...

MARTIN: But what is common sense, what is common sense?

Mr. CHAPIN: I think in this election given as many people who are going to go to the polls, I think if there's even if you think that there's even the slightest possibility that your attire be it a candidate's t-shirt or some other piece of apparel is going to somehow raise a problem at the front of the line for you and the poll worker, and let's be honest the people behind you in line. Then, I think you need to think hard, that I think the polling place is a place to cast the ballot. The campaign has just about the rest of the country to itself.

MARTIN: Gracia, what do you think

Ms. HILLMAN: Well, on the common sense , if would be left up to the poll worker to decide is this four-year-old child with a campaign t-shirt would be violating the issue and one with hope that what Doug referred to as common sense would prevail to say this child isn't saying anything, this child isn't campaigning. On the other hand, if the child were precocious on telling everybody vote for my candidate, my candidate is so and so. Then I think the poll worker would have a responsibility to talk to the adult and say this is not activity that's permissible.

MARTIN: But if it's for my mommy? My mommy is a candidate, vote for my mommy.

Ms. HILLMAN: Well, that's campaigning.

MARTIN: That's campaigning.

Ms. HILLMAN: You know, and bless the child's heart, you know, but inside the polling place - because I think most voters do when they get in to the polling place want to have that little bit of down time if you will away from the heat of the campaign.

MARTIN: It can be very daunting to run that gauntlet of people handing out flyers and things of that sorts, just they can. Gracia, I have to ask you briefly, if someone feels that he or she has not been treated properly, if someone says, I don't, you know, I don't know, I mean, my child is wearing, my child for - I just - run in from (unintelligible) here. I got to the polls seconds before it closed and now there's - I'm not going to leave my four-year-old outside and I should be allowed to vote. What do you say? How do you address that if there' a challenge, what is the process by which people can challenge this question even if it's not resolved that day, what do you do?

Ms. HILLMAN: Right, well there is every voter during a Federal election has an administrative complaint procedure that they can take advantage of, and that is filing a formal complaint with the election official and there's a process that they are entitled to.

MARTIN: All right, Gracia Hillman is a commissioner with the U.S Election Assistance Commission. Doug Chapin is an election expert of the Pew Center on the state they are both kind enough to join us here in our studios in Washington. I thank you both so much for clearing this up.

Ms. HILLMAN: Well, thank you so much for the opportunity.

Mr. CHAPIN: Thank you.

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