Wickberg v. Owens

Posted on September 20, 2010 | Type: Case
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On Sept. 20, 2010, the Goldwater Institute filed a federal lawsuit on behalf of Flagstaff resident Diane Wickberg to defend her right to vote at her polling place while wearing a T-shirt for the Flagstaff Tea Party. Poll workers have twice threatened to block Mrs. Wickberg from voting unless she removed or covered her T-shirt. The lawsuit says the actions of Coconino County and County Recorder Candace D. Owens violate Mrs. Wickberg’s constitutional rights and put her at risk of being arrested. A federal judge issued a preliminary injunction to protect Mrs. Wickberg's ability to wear her T-shirt while voting on Nov. 2, 2010. But the lawsuit continues to make sure uniform and objective standards are adopted to enforce Arizona's electioneering laws without violating the constitutional rights of Mrs. Wickberg and other voters in the future. In March 2011, Coconino County decided to settle the case. Specifically, Coconino County’s new rules define electioneering to provide that only conduct that advocates for or against a candidate, a political party, or an issue on the ballot may be banned at the polling site. The County has also agreed to provide additional training to poll workers for objective enforcement of election laws and to protect against discrimination in the polling place.

Why we are suing?

Coconino County has failed to enforce Arizona's ban on electioneering inside polling places in an objective, neutral manner. The Coconino County Recorder's Office instructs poll workers to decide if voters can wear clothing with a specific message on a case-by-case basis. This subjective approach means poll workers have forced Diane Wickberg to hide her T-shirt while voting, even though there's no message on the T-shirt that advocates for or against any candidate or issue on the ballot. Coconino County Recorder Candace Owens has failed in her legal duty to enforce state law appropriately while defending all of Diane Wickberg's constitutional rights. For more about the overall issue of wearing clothing with messages while voting at polling places, click here.

What happened to bring this lawsuit about?

On May 18, 2010, and again on Aug. 24, 2010, Diane Wickberg went to her polling place in Flagstaff to vote in state elections. Each time, she wore her membership T-shirt for the Flagstaff Tea Party. On both occasions, poll workers told Mrs. Wickberg to turn the T-shirt inside out or somehow cover up its logos, which include “We the People” and “Flagstaff Tea Party – Reclaiming our Constitution Now.”

The first time, Mrs. Wickberg was concerned the poll worker might call the police, but she didn’t believe she had done anything wrong. Eventually, Mrs. Wickberg was told she could cast a ballot without hiding the logos because no other voter was present. On the second occasion, Mrs. Wickberg covered up the T-shirt with a sweater.

Mrs. Wickberg realized the poll workers didn’t seem to understand the difference between general speech as shown on her T-shirt and electioneering, which is described by the official Arizona Election Procedures Manual as an “attempt to influence a person’s votes on election day.” Electioneering within 75 feet of a polling place is classified by state law as a misdemeanor crime.

After the first occasion, Mrs. Wickberg contacted Coconino County Recorder Candace D. Owens, who oversees elections in that county and is responsible for the proper training of poll workers. Ms. Owens said the T-shirt served as electioneering because the Flagstaff Tea Party “has an agenda,” even though the group did not advocate for or against any of the candidates or issues on the ballot in the May 18 and Aug. 24 elections.

But Mrs. Wickberg received the opposite response after the first occurrence from Amy Bjelland, director of the Elections Division of the Arizona Secretary of State’s Office, which oversees all public elections in Arizona. In a letter dated, July 1, 2010, Ms. Bjelland wrote “the shirt did not attempt to persuade or influence voters to vote for or against a particular candidate, party or proposition in the election.”

However, the state’s position didn’t convince Ms. Owens to train her poll workers any differently before the Aug. 24 election. Mrs. Wickberg was again told she had to take off her T-shirt or cover its logos. This violated Mrs. Wickberg’s constitutional rights, as she was forced to hide her association with the Flagstaff Tea Party so she could vote without the risk of being accused of the crime of electioneering. 

What does the Goldwater Institute want from this lawsuit?

