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 http://www.acluva.org/docket/pleadings/borak_complaint.pdf