Tea Party T-shirt cover-up at polling place sparks lawsuit - East Valley Tribune: Politics

Tea Party T-shirt cover-up at polling place sparks lawsuit

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Posted: Monday, September 20, 2010 10:05 pm | Updated: 8:21 pm, Mon Mar 14, 2011.

A federal judge will decide whether Tea Party members who wear their hearts on their sleeves can wear their politics on their shirts at polling places.

A lawsuit filed Monday in U.S. District Court in Phoenix claims Coconino County election officials violated the rights of Diane Wickberg when they forced her to cover up her shirt proclaiming, "Flagstaff Tea Party -- Reclaiming Our Constitution Now'' before being allowed to cast a ballot at last month's primary. Attorney Clint Bolick of the Goldwater Institute, which filed the lawsuit on Wickberg's behalf, said that violates her First Amendment rights.

But Coconino County Recorder Candace Owens said the T-shirt ran afoul of state laws which prohibit "electioneering'' in polling places.

Owens told Capitol Media Services she cannot spell out at exactly what point the language on someone's T-shirt -- or any other clothing button or sign -- becomes forbidden.

"It's a fine line,'' Owens said.

She said her election officials deal with situations on a "case-by-case basis.'' But Owens said that, in this case, her poll workers decided properly.

Bolick, however, said that "case-by-case'' arrangement is not acceptable. He said she should have developed "objective standards'' to ensure that would-be voters are not harassed or disenfranchised.

The outcome of the lawsuit will determine more than what sayings on clothes are permissible. It is designed to fire a warning shot of sorts at election officials throughout the state.

Bolick wants Judge James Teilborg to impose punitive damages against Owens. He wants punitive damages assessed against her, saying she acted with "evil motive or intent'' and that her conduct was "malicious, oppressive and in reckless disregard'' on Wickberg's rights.

"We think what Candace Owens has done here is really to become a renegade public official,'' Bolick said.

"We certainly expect to seek modest damages,'' he continued. "But we want to send a message to elected officials they cannot deprive people of their rights because they are personally offended by their political beliefs.''

Owens said, though, that what Wickberg was doing clearly went over the line which bars electioneering within 75 feet of the polls.

She is not alone in her belief that some case-by-case analysis is necessary to determine when someone's clothing crosses the line into electioneering.

That's also the assessment of Amy Bjelland, the state elections director. She signed a joint letter with Owens to the Goldwater Institute saying "every evaluation of a claim of electioneering must be fairly analyzed in the context of each election.''

Bolick said he has nothing wrong with that -- up to a point. What's missing, he said, are the factors to be used in that analysis.

He said that the specific Tea Party group to which Wickberg belongs is neither a recognized political party nor did it endorse any candidates.

In fact, Bolick said it would be irrelevant even if the Tea Party had endorsed someone, even if a candidate campaigned on that endorsement. He pointed out that candidates put notices on their signs of significant endorsements, ranging from newspaper editorials and environmental groups to fire fighter and police unions.

"Does that mean a police officer has to cover up his uniform?'' he asked. Bolick said there is no substantive difference between that uniform and Wickberg's T-shirt.

"That's an extreme point of view,'' Owens said.

She said, though, there are other circumstances where a T-shirt might matter. For example, Owens said, she would advise election workers to require someone wearing a Sierra Club logo to cover up if that organization were actively supporting a ballot measure.

Owens also rejected Bolick's contention that the lack of formal recognition of the Tea Party makes Wickberg's wear at a polling place acceptable within the law.

"It doesn't say 'party,' it says 'electioneering,' she said.

"People have run (saying) they're affiliated with that philosophy,'' Owens said. "It's political in nature.''

And that, she said, makes wearing that attire forbidden by election laws.

Bolick said he intends to ask Teilborg for an injunction before the Nov. 2 general election.

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