September 29, 2008

PITTSBURGH - Seeking to stop an effort that would impose a dress code for voters in the November election, the American Civil Liberties Union of Pennsylvania (ACLU-PA) filed a petition late Friday to intervene in a lawsuit that seeks to force all Pennsylvania County Boards of Election to prohibit anyone wearing a T-shirt or button supporting a candidate into the polling place from voting. The ACLU-PA argues that regulating what voters wear when they vote would not only violate their free-speech rights, but would unnecessarily burden the right to vote and create confusion at the polls.

"A dress code would mean that people have to give up their right to free speech in order to exercise their right to vote, and there's no reason they can't have both," said Witold Walczak, ACLU-PA Legal Director. "The argument by the other side that people will be confused or intimidated because of what other voters are wearing is absurd and unsupported by any evidence."

Last week, two Allegheny County elections officials sued the Pennsylvania election officials claiming that an advisory to County Boards of Election issued in early September was "illegal." The September 4 memorandum from Chet Harhut, Pennsylvania Commissioner of the Bureau of Commissions, Elections and Legislation, clarified that state law does not prohibit voters from wearing partisan buttons or T-shirts when they go to the polls to cast their votes, although election poll workers can and should be prohibited from wearing clothing or buttons expressing views on the candidates or the parties. The lawsuit, however, claims that allowing partisan messages on voters' clothing would "affect the health and safety of voters."

The ACLU-PA and the League of Women Voters of Pennsylvania in August sent a letter to the Pennsylvania Secretary of State asking the state for guidance about how to interpret the state election code's ban on "electioneering" in the polling place. The letter cited complaints received from voters who had been refused access to the polls because they wore a message supporting a candidate. The groups urged the Secretary to adopt a position that respected voters' free-speech rights by allowing political messages on clothing. The Harhut memorandum followed.

On Thursday, attorneys for the Secretary of State's office filed papers opposing the lawsuit. The ACLU-PA seeks to join the commonwealth in challenging any effort to enforce a state-wide dress code for voters.

"Many Pennsylvania counties, including Philadelphia and Allegheny, have long allowed voters to vote wearing clothing, stickers, and buttons endorsing candidates and there have been no disruptions or significant problems. This proves that there is no need for a voter dress code or fashion police at the polling place," said Steve Harvey, a lawyer with the law firm Pepper Hamilton, which is helping to represent the ACLU-PA, said,

The case is Kraft v. Harhut, Docket No. 451 M.D. 2008, and is pending in the Commonwealth Court of Pennsylvania. Attorneys for ACLU-PA, in addition to Harvey, are Seth Oltman and William Taylor from Pepper Hamilton, and ACLU-PA Legal Director Walczak and ACLU-PA staff attorney Sara Rose. Documents in the case, including the ACLU-PA's and League of Women Voters' letter, the memorandum, the lawsuit, the Commonwealth's response and the ACLU-PA's legal papers can be found here.