Monroe County election board mulls investigation of unlawful electioneering at polls by voter wearing COVID-19 mask with candidate’s name

Monroe County’s election board could eventually wind up conducting an investigation of unlawful electioneering by a voter at the early in-person polls.

The voter has been described as wearing a COVID-19 mask with a candidate’s name printed on it, inside the polling location at Election Central, while voting was taking place. The voter, who was allowed to cast a ballot, refused to swap to a different mask or turn his own inside out.

That appears to be a violation of Indiana’s state election law, which says that electioneering is not allowed inside a polling place.

The definition of electioneering includes “expressing support or opposition to any candidate” and “wearing or displaying an article of clothing, sign, button, or placard that states the name of any political party or includes the name, picture, photograph, or other likeness of any currently elected federal, state, county, or local official.” [IC 3-14-3-16]

It was an election worker who gave the county election board a report on the matter at its Monday morning meeting, which was held to square away any remaining issues before Election Day.

Depending on the outcome of the investigation, the voter could wind up charged with committing a Class A misdemeanor, according to Matthew Kochevar, who is co-general counsel for the Indiana Election Division.

The punishment for a Class A misdemeanor is up to a year in jail and a $5,000 fine.

To get to an outcome involving jail time and a fine, the county election board could investigate the electioneering allegation at a public meeting of the board under[ IC 3-6-5-31],  Kochevar wrote in an emailed message to The Square Beacon. The election board could then vote to forward the matter to the county prosecutor under [IC 3-6-5-32], as a violation of the electioneering statute, Kochevar said.

According to a statement issued by Monroe County election board member Carolyn VandeWiele late Monday, she spoke to the Monroe County prosecutor’s office and confirmed: “They will prosecute any offenses that we bring before them.”

In the past, VandeWiele said, when such issues of electioneering have arisen at local polls it has not escalated. “People were willing to accept that it was not allowed (sometimes it took a little convincing) and changed their shirt or took off their button,” she said.

VandeWiele’s statement continued, “Our intention here is not to be punitive, but to prevent voter intimidation by anyone, that all voters should be comfortable within the chute and polling site and that no one is above the law.” The chute is defined in the state election statute as “the area or pathway that extends fifty (50) feet in length, measured from the entrance to the polls.”

VandeWiele’s statement says, “A person who knowingly chooses to electioneer and has been informed of the consequences should be prepared to be prosecuted.”

VandeWiele said the election board intends to post a policy on the issue. “Once we develop the policy, we will ensure that our workers understand that policy and what they need to do to formulate a complaint.”

According to the election worker who reported the matter to the board at its Monday morning meeting, the voter refused to swap it out for a different mask and refused to turn it inside out. The voter was still allowed to cast a ballot, according to the election worker, which was a decision made ultimately by Monroe County election supervisor Karen Wheeler.

At the time, the election worker did not agree with that outcome. “I was very upset,” she told the election board. The election worker, who herself cast a ballot that day, said she felt as if her own rights were violated, because was not able to participate in a fair election.

When the voter was allowed to “saunter” around Election Central with a mask that had a candidate’s name printed on it and cast a ballot, the election worker said, “I felt like quitting right there and walking off my job. …But we were short an election worker that day already. And I did not want to do that to the voters, because that’s my prime objective, to make it right for the voters.”

Wheeler’s call was the correct one, according to the election board.

According to VandeWiele’s statement on behalf of the election board, Indiana’s secretary of state’s election handbook states: “While a poll worker may ask that a voter remove or cover-up the ‘electioneering’ items, a voter who does not comply with the request does not lose their right to vote.”

At Monday morning’s meeting, election board member Hal Turner said Wheeler’s decision to allow the voter to cast a ballot was the right call. She did “the right thing at the right time,” he said.

What might have created some uncertainty in the moment, according to Monroe County’s clerk, Nicole Browne, was the voter’s claim that a US Supreme Court ruling had invalidated laws against wearing apparel at the polls bearing a candidate’s name. “That, I believe, caught people off guard who were working,” Browne said.

The US Supreme Court ruling that the voter might have meant is Minnesota Voters Alliance et al. v. Mansky et al. The 2017 ruling struck down a Minnesota law that prohibited wearing of a “political badge, political button, or other political insignia” at the polls. The court ruled that the wording was too vague.

That contrasts with more specific wording in the election law for Indiana.

According to Kochevar, the Supreme Court ruling on the Minnesota case did not invalidate Indiana’s electioneering statute. He added, “I am aware of no other court jurisdiction that covers Indiana that has invalidated this statute.”

The Indiana election law prohibits “expressing support or opposition to any candidate” and “wearing or displaying an article of clothing, sign, button, or placard that states the name of any political party or includes the name, picture, photograph, or other likeness of any currently elected federal, state, county, or local official.”

Not included in the list under the “article of clothing clause” is the name of any candidate. According to a reliable source, the name printed on the mask giving rise to the incident was “Trump.” That would be covered by statute as the name of a “currently elected federal…official.” It looks like it would also be covered under the clause that prohibits “expressing support or opposition to any candidate.” [IC 3-14-3-16]

It’s not certain that the election board will try start a process to prosecute the voter whose mask caused the incident.

But the Republican Party representative to the board, Hal Turner, said at Monday’s meeting, “I would be happy to call that person before the election board.” VandeWiele, who is the Democratic Party representative to the election board cautioned, “We need to determine what we can do, before we do so.”