Judge rules tea party shirts OK at polling places

PHOENIX — A federal judge has ordered that Coconino County reisdents be allowed to wear tea party T-shirts when they vote next month.

But what happens elsewhere at polling places in Arizona remains in legal limbo. And it still leaves in question whether such attire is proper.

The order by U.S. District Court Judge James Teilborg specifically bars Coconino County Recorder Candace Owens or any of her election workerss from blocking Diane Wickberg from voting while attired in her shirt proclaiming “Flagstaff Tea Party — Reclaiming Our Constitution Now.” Anyone else with the same shirt also cannot be barred from going to vote on Nov. 2.

Diane Cohen, an attorney for the Goldwater Institute which represents Wickberg, said the injunction is a preliminary victory. She said the fact the ruling legally affects only Coconino County does not mean election officials elsewhere are free to impose their own election-day clothing decisions.

“The fact that this is happening in Coconino County should be a warning to other counties,” Cohen said. But she said those counties could also see it as “an opportunity” to examine — and, if necessary, change their own regulations.

Owens, however, said there was no legal victory as she didn't put up a fight. She told Capitol Media Services she agreed to the injunction rather than burden her county with the expense of fighting it.

But Owens said she remains convinced that the T-shirt at issue does amount to improper electioneering. And Owens pointed out that the injunction she agreed to applies only to next month's election — and only this particular shirt — with no legal ruling on what happens after that.

Cohen, while agreeing that the scope of the injunction, said she remains convinced that Teilborg, after considering all the evidence, eventually will rule such shirts are permissible in polling places.

The outcome of the litigation will have statewide implications for voters who up at the polls not only wearing tea party apparel but also shirts and buttons with other messages.

State law prohibits “electioneering” in and adjacent the polling places. The fight is over what that means.

This lawsuit stems from the fact that Wickberg was forced to cover her tea party shirt before being allowed to vote in the August primary.

“There was no reasonable basis for the county of Coconino and their employees and recorder to make the determination that Diane Wickberg's Flagstaff Tea Party shirt constituted electioneering,” Cohen said.

“It is not a political party on the ballot,” she continued. “Nothing on the shirt expressly advocates for any party or candidate or ballot measure.”

Owens, in her court filings, defended the decision of the poll workers.

For starters, Owens noted that various tea party groups have endorsed specific candidates, and that these candidates often publicly tout that endorsement.

The Goldwater Institute said the specific tea party to which Wickberg belongs does not endorse candidates. Owens said that does not matter, saying that the views of national or state tea parties are not readily distinguishable by the public or poll workers from the Flagstaff Tea Party.

But Cohen argued that endorsements by outside groups are immaterial. She said Wickberg and others should be allowed to wear their shirts even if the group did endorse candidates.

For example, she said, the AFL-CIO also makes endorsements. But Cohen said that should not preclude someone from wearing a shirt or button with the union name on it to the polls.

Owens, however, sees some differences.

“The Tea Party is political in nature and does not exist for purposes other than influencing politics,” her attorneys wrote in their response to the lawsuit.

Still, Owens conceded, the law about what is and is not permissible “isn't very clear.” She said that results in poll workers having to make decisions on a case-by-case basis.

“My commitment for for next year is to actually work with the election officials and the secretary of state to see if we can come up with criteria regarding electioneering,” Owens said.