Are the limits on “electioneering” constitutional?

A federal court in Texas has declared two sections of the Texas Election Code unconstitutional.  Both sections address “electioneering” during a voting period. Citing a 2018 SCOTUS decision, (Minnesota Voters Alliance v. Mansky) the court held that the Election Code’s prohibition of any “political” signs or apparel was “unmoored from any objective, workable standard that an election judge could use to reasonably apply the statute.” 

The case arose when the wife of a firefighter in Houston was told to turn her t-shirt inside out before voting. The bright yellow t-shirt supported Houston firefighters and had been widely displayed for months as the firefighters sought a referendum to amend the City Charter to require compensation for firefighters equal to the compensation for the police.  The woman complied with the election judge’s order, and after a short delay, was allowed to vote. But she then sued, claiming that the Election Code provisions addressing this issue were unconstitutional.

She lost on one issue and won on the other.  The court held that the election judge had the discretion to order her to turn the t-shirt inside out. That’s because TEC 61.110 bars people from displaying signs that relate to “a candidate, measure, or political party appearing on the ballot.”  (Emphasis added).  In this case the ballot included Proposition B—the one that would raise the pay of the firefighters. Her t-shirt clearly supported the firefighters, and, presumably, Proposition B. The court held that this section of the Code was constitutional and the election judge’s application of it was reasonable.

However, the other provisions in the Election Code prohibit any “political” signs during the entire early voting period, whether such signs address an issue on the ballot or not:

Unlike section 61.010, these provisions are not limited to candidates, measures, or political parties appearing on the ballot.  Moreover, sections 61.003(b)(2), and 85.036(f)(2) provide that electioneering includes political signs and literature, which suggests that these statutes allow election judges to ban voters from wearing ‘political’ apparel.  This is problematic.

Election officials will need to study this case carefully and adjust the training of election officials accordingly. It’s Ostrewich v. Hudspeth, decided by the federal court for the Southern District of Texas on September 30, 2021.  The judge’s decision is very short, simply approving and adopting the recommendation of the magistrate. The magistrate’s more thorough decision was issued on September 14, 2021 and can be found at 2021 WL 4170135.


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Tomorrow: was it free speech?