Last week, a voter was delayed at an Anderson County Courthouse Annex polling place because she wore a “Never Socialist” T-shirt. The incident was resolved amicably enough: After talking to a supervisor, Karrie Pearce of Frankston was permitted to vote. Still, the dispute exposed flaws in Texas' vague, overreaching, and likely unconstitutional election code – defects only Texas legislators can fix.
All states restrict signs, posters, passing out campaign literature, and other electioneering within a certain distance from a polling place – usually 50 to 200 feet. That's reasonable. Voters don't want to be harassed as they're entering a polling place.
About a dozen states, however, including Texas, impose additional restrictions on political expression and political attire inside a polling place. That's where states need to tread carefully.
Texas has one of the strictest codes, barring electioneering within 100 feet of the polling place, or in it, including “expressing preference for or against any candidate, measure, or political party.”
What ties or links an expression to a political candidate, measure, or party, however, is not defined. Nor does the code state where election workers should draw the line in construing it. Would a donkey tie clip, for instance, violate the election code? How about a pair of elephant cuff links?
Texas' election code is no clearer than the one Minnesota used before 2018, when U.S. Supreme Court justices declared it unconstitutional. The code prohibited any “political” button or insignia, but didn't define “political.”
Before Texas is forced to defend its election code in federal court, legislators ought to make it more defined and easier to apply. Revisions should eliminate language that causes poll workers to make difficult judgments on what constitutes political expression.
This lack of clarity is what confronted the election clerk in Palestine in deciding whether Pearce's “Never socialist” T-shirt was restricted. City Clerk Teresa Herrera, administrator of local elections, said Pearce should have simply been asked to cover the slogan, but she agreed Texas code restricted the T-shirt, because the slogan “Never Socialist” is associated with President Trump and his political party.
It's true Trump has said several times, including in his State of the Union address, that the United States will never become a socialist country. But many other people also have said that. Moreover, the T-shirt made no reference to Trump or the Republican Party. In fact, Pearce told the Herald-Press her T-shirt did not endorse Trump but simply expressed her feelings on socialism.
This is not to criticize the election clerk or Herrera, who has always enforced the code in a fair and even-handed manner. The point is, the over-broad and vague Texas code leaves too much room for interpretation and disagreement.
Election codes should be as unambiguous and easy to apply as possible, while allowing people to fully exercise their constitutional rights. To meet those standards in Texas, legislators must revise the code.