Tea Party T-Shirt: Can What You Wear Determine Whether You Can Go to the Polls?

Diane Wickberg had never really been political. The 55-year-old Flagstaff grandmother was a registered Independent — and not just in name only.

"I just voted for the person who would fit my moral beliefs," she tells me. "If they were Republican, Democrat, Libertarian, or Independent, I didn't care — as long as they represented us well."

Then, last year, Wickberg watched in horror as the taxpayers bailed out General Motors. And the banks. And the insurance company for the banks.

When she heard on the radio that a new "tea party" group was forming to fight back, she was curious enough to attend a local get-together.

Today, that group has weekly meetings and an e-mail list of 500, and though there are no officers and no formal organizational structure, Wickberg is one of its most devoted members.

She tells me that the group is not political, not in the strict sense of the word. The Flagstaff tea party, at least, doesn't endorse candidates. It didn't take a stand on Proposition 100, the sales tax that voters approved on May 18. Nor did it weigh in on the municipal elections also on ballots that day.

And that's why it's so bizarre that Wickberg's membership led directly to a problem when she went to vote.

Because her tea party group meets on Tuesdays, Wickberg almost always wears a tea party T-shirt on Tuesdays. On May 18, it was a white one, which the group had ordered for Sarah Palin's visit to Arizona in March. It had a big picture of the Constitution, a little logo saying "We the People" and the phrase "Flagstaff Tea Party — Reclaiming Our Constitution."

"I didn't think twice about it," Wickberg says.

But that day, after meeting with tea party volunteers and just before picking up her grandson from school, Wickberg swung by the Baptist church in her neighborhood to vote.

There, the fashion choice that had seemed so innocuous proved to be anything but. Anxious poll workers told Wickberg she'd have to cover her T-shirt with a jacket if wanted to cast her ballot.

She didn't have a jacket, nor did she have a sweater. Ultimately, because there were no other voters in the polling place at that time, she was permitted to vote. But she was given a warning for the future.

"If you wear that T-shirt next time, you can't vote," the poll worker told her.

You might assume, as I did, that this was an overreaching temp, someone who, given a little power, was all too eager to exercise it.

You would be wrong.

I was.

When Wickberg called the Coconino County Recorder's Office to complain, she was told the worker had behaved appropriately. (As Recorder Candy Owens confirmed to me in a phone interview, she told Wickberg that the tea party has an agenda, so the shirt wasn't okay. She suggested that, in the future, Wickberg should bring a jacket — or cast an early ballot by mail.)

Egged on by her fellow tea party members, Wickberg called the Arizona Secretary of State's Office. There, she was told that it, too, agreed with the decision.

The reason: Arizona law bans "electioneering" within 75 feet of any polling place. Ever notice how volunteers pimping candidates stay outside polling places — and stand behind a line, far away from the doorway? That's due to electioneering restrictions.

The idea, says Owens, is that no one should feel pressured or intimidated inside a polling station.

And it's a good idea. The problem is that, by banning tea party T-shirts, the poll workers in Flagstaff overstepped badly in their enforcement.

Even if J.D. Hayworth doesn't want to admit it, the tea party isn't a political party. It doesn't endorse candidates. While members are conservative, they've made a point of inviting, and hosting, local Democrats on Tuesday evenings. (They even moved their usual meeting to Wednesday one week to accommodate Mayor Sara Presler, a Democrat, since city council meetings are on Tuesdays.)

And while Wickberg acknowledges that she voted "no" on Proposition 100, the sales tax increase on the ballot May 18, her tea party group wasn't the reason.

"We hadn't even talked about it," she says.

But let's say the Flagstaff tea party had taken a hard line against the ballot measure. Let's say it openly campaigned against the sales tax.

In that case, I think the poll workers would still be in the wrong. The electioneering prohibition is meant to ban overt campaigning — "knowingly" attempting to influence votes.

Wickberg's T-shirt wasn't doing that. It didn't mention Proposition 100. It didn't have a word to say about anyone running on that day's mayoral ballot.

And if the standard of electioneering is merely a group that's weighed in on the issues at hand, well, there are a whole lot of groups that eagle-eyed poll workers would have to watch for. The Professional Firefighters of Arizona and the Arizona Education Association both endorsed the sales tax measure. Should their shirts have been banned?

Clint Bolick, an attorney at the Goldwater Institute, a Phoenix-based libertarian think tank, believes the poll workers' actions were unconstitutional. Contacted by a tea party member, he fired off a letter to both the secretary of state and the recorder.

Bolick says he has no problem with the electioneering restrictions. But he believes they're being improperly applied in this case. "It's fine to prohibit overtly political activity at polling stations," he says. "But obviously this goes down the path of utter subjectivity."

Bolick had a bit of fun with his letter.

"A number of membership groups, many of which have overtly political arms, took positions on Proposition 100," he writes. "Is it your interpretation of the law that someone wearing an [Arizona Education Association] T-shirt should be excluded, because that organization endorses candidates and vigorously supported Proposition 100? If not, why not? What about the NRA? Sierra Club? Planned Parenthood? The Flagstaff Chamber of Commerce? The PTA?

"How about a depiction of Che Guevara or Ronald Reagan, who were political figures who might signal sympathy with particular candidates or causes?"

As funny as that sounds, Bolick has a point. The First Amendment decrees that the government doesn't get to decide which opinions are good and which need to be silenced. Government workers may find your "Che" shirt appalling: What bureaucrat likes a revolutionary? But they shouldn't be able to restrict you from wearing it.

Obviously, poll workers have to control their stations. We can't have voters being coerced by pro-union goons — or harassed by anti-tax goobers, either. I believe Candy Owens when she says her workers were acting in good faith.

But electioneering rules must be narrowly applied. You can ban T-shirts that openly advocate for a particular candidate or proposition on the ballot — but you simply can't go down the path of trying to decide which groups are okay and which aren't.

The can of worms is too wormy.

And honestly, I don't think it's a coincidence that it was a "tea party" shirt that got blocked. It's fashionable, these days, to sneer at the tea party — and even to fear it a bit.

There's no doubt in my mind that plenty of Flagstaff residents went to the polls in Sierra Club T-shirts. And no one said a word about it. That's because in Flagstaff, being a fan of the Sierra Club is right up there with liking firefighters. It's a given. Being a tea party member is a different cup of, well, tea.

And it's all too easy to let our subconscious biases take over. A group we like has a "cause." A group we disagree with has "an agenda." We don't even realize that our categorization is, itself, a value judgment — and one the government shouldn't be in the business of making.

When I first reported Wickberg's story on our Valley Fever blog last week, some of our readers were quick to pipe up. "Tea Pottiers [sic] do have an agenda," one wrote, "and that agenda is not well embraced."

And that's precisely why we have the First Amendment. Well-embraced agendas don't need its protections. It's the unpopular causes, and the revolutionaries, who do.

Unless the T-shirt ban is enforced across the board — which strikes me as completely impossible — unpopular groups should have just as much of a right to wear their colors as popular ones.

God knows, tea partiers are probably as much a minority in lefty Flagstaff as progressives are in Phoenix.

And if you want the right to wear your grimy old Che T-shirt, well, you'd better fight for Diane Wickberg's right to wear her Sarah Palin-inspired "We the People" one. That's how the First Amendment works.

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Sarah Fenske
Contact: Sarah Fenske

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