27

For context, the region I'm in is Sangamon County, Illinois.

I ordered an ACLU pin from their shop. I expect it to arrive before November 3rd and I am excited to wear it at the polling place. I am, however, not certain if this is permitted under the law. I checked on the Electoral Judge's manual for clarification and I found this:

Electioneering is defined as working for, against, or in the interest of a candidate, party, or proposition. Electioneering is not allowed in the polling place or within the campaign free zone (a distance of within 100 horizontal feet of the room). No one is permitted to wear a campaign button, display political literature, or engage in any political discussion within the restricted area.

So I interpret this as putting me in the clear. The pin is unrelated to a candidate, party, or any proposition on my region's ballots. I wanted a concrete illustration of the law so I did a search and found within the Illinois Compiled Statutes: 10 ILCS 5/7-41 (c)

No person shall do any electioneering or soliciting of votes on primary day within any polling place or within one hundred feet of any polling place, or, at the option of a church or private school, on any of the property of that church or private school that is a polling place. Election officers shall place 2 or more cones, small United States national flags, or some other marker a distance of 100 horizontal feet from each entrance to the room used by voters to engage in voting, which shall be known as the polling room. […]

[…] This subsection shall be construed liberally in favor of persons engaging in electioneering on all polling place property beyond the campaign free zone for the time that the polls are open on an election day.

It's striking that electioneering isn't defined within the section, so I reviewed 10 ILCS 5/0.01 et seq. and found section 5/7-4. Definitions does not provide clarification about electioneering. Okay, maybe it’s a common sense term. I checked Black’s Law Dictionary 5th ed. and also found no definition of electioneering.

Well maybe there's relevant case law? I reviewed West's Smith-Hurd ILCS Annotated and found there were no reported cases related to 10 ILCS 5/0.01 et seq.

Last I checked West's IL Digest and found no relevant case law. There were surprisingly only 5 cases related to elections, none of which had anything to do with electioneering.

So I imagine if a judge were to make a determination about whether displaying this pin within a polling place is electioneering, they would have to refer to a dictionary definition. From Webster's:

electioneer verb
elec·​tion·​eer | \ i-ˌlek-shə-ˈnir \
electioneered; electioneering; electioneers

Definition of electioneer
intransitive verb
: to take an active part in an election
specifically : to work for the election of a candidate or party

Well this is incredibly unhelpful! While this pin is not working for the election of a candidate or party, my very presence in the polling place is taking an active part in an election.

So in summary, would displaying this pin in a polling place be considered unlawful electioneering?

0
14

Illinois law has a bit more to say about "electioneering" in 10 ILCS 5/9-1.14. The core is

any broadcast, cable, or satellite communication, including radio, television, or Internet communication

which is really about "communication", and certain other factors which are about "electioneering". Such buttons clearly are not "communication": the question is whether the court would apply a whole-act or whole-code canon to supply a definition when one is statutorily missing. The part that identifies "electioneering" is:

(1) refers to (i) a clearly identified candidate or candidates who will appear on the ballot for nomination for election, election, or retention, (ii) a clearly identified political party, or (iii) a clearly identified question of public policy that will appear on the ballot

...

(3) is targeted to the relevant electorate, and (4) is susceptible to no reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate for nomination for election, election, or retention, a political party, or a question of public policy.

The button fails to constitute electioneering in that sense, because any association between the slogan and a particular candidate is unclear. On a balance of probabilities, it most likely refers (negatively) to particular candidates, but the law is framed in terms of clear statements, and not vague implications.

The law states a prohibition, but does not clearly say what the consequences of a violation are. Presumably, polling officials will tell an offender to remove the button. Under 10 ILCS 5/29-11,

Failure to comply with order of election authority. Any person who knowingly fails or refuses to comply with any lawful order of an election authority issued by the election authority in the performance of the duties of the election authority, shall be guilty of a Class A misdemeanor.

Then the prosecution would have to prove that the order was lawful. A judge is highly unlikely to read just the part of the definition that says "to take an active part in an election" (because then "I voted" stickers would be illegal). The whole definition specifically limits this to candidates and parties (which omits ballot propositions: that definition is defective).

