SYRACUSE, N.Y. (CN) – Wearing political buttons or placards within 100 feet of a polling place should be legal in New York state, a citizen claims in a new lawsuit.
The complaint, filed Aug. 3 in federal court by John DeRosier, wants a judge to strike down New York election laws barring such political accoutrement from polling places as violating the First Amendment, and a court order barring county officials from enforcing the law.
DeRosier, a member of the Independence Party and supporter of President Donald Trump, claims state law does not explicitly bar political buttons or other apparel but that poorly trained election inspectors have misinterpreted the law.
“People shouldn’t have to risk criminal prosecution to wear buttons,” DeRosier’s attorney Jeremy Colby, of Webster Szanyi, said in an interview.
Colby, who is also a town justice in Lancaster, New York, seeking re-election this year, said state law does not clearly define what “political” apparel includes, and that his client could face charges if he wore a “Make America Great Again” hat to the polls.
“People coalesce behind [MAGA] as a symbol of their shared common beliefs … is that a political symbol when Trump is not even a candidate?” Colby asked. “Would it be illegal to wear it one year and legal to wear it another?”
Under state Election Law 17-130, attempts at “electioneering” are punishable as a misdemeanor if they take place within 100 feet of a polling place.
However, the law is “hopelessly ambiguous” when it comes to defining what constitutes “electioneering” and could lead to different application of the law from county to county, the complaint states.
“Presumably, “political” would mean candidates for office or political parties,” the complaint states. “But what about ‘MAGA’ buttons? Or ‘Don’t tread on me’? ‘SCOPE’? ‘NRA’? ‘Black Lives Matter’? ‘Feel the Bern’?”
DeRosier adds that “due to the impending election related deadlines, a preliminary injunction is necessary to avoid violating [DeRosier’s] First Amendment rights in the upcoming election on Nov. 6, 2018.”
He says in the complaint he would have worn a MAGA hat or Trump/Pence button while voting in the 2016 election but for the law.
Among the named defendants are Peter Kosinski and Douglas Kellner, co-chairs of the New York State Board of Elections, as well as two commissioners of the state’s board of elections and two Onondaga County election officials.
John Conklin, a spokesman for the state Board of Elections, declined to comment.
The suit is likely the first of many more to come, after the U.S. Supreme Court earlier this year struck down a similar ban in Minnesota. That law had been used against right-leaning voting rights advocate Andrew Cilek when he wore a “Don’t Tread on Me” T-shirt and a “Please I.D. Me” button to a polling place in 2010.
In its 7-2 ruling, the high court ruled the Minnesota ban on wearing political badges, insignias, or buttons at or near polling places for primary or general elections was unconstitutional.
However, in the majority opinion Chief Justice John Roberts wrote if Minnesota wants to prohibit political apparel “the state must draw a reasonable line” and end the “haphazard interpretations” of the law and vague guidance on how to apply it.
“If a state wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here,” Roberts wrote.
Colby said the Minnesota case helps DeRosier’s, and that he plans to file similar lawsuits in other states.
“We’re going to experiment a little bit,” he said in the interview, noting he plans on filing in both red and blue states with both Democrats and Republicans as plaintiffs.
“This is not a partisan issue.”