PRESS RELEASE from the American Civil Liberties Union of Virginia

December 10, 2008
Free Speech Groups Challenge Ban on Political Attire at Polls

Richmond, VA- Three Virginia-based free speech organizations today filed suit in federal court in Richmond against the Virginia State Board of Elections and the general registrars of Richmond and Fairfax County, challenging the controversial new State Board of Elections policy prohibiting the wearing of buttons, t-shirts and other apparel with political messages in polling places.

The Thomas Jefferson Center for the Protection of Free Expression, The Rutherford Institute and the ACLU of Virginia argue that the policy violates the First Amendment rights of voters and is inconsistent with Virginia’s electioneering statute. They are asking a federal court to strike down the policy as unconstitutional before the next state and local elections in 2009.

The organizations represent Jill Borak, of Fairfax County, and Charles Epes, of Richmond. Both plaintiffs wore a campaign button or sticker to the polls on Election Day and were told to remove them or cover them up.

Adopted by the State Board of Elections (SBE) on October 14, the policy interprets an existing state law against “exhibit[ing]… campaign materials to another person” near or in a polling place as a ban on voters’ attire that expresses a view on particular candidates or political parties. (Click Here for SBE Policy 2008-007.)

Guidelines issued by the SBE on October 23 created confusion for election officials and voters alike. According to the guidelines, the new policy “is not intended to keep a qualified voter from voting.” Yet election officials were instructed to ask voters to remove or cover political statements that are worn as part of their attire. Voters who refused were to be allowed to vote, but in such instances the registrar was expected to file an incident report with the local Commonwealth’s Attorney, presumably for purposes of proceeding with a criminal prosecution. Violations of the law are a class 1 misdemeanor. (Click Here for SBE Guidelines.)

Telephone calls to the ACLU of Virginia and The Rutherford Institute on Election Day indicated that the SBE policy was enforced inconsistently by jurisdictions across the state, with election officials having widely varying interpretations of what the policy required.

“Election Day should be a time for celebrating the personal freedoms guaranteed by our Constitution,” said Robert M. O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression. “On that of all days, government should not be telling citizens how to express themselves.”

“Thomas Jefferson understood that the first duty of government is to protect the freedom of expression,” said John W. Whitehead, president of The Rutherford Institute. “Regrettably, the State Board of Elections shirked this important civic duty when it adopted what essentially amounts to a dress code policy.”

“The State Board of Elections has not only misinterpreted the state law,” said ACLU of Virginia Executive Director Kent Willis, “but in the process it has unnecessarily and unconstitutionally banned passive personal expression that has no history whatsoever of disrupting the voting process.”

A copy of the complaint can be found at


Kent Willis
Executive Director
ACLU of Virginia
530 E. Main St., Ste 310
Richmond, VA 23219

John W. Whitehead
The Rutherford Institute
1440 Sachem Place
Charlottesville, VA 22901

Thomas Jefferson Center for the Protection of Free Expression
Josh Wheeler
Associate Director
400 Worrell Drive
Charlottesville, VA 22911

SBE POLICY referred to above

State Board of Elections Policy 2008-007
A meeting of the Virginia State Board of Elections was held on October 14, 2008 whereby a policy was proposed and approved by the Board:

Definition of “exhibit other campaign material”

WHEREAS, the Code of Virginia, § 24.2-604 states, in part:
During the times the polls are open and ballots are being counted, it shall be unlawful for any person (i) to loiter or congregate within 40 feet of any entrance of any polling place; (ii) within such distance to give, tender, or exhibit any ballot, ticket, or other campaign material to any person or to solicit or in any manner attempt to influence any person in casting his vote… (Emphasis added.)

WHEREAS, the Code of Virginia does not define “exhibit;” and

WHEREAS, “In the absence of a statutory definition, the plain and ordinary meaning of the term is controlling.” See Sansom v. Bd. of Supvrs., 257 Va. 589, (1999);
Commonwealth v. Orange-Madison Coop., 220 Va. 655, 658 (1980); 1999 Op. Va. Att’y Gen. 10, 11; and

WHEREAS, Merriam-Webster dictionary defines “exhibit” as: “a: to present to view: as a: to show or display outwardly especially by visible signs or actions; b: to have as a readily discernible quality or feature; c: to show publicly especially for purposes of competition or demonstration;” and

WHEREAS, the Code of Virginia does not define “other campaign material;” and

WHEREAS, Merriam-Webster dictionary defines “material” as: “the elements, constituents, or substances of which something is composed or can be made;” and

WHEREAS, campaign materials are materials distributed by or for campaigns and the Code of Virginia, § 24.2-945.1, was amended in 2007 to adopt the express advocacy standard for campaign contributions and advertisements; and

WHEREAS, courts applying the express advocacy standard have held subject to regulation communications that cannot reasonably be interpreted other than as expressly advocating the election or defeat of clearly identified candidate. See F.E.C. v. Wis. Right to Life, Inc., 127 S.Ct. 2652 (2007); Real Truth About Obama, Inc v. FEC, 2008 U.S. Dist. LEXIS 73551 (E.D. Va. Sept. 24, 2008);

WHEREAS, the Code of Virginia recognizes sample ballots may be a form of prohibited campaign material if exhibited within the prohibited area; § 24.2-622 states, in part:
Voters may take sample ballots into the voting booth or enclosure, but shall not give, tender or exhibit such ballot to any person, other than an assistant designated under § 24.2-629, while inside the polling place or within the prohibited areas designated by § 24.2-604.

Now therefore be it

RESOLVED, by the State Board of Elections under its authority to issue rules and regulations to promote the proper administration of election laws and obtain uniformity in the administration of elections pursuant to § 24.2-103, that

The phrase, “it shall be unlawful for any person… to…exhibit… other campaign material” within the Code of Virginia, § 24.2-604 shall be interpreted as:

No person shall show, display, or exhibit any material, object, item, advertisement, or piece of apparel, which has the purpose of expressly advocating the election or defeat of a clearly identified candidate or issue.

Any person who does so shall be asked by the officers to cease from showing, displaying or exhibiting the material, object, item, advertisement, or piece of apparel, or to remove or cover it until they leave the prohibited area and polling place.

Nothing in this policy shall prohibit any person from bringing but not exhibiting any campaign material within 40 feet of any entrance of any polling place.


200 N. 9th Street, Suite 101, Richmond, Virginia 23219-3497
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