Federal judge strikes Texas laws that prohibited political attire at polls for violating First Amendment

HOUSTON (CN) — A federal court in Houston struck down two state laws prohibiting people from wearing clothing with political messages on them in or near polling locations. The statutes violate voters’ First Amendment right to free speech, the judge found, and fail to set an objective standard for the laws’ enforcement.

Two Texas residents filed suit in the Southern District of Texas in February 2019 accusing election officials of limiting their right to wear political clothing at voting locations after they were told to change their clothes before they could vote. 

In 2018, Jillian Ostrewich of Houston went to vote in a city-wide election over whether to raise the compensation of the city’s firefighters. She says that, upon arriving with her Houston firefighter husband, Ostrewich was told by a poll worker that she would be unable to enter the polling location unless she turn her T-shirt, which prominently displayed the logo of the Houston firefighters’ union, inside out.

Similarly, Anthony Ortiz of Carrollton said he was prevented from entering a polling location for wearing a “Make America Great Again” hat. Ortiz was told by election workers that the hat ran afoul of the state’s anti-electioneering law and that he would only be allowed to vote if he removed the hat.

Under the challenged portions of Texas election law, nobody is allowed to “electioneer” within 100 feet of the entrance to a polling location. Under the state statute, electioneering includes “the posting, use, or distribution of political signs or literature.”

The plaintiffs filed sued election officials in Harris County, home to Houston, the Texas secretary of state and Texas Attorney General Ken Paxton. Aside from alleging First Amendment violations, the pair accused the laws of violating the Fourteenth Amendment’s due process clause for being vague.

Arguing against the Texas laws, the plaintiffs referenced Minnesota Voters Alliance v. Mansky, a 2018 Supreme Court case that set the precedent for the constitutionality of such laws. In that case, a Minnesota law prohibiting people from wearing political buttons or insignias at polling locations was under fire from voters who were turned away at the polls. The high court struck down the law for failing to have an “objective, workable standard” of what items were considered political and should be banned.

Reviewing the case and the Texas statutes in question, United States Magistrate Judge Andrew Edison recommended that they be struck down as unconstitutional for similar reasons as those outlined by the nation’s high court in Minnesota Voters Alliance v. Mansky.

“Like the Minnesota statute at issue in Mansky, sections 61.003 and 85.036’s use of the term ‘political’ is unmoored from any objective, workable standard that an election judge could use to reasonably apply the statute,” wrote Edison in his recommendation.

Edison went on to offer a hypothetical situation in which Ostrewich could be legally barred from entering a polling location for wearing the same shirt she wore in 2018.

“Ostrewich has no way of knowing whether the election judge at her polling place would consider the shirt to be political,” Edison wrote. He added that the statutes do not set guidelines for voters concerning what is and is not allowed to be worn within polling locations. Much like the case in Minnesota, Edison wrote, election officials are not provided with “objective workable standards to reign in their discretion.”

On Thursday, U.S. District Judge George Hanks rendered the court’s final judgment, issuing a two-page order adopting Edison’s recommendations and rendering the statutes unconstitutional for violating the First Amendment.

Ostrewich said in a statement that she was pleased with the court’s decision and believes the ruling will “strengthen the free speech rights of voters in Texas.”

“It is just a T-shirt. The government should have no business dictating what I wear when I go to vote,” Ostrewich said.

Follow Kirk McDaniel on Twitter.

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