JudicialLocal NewsSections of Texas Election Law Infringe Free Speech Rights, Federal Judge Declares

A judge declared two entire sections of state election code unconstitutional infringements of First Amendment rights, but left a statute prohibiting some forms of electioneering intact.
October 6, 2021
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In a mixed ruling that may prompt more questions than answers, a federal judge has struck down two sections of Texas election code that ban political clothing in polling locations yet left intact some restrictions on electioneering.

The lawsuit, Ostrewich v Hudspeth, stems from a 2018 incident in which election workers told Jillian Ostrewich she could not enter a Houston polling site wearing a bright yellow T-shirt reading “Houston Firefighters,” since the ballot included a proposed firefighter pay parity measure commonly known as “Prop B.” 

Prior to the election, the local AFL-CIO union had provided Houston firefighters and their supporters with the shirts to help promote the initiative that would force the city to pay firefighters wages comparable to those of the police force. The shirts did not overtly express a political message but featured both the firefighters’ and union’s emblems.

Assisted by the Pacific Legal Foundation (PLF), Ostrewich filed suit in federal court arguing that Texas’ laws against electioneering violated her First Amendment rights to free speech.

Last month U.S. Magistrate Judge Andrew M. Edison agreed, at least in part.

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In his 37-page memorandum and recommendation, which was approved last week by U.S. District Judge George C. Hanks, Edison wrote that two sections of state election code do not give voters notice of what is expected of them in the polling place, and do not provide election judges with “objective, workable standards.” Therefore, he concluded that the entirety of those two sections of law were unconstitutional.

Under the current statute, Edison concluded that an election worker could ban Ostrewich’s firefighter t-shirt, or she could even “be criminally investigated and charged during a future election even if no firefighter measure is on the ballot.”

“This is an important win for Texans’ free speech rights,” said PLF attorney Wen Fa. “The First Amendment protects an individual’s right to express beliefs, regardless of whether others agree with those beliefs. An individual’s right to self-expression does not end at the polling place.”

“I’m pleased with the Court’s opinion, which strengthens the free speech rights of voters in Texas,” said Ostrewich in a press release. “It is just a T-shirt. The government should have no business dictating what I wear when I go to vote.”

However, the federal court upheld another section prohibiting the wearing of clothing or badges “related to a candidate, measure or political party appearing on the ballot” within 100 feet of or inside the polling place.

Therefore, although he agreed that parts of Texas law were unconstitutional, Edison upheld the right of the election judge to prohibit Ostrewich’s t-shirt, and he subsequently denied her request for nominal damages of $1,000.

Plaintiff’s attorneys pointed to a Supreme Court ruling striking down a Minnesota law banning the wearing of political insignia inside a polling site. In that case, voters had been prohibited from wearing “Tea Party” t-shirts that included the Gadsden Flag motto “Don’t Tread On Me” and “Please I.D. Me” buttons, but the court ruled the Minnesota statute would require “an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot.”

In a motion opposing Edison’s proposed ruling, however, Texas Attorney General Ken Paxton’s office argued that Minnesota’s law prohibited any material promoting a group with “recognizable political views” while Texas statute specifically prohibits materials “for or against any candidate, measure, or political party.”

Paxton also urged the federal court to address the specifics of Ostrewich’s case without resorting to the “extraordinary action” of invalidating Texas law, but both the magistrate and district judge ignored the attorney general’s concerns and issued the decision declaring portions of the law unconstitutional.

How the magistrates’ memorandum could impact Texas elections going forward is unclear. The Texas Secretary of State (SOS) last April issued an advisory to elections officials regarding electioneering prohibitions that cites both sections of code declared unconstitutional by the federal court. 

PLF attorney Debbie La Fetra told The Texan that the full implication of the ruling if left unchallenged has yet to be determined and could cause confusion in the coming elections.

“Ostrewich’s union shirt didn’t say anything about anything on the ballot,” said La Fetra.

Referring to President Trump’s popular campaign slogan, La Fetra postulated, “Can someone wear their MAGA hat? I have no idea. Donald Trump is not on the ballot, so you might say go ahead, but we know from the discovery in this case that some election judges think that MAGA not only relates to Trump but to the Republican Party.”

“The public right now has no way of knowing how these laws are going to be enforced,” added La Fetra.

La Fetra said voters will have to wait to see if the SOS or county elections divisions will issue guidance for what can and cannot be worn in a polling place in the coming days.

The SOS did not respond to a request for comment prior to publication.  

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Holly Hansen

Holly Hansen is a freelance writer living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.