The following is the text of the letter Arthur B. Spitzer, Senior Counsel of the ACLU of the District of Columbia, sent to Alice P. Miller, Executive Director of the District of Columbia Board of Elections, via email on Wednesday, September 9, 2020, encouraging the Board to clarify rules regarding political attire at polling places. The complete letter can be seen here.
I saw Martin Austermuhle’s clarification, late yesterday afternoon, of his story about people wearing clothing with messages (such as “Black Lives Matter”) at polling places. He reports that you “confirmed that … “[t]he only restriction for voters is a ban on campaign-related clothing or materials.”
I was pleased to read that clarification, and a bit surprised, because 3 DCMR § 707 appears on its face to apply to all persons in a polling place, including voters.
Given that the Board’s current interpretation is at least arguably different from what has been communicated to poll workers in recent trainings, we think it is important for the Board to make its current interpretation clear and official. The Board should release a public statement, and distribute that statement to all precinct captains and poll workers, and post that statement on its website, making clear that voters can wear whatever they choose to the polls, with the exception of “campaign-related clothing or materials.” The statement should also be very explicit about what “campaign-related clothing or materials” means, because there is plenty of room for disagreement about that, and the last thing anyone (including the Board) wants is a dispute at a polling place about what attire a voter must cover or remove.
Presumably a button or T-shirt reading “Trump-Pence” or “Biden-Harris” or “Lazere for Council” is not allowed. But what about a baseball cap reading “Make America Great Again” or just “MAGA”? Or a T-shirt reading “Build Back Better”? What about a baseball cap reading “Make America Sane Again,” or a T-shirt reading “,la” or “Save the Suburbs”?
We suggest that the Board may want to consider adopting a rule along the lines of Maryland’s or Virginia’s, which (according to Martin Austermuhle’s earlier story) allow voters to wear what they want, as long as they don’t engage in electioneering conduct—giving materials to other voters or engaging other voters in conversation about the candidates or ballot measures—and as long as they exit the polling place promptly after voting, as all voters should do anyway. Such a rule would have the great advantages of clarity and avoidance of arguments about whether a given piece of apparel is or is not permitted.
We appreciate your consideration, and the Board’s.
Best regards, and good luck with the upcoming election!
Arthur B. Spitzer"