On Oct. 28, 2010, the Goldwater Institute filed a federal lawsuit on behalf of Scottsdale resident Mark Reed, who wants to vote at his polling place while wearing a T-shirt that refers in a general manner to the phrase “tea party.” Maricopa County election officials have said their policy is to ban all clothing with any political messages at polling places on Election Day, not just clothing with messages that attempt to influence other voters. The lawsuit says Maricopa County Recorder Helen Purcell and county Elections Director Karen Osborne are violating the federal civil rights of voters who want to wear clothing with logos or messages that are not electioneering. A federal judge granted Goldwater Institute’s motion for a preliminary injunction against Maricopa County to protect voters’ rights during the election on Nov. 2, 2010, and voters were allowed to wear Tea Party T-shirts that didn't endorse candidates or issues to the polls. The preliminary injunction expired after the polls closed on November 2, and the fight continues.
Why are we suing?
The policy of the Maricopa County Recorder’s Office to ban all political messages on clothing at polling places exceeds its authority to protect the right of vote freely, and denies other fundamental freedoms to voters such as the rights to free speech and to association. For more information, click here.
What happened to bring this lawsuit about?
On Oct. 20, 2010, U.S. District Judge James A. Teilborg issued a preliminary injunction that said members of the Flagstaff Tea Party could wear their T-shirts while voting at polling places in Coconino County on Nov. 2, 2010 (read more here). During media interviews about that injunction, Maricopa County Recorder Helen Purcell and her elections director, Karen Osborne, said the judge’s order didn’t apply to Maricopa County and their policy would continue to ban all political messages on clothing worn to polling places. Ms. Purcell and Ms. Osborne said all references to “tea party” groups would fall within this ban. The Goldwater Institute also has an affidavit from a poll worker that says her training included instructions that clothing mentioning “tea party” or the “Don’t Tread On Me” logo should not be allowed.
In later media reports, Ms. Purcell and Ms. Osborne said voters wearing such clothing would be asked by poll workers to hide the political message. Voters who refused to do so would be allowed to vote, Ms. Purcell and Ms. Osborne said, but poll workers would fill out an “incident report” for later investigation. Arizona law classifies electioneering at polling places as a misdemeanor crime. So voters who wear clothing that mention “tea party” are at risk of a criminal investigation.
What does Goldwater Institute want from this lawsuit?
Maricopa County should adopt standards for enforcing Arizona’s ban on electioneering at polling places that focus solely on speech that expressly advocates for or against candidates or measures on the ballot. Voters who wear clothing that features other forms of speech should be allowed to enter their polling place, vote and leave without being delayed by poll workers or being at risk of any criminal investigation or charges.
Who is the client?
The Goldwater Institute Scharf-Norton Center for Constitutional Litigation represents Mark Reed of Scottsdale. Mr. Reed has no formal connection to a tea party group. But he plans to wear a T-shirt when he votes Nov. 2, 2010, in support of the movement that says “Tea Party: Principles Not Politicians” and also includes the “Do Not Tread On Me” logo.
What are the key issues?
• When casting a ballot, Mark Reed has a constitutional right to wear a T-shirt with a political message that doesn’t attempt to influence any other voters. Just like talking, printed words on T-shirts expressing opinions are protected by the First Amendment. Government officials can take away that right, such as forcing a person to cover up the T-shirt, only when they can prove they are protecting someone else’s rights. The words “Tea Party: Principles Not Politicians” and the “Do Not Tread On Me” logo do not advocate for or against any candidate or issue on the Nov. 2 ballot, and so they do not attempt to influence or coerce other voters.
• The alternative of voting by mail doesn’t absolve Maricopa County of violating Mark Reed’s rights.
The state gives each voter the free choice of voting by mail or voting in person at a polling place. Compelling Mr. Reed to vote by mail to avoid being accused of a crime still censors his speech unconstitutionally.
• Making a general reference to "tea party" is not an attempt to directly influence voters.
As National Journal Magazine and the New York Times reported recently, what’s often referred to as the “tea party movement” is actually a collection of distinctly independent groups of different sizes and levels of organization that share some common, long-range goals. The Washington Post reported that most local tea parties have not been involved in political campaigns and have not endorsed any candidates for office. Arizona has at least 65 different tea party groups. Some of those tea party groups have actively supported candidates; others have not. Mr. Reed's T-shirt doesn't refer to any specific tea party group or election issue but represents a general political statement. By contrast, some labor unions such as those for firefighters and public-school teachers routinely support candidates or ballot measures in some elections. But Maricopa County election officials don’t automatically ban every logo of every labor union at polling places for every election. Mr. Reed has a constitutional right to same treatment.
• This is not a “minor” violation of Mark Reed’s constitutional rights.
Mr. Reed could be accused of electioneering at a polling place, which state law classifies as a misdemeanor crime. If Mr. Reed exercises his constitutional right to wear his T-shirt on Nov. 2, 2010, he would risk being charged and a possible jail sentence of up to four months and a fine of up to $750.
Whom are we suing?
• Helen Purcell as an individual and in her official capacity as the Maricopa County Recorder, as she has the legal duty to oversee all state elections held within that county. Her responsibilities include the proper training of poll workers to respect the constitutional rights of all voters.
• Karen Osborne as an individual and in her official capacity as Director of Elections for Maricopa County.
• Maricopa County, which has the ultimate responsibility of protecting federal civil rights of all voters at every election managed by the county.
Who is the judge?
• U.S. District Judge James A. Teilborg
Can we win?
The Civil Rights Act of 1871 as covered in 42 U.S.C. 1983 allows any individual to sue a government official who, acting under the authority of state law, deliberately interferes with that person’s constitutional rights. The U.S. Supreme Court has held this right to sue includes enforcement of election laws in a manner that violates the First Amendment. For example, in the 1988 case of Meyer v. Grant, the U.S. Supreme Court ruled Colorado election officials violated the free speech rights of initiative petition groups by enforcing a ban on payments to petition circulators.
U.S. District Judge James A. Teilborg issued a preliminary injunction in another lawsuit from the Goldwater Institute that allows members of the Flagstaff Tea Party to wear their T-shirts while voting at polling places on Nov. 2, 2010.
The Legal Team
• Clint Bolick is the Goldwater Institute’s litigation director. He has extensive success before trial judges and appellate courts. He has won two cases before the U.S. Supreme Court. He was named as a Lawyer of the Year in 2003 by American Lawyer magazine.
• Christina Sandefur worked to advance liberty as a law clerk at the Pacific Legal Foundation in California and a research intern at the Michigan-based Mackinac Center for Public Policy. Christina earned her law degree from Michigan State University College of Law, where she served as notes editor of the law review and president of the campus Federalist Society.
November 1, 2010: Judge Teilborg grants the Goldwater Institute's request for a preliminary injunction and voters are allowed to wear Tea Party T-shirts that don't endorse candidates or issues, to the polls on November 2.
November 1, 2010: Hearing on Motion for Preliminary Injunction. 11:30 a.m. U.S. District Court of Arizona, 401 W. Washington Street, Suite 130, SPC 1, Phoenix, Judge James A. Teilborg's Courtroom #523.