Late last week, the ACLU of South Carolina learned that the Greenville County Election Commission had instructed poll workers to turn away voters wearing clothing or accessories displaying phrases like “Black Lives Matter.” This decision was apparently made unilaterally and with no notice to the public. Moreover, poll workers were told that the election clerks would be provided a list of prohibited phrases—but that neither the workers nor the public would be able to view the list.
In response, the ACLU of South Carolina reached out to the Greenville County Election Commission and confirmed that the reports were true. The Commission did have a policy instructing poll workers to turn away voters wearing clothing or accessories displaying phrases the Commission deemed “campaign materials.”
At the ACLU of SC, we were alarmed by this policy for two reasons:
- The First Amendment applies at the voting booth. With limited exceptions, voters are entitled to express themselves while at the polls. Though the state may place reasonable limits on the apparel worn by voters, courts have generally required that those limits be tailored to guard against “electioneering”—i.e., attempts to sway voters for or against particular candidates or questions on the ballot. By contrast, slogans that reflect a voter’s views on broader social movements—and are not about a current candidate—are protected by the First Amendment.
- Secretly banning an undisclosed list of words and phrases creates confusion for voters and sows the potential for discriminatory enforcement. Because the public doesn’t know what speech is prohibited, poll workers are left with unchecked authority to decide who gets to vote and who does not—opening the door wide for discriminatory enforcement.
Because we are committed to protecting both the First Amendment and the voting rights of all South Carolinians, we sent a letter to the Greenville County Election Commission, which you can read here. We asked that they immediately stop enforcing these secret barriers to the polls.
While we were waiting for the Commission to respond, we received reports that brought our concerns to life. We learned that Greenville voters were indeed being turned away for wearing “Black Lives Matter” and LGBTQ-Pride apparel. We did not receive complaints that voters were rejected for wearing “Make America Great Again” clothing, raising questions about discriminatory enforcement.
After receiving our letter, the Greenville County Election Commission reversed their policy and issued new guidance stating that clothing or accessories displaying phrases like “Black Lives Matter” (BLM) or “Make America Great Again” (MAGA) would now be allowed. You can read their policy here.
In the wake of Greenville’s letter retracting their speech-chilling policy, we have been contacted by many community members who, like us, reject the notion that BLM and MAGA are equivalent groups, movements, or statements. Donald Trump, architect of the socially regressive MAGA movement, stands diametrically opposed to most—if not all—of our work at the ACLU. But fortunately, the First Amendment does not say: “free speech for me, but not for thee.” To protect our right to wear “Black Lives Matter,” we must also fight against authoritarian attempts to silence speech we disagree with.
We respect that poll workers are likely to find themselves in a difficult position this election as our country is ever more polarized. We encourage poll workers to contact us if they believe their election commission is enforcing policies that stand in the way of South Carolinians exercising their right to vote. Contact us here.
We understand that some members of the public would prefer to vote in an environment without any political statements, but our preferences cannot require voters to categorically forfeit their freedom of expression. We encourage voters to contact us if they believe they experienced intimidation or coercion while voting. Contact us here.
Early voting is open through November 6 at 6:00 pm, and polls are open on Election Day, November 8, from 7:00 am to 7:00 pm. Check out our Voting Information Center for more information about how you can vote in this critically important midterm election.