Political speech is essential to the democratic process. That’s why the Supreme Court has recognized that First Amendment protections are at their zenith for core political speech. Yet Texas—in a purported attempt to stop disruption and “undue influence” at the polling place—broadly restricts political expression within 100 feet of a polling place. Three provisions of the Texas Election Code ban apparel and displays that are “political” or that feature speech “relating to” an issue, candidate, or political party on the ballot. Both “political” and “relating to” are nebulous concepts, and Texas has chosen to provide little clarification. Texas leaves the interpretation and application of these laws largely up to election judges and clerks, who have often applied the ban broadly.

Jillian Ostrewich experienced the absurd reach of these restrictions in 2018. Ostrewich is married to a firefighter who serves in the Houston Fire Department. In November 2018, Houston voters were presented with an initiative measure to raise firefighter pay. During the early voting period, Ostrewich went to vote while wearing a “Houston Fire Fighters” t‑shirt. The t‑shirt said nothing about the initiative or firefighter pay. Nonetheless, an election clerk confronted Ostrewich as she tried to enter the polling place and told her she could not wear her shirt inside because they were “voting on that.”

Election laws that prevent citizens from wearing a simple “Houston Fire Fighters” t‑shirt violate the First Amendment. The Supreme Court has held that states have an interest in stopping the “undue influence” of voters at the polling place, but Texas’s ban targets political expression far beyond what can reasonably be characterized as “undue influence.” Texas election officials have banned displays that did not cause any chaos, intimidation, or coercion. Concluding that Ostrewich’s t‑shirt could plausibly fall into the category of “undue influence” strips “undue” of any meaning.

To make matters worse, Texas’s election laws promote arbitrary enforcement. Because displaying anything “relating to” to a candidate or issue on the ballot is prohibited, election judges and clerks are forced to keep a mental index of anything that is tangentially related to what is being voted on. Of course, Texas election officials do not maintain such mental indexes, and so the laws are inconsistently applied.

Ostrewich challenged the constitutionality of all three provisions of the Texas Election Code in federal court. The district court struck down two of the three statutes (banning “political” speech) but upheld one (banning speech “relating to” the ballot). The case is now before the Fifth Circuit, and the Cato Institute has filed an amicus brief in support of Ostrewich’s claims. Texas is capable of protecting voters from “undue influence” at the polling place with greater precision, and it should be required to do so. Just as the Supreme Court struck down a similarly vague law in Minnesota Voters Alliance v. Mansky (2018), the Fifth Circuit should strike down these three laws in full.