Diane Wickberg should be allowed to freely wear her T-shirt and not be forced to hide her association with the Flagstaff Tea Party while voting in public elections. State and county election officials should develop objective standards for determining when to censor messages on clothing, instead of relying on informal rulings based on the personal views of poll workers that could vary widely from election to election.

What are the key issues?

• Diane Wickberg has a constitutional right to wear a T-shirt showing her support for the U.S. Constitution and the Flagstaff Tea Party.
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. In this case, Coconino County Recorder Candace Owens must prove that violating Mrs. Wickberg’s constitutional rights was required to protect other voters.

• The alternative of voting by mail doesn’t absolve Coconino County of violating Mrs. Wickberg’s rights. The state gives each voter the free choice of voting by mail or voting in person at a polling place. Compelling Mrs. Wickberg to vote by mail to avoid being accused of a crime still forces her to hide her association with the Flagstaff Tea Party.

• Coconino County poll workers aren’t using objective standards to decide when a logo on someone’s clothing can be considered electioneering.
Mrs. Wickberg’s T-shirt makes no statement or suggestion about how anyone should vote in any election. Yet, the election workers at her polling place, with Mrs. Owens’ support, somehow concluded the words “We the People” and “Flagstaff Tea Party – Reclaiming our Constitution Now” was electioneering. However, the Goldwater Institute has evidence that other members of the Flagstaff Tea Party wearing similar T-shirts were allowed to vote at other polling places in Flagstaff during the Aug. 24 election. This kind of unequal treatment at separate polling locations would not happen if Mrs. Owens had followed her legal duty to provide proper training to poll workers about enforcing the electioneering law using objective standards.

• Not all tea party groups are trying 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 with at least three in Coconino County. Some of those tea party groups have actively supported candidates; others such as the Flagstaff Tea Party have not. Applying the state law against electioneering at Mrs. Wickberg’s polling place ignores the Flagstaff Tea Party’s choice not to advocate for or against anything during the election cycle of 2010. By contrast, some labor unions such as those for firefighters and public-school teachers routinely support candidates or ballot measures in some elections. But Coconino County election officials don’t automatically ban every logo of every labor union at polling places for every election. Mrs. Wickberg has a constitutional right to same treatment.

• This is not a “minor” violation of Diane Wickberg’s constitutional rights.
Mrs. Wickberg has been accused of electioneering at a polling place, which state law classifies as a misdemeanor crime. If Mrs. Wickberg exercises her constitutional right to wear her T-shirt at a future election, she would risk being arrested and a possible jail sentence of up to four months and a fine of up to $750.

Who is the client?

The Goldwater Institute Scharf-Norton Center for Constitutional Litigation represents Diane Wickberg of Flagstaff, a grandmother and a school fundraiser who has lived in Arizona for more than 28 years. She is a member of the Flagstaff Tea Party, a local, nonpartisan, civic organization that does not endorse candidates or ballot measures.

Whom are we suing?

• Candace D. Owens as an individual and in her official capacity as the Coconino 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.
• Coconino 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 has been assigned to the case.

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 Supreme Court ruled Colorado election officials violated the free speech rights of initiative petition groups by enforcing a ban on payments to petition circulators.

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. She 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.

Case Documents

March 15, 2011 Plaintiff's Unopposed Motion to Dismiss

March 14, 2011 Settlement Agreement

October 20, 2010 Order for Preliminary Injunction

October 14, 2010 Defendant's Counter-Claim

October 13, 2010 Motion for Temporary Restraining Order

September 20, 2010 Complaint

Case Timeline

October 21, 2010: Hearing on motion for temporary restraining order cancelled after Judge James Tielborg issues preliminary injunction which Coconino County Recorder agrees not to challenge, allowing Mrs. Wickberg to wear her Tea Party T-shirt to the polls on November 2.

October 13, 2010: Goldwater Institute files Motion for Temporary Restraining Order

September 20, 2010: Goldwater Institute files complaint in U.S. District Court

Press Releases

Coconino County Promises to Protect Voters' Free Speech at Polling Places

Media Coverage

Flagstaff grandmother's 'tea party' shirt spurs lawsuit - Arizona Republic

Fox and Friends - Fox News

Fox and Friends Weekend - Fox News

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