2
  • Oh wow, it’s very frustrating that wasn’t so clearly illustrated within section 5/7-41 as it seems the legislature had an idea of what they meant by electioneering. Oct 27 '20 at 2:52
  • So it would seem like it would be prohibited, if there were "a clearly identified question of public policy that will appear on the ballot" on the same topic, and particularly if the title of that ballot question used the same words as the button. On any other election, the same button should be fine.
    – Ben Voigt
    Dec 4 '20 at 20:34
36

A poll worker was fired for making people turn a Black Lives Matter T-shirt inside out before voting. Since it does not advocate for a candidate, a political party or something explicitly on the ballot it is not electioneering in Tennessee.

9
  • 13
    Scary that they were fired for what may have been an honest mistake, seems like a manager wants to shift the blame on the front line workers rather than improve training?! (Unless they were told to stop and continued still despite knowing they were wrong; the linked article does not make that clear)
    – gerrit
    Oct 27 '20 at 9:58
  • 40
    @gerrit From the article, the poll worker was given a handout during training that specified that BLM shirts are acceptable. Not sure it can really be considered an honest mistake if the person doesn't read their training material.
    – JS Lavertu
    Oct 27 '20 at 13:27
  • 4
    You might have it backwards - it is not an issue that liberals support BLM, the issue does BLM directly imply a candidate, party or other ballot topic. Oct 27 '20 at 23:36
  • 10
    @JasonGoemaat A slogan used by a candidate's campaign does indeed typically violate the electioneering rules. For example, "Make America Great Again" wouldn't be allowed or "I'm with Her" wouldn't have been allowed in 2016.
    – reirab
    Oct 28 '20 at 0:43
  • 3
    Doesn't this answer beg the question? It demonstrates that there's a dispute as to what is permitted, but it doesn't tell us how the law resolves the dispute.
    – bdb484
    Oct 28 '20 at 2:17
26

You can wear the button.

The regulations have already defined "electioneering," so you really need not go any further. Your button isn't "working for, against, or in the interest of a candidate, party, or proposition," so you're set. Even if you had to resort to dictionary definitions, a court would obviously not accept the first definition as controlling, as it would prohibit anyone from voting in places established for voting, violating the absurdity doctrine.

But even if the law defined "electioneering" more broadly to include your button, that law would be unconstitutional. The U.S. Supreme Court considered a similar case just a few years ago. In Minnesota Voters Alliance v. Mansky, 849 F. 3d 749 (2018), Minnesota prohibited voters with "Please I.D. Me" buttons from entering a polling place, citing Minn. Stat. §211B.11(1), which prohibits wearing anything with a “political badge, political button, or other political insignia” into a polling place. The court struck down the law for violating the First Amendment, saying that even if it was intended to prevent voter intimidation, fraud, or the like, a law limiting speech in the polling place must have clear boundaries:

We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it.

The court tacitly endorsed restrictions on materials promoting individual candidates, political parties, or ballot issues, but it rejected restrictions that broadly prohibit "political" material and leave it to the elections officials to decide what does and doesn't meet that definition. Your button is a pretty close analogue to the "Please ID Me" buttons at issue in this case, so I think an election official would have to be ignorant or malicious to try to stop you.

4
  • 2
    Very interesting! “ the State must draw a reasonable line” so with that relatively recent case law, an electoral judge is not to discern what is “political.” I suppose all the county manuals across the nation need updating as they all have a similarly vague prohibition on “political” attire. Oct 27 '20 at 2:45
  • @ParkerGibson I imagine quite a lot do, but probably not all. SCOTUS seemed to endorse the language used in Texas and California. But yes, I suspect they're outliers.
    – bdb484
    Oct 27 '20 at 3:53
  • 8
    I work at an elections office currently, and many of the staff wear badges, pins, and masks with "Vote" on them. Discussion, however, of partisan politics, is not permitted.
    – Davidw
    Oct 27 '20 at 3:55
  • That sounds about right.
    – bdb484
    Oct 27 '20 at 5:23
0

Just for comparison, in Maryland:

Electioneering is campaigning for or against a candidate or ballot issue. It includes handing out fliers, holding signs, and encouraging voters to support or oppose a candidate or ballot question. It is not electioneering if a voter wears campaign buttons, t-shirts, or stickers when voting. After voting, however, the voter must immediately leave the early voting center or election day voting center.

Not the answer you're looking for? Browse other questions tagged or ask your own question.