Your Shirt or Your Vote: Why Texas’s Electioneering Law Unconstitutionally Infringes on Voters’ Freedom of Speech

Abstract

The Free Speech Clause of the First Amendment grants citizens the right to speak their mind and to stand up for what they believe in. Because this right does not cease at written or spoken word, the Supreme Court has interpreted the First Amendment expansively to protect an individual’s right to engage in expressive conduct and expressive association. This includes the right to express opinions and associate with groups and organizations, like Black Lives Matter, whose views may be controversial. Like other constitutional rights, this right is not absolute; states are allowed to impose some regulations on speech. However, Supreme Court precedent emphasizes the precept that states may not interfere with one’s right to engage in expressive conduct and expressive association when it does not invade the rights of others and is unaccompanied by disturbance and disorder. When it comes to Election Day, it is undeniable that states have a legitimate interest in regulating and preserving the election process—to prevent voter fraud and intimidation. This usually includes regulating what voters can and cannot wear inside polling places, so that voters may focus on the important decisions on the ballot. However, as this Article will discuss, even in recognizing the special purpose of the polling place, the Supreme Court did not intend for freedom of speech protection to completely stop at the polls. Voters should not have to decide: Your shirt or your vote! This Article will analyze the constitutionality of Texas’s electioneering statute. In predicting that the Supreme Court would likely invalidate this statute on its face and as-applied, this Article encourages the Texas legislature to rewrite its electioneering statute. To achieve this goal, this Article will propose new statutory language that would render Texas’s political apparel ban constitutional, by providing an objective, workable standard of what apparel must stay out from what apparel can come in.