Jillian Ostrewich v. Teneshia Hudspeth, in Her Official Capacity as Harris County Clerk, et al.

The First Amendment requires that electioneering statutes that ban certain voter apparel in polling places contain “objective, workable standards” that are “capable of reasoned application” and do not rely on election workers’ “mental index of platforms and positions” of every candidate, political party, and measure on the ballot. Minnesota Voters Alliance v. Mansky, 138 S.Ct. 1876, 1888, 1892 (2018). When considering polling place censorship, the decision below omitted the “capable of reasoned application” factor and its corollary that the government cannot rely on election workers’ background knowledge or media consumption to determine “what may come in [and] what must stay out.” Id. at 1891–92. The questions presented are:

1. Does a state violate the First Amendment when it censors voters’ t-shirts with a union logo in a polling place because the union took a position on a ballot measure?

2. On a fully developed record of heavy-handed and haphazard censorship, including arresting, detaining, and turning away voters, does a state’s censorship of voters wearing apparel without reference to anything on the ballot violate the First Amendment?

3. Is the Texas Secretary of State, the chief elections officer in the state, immune from suit seeking injunctive relief from unconstitutional elections statutes because she does not personally enforce them?