Reforms at the end of the century aimed to stop the shenanigans.
Author Edgar Allan Poe, the 19th-century master of American macabre fiction, may have died of dirty politics. According to legend, a gang of party “poll hustlers” kidnapped and drugged him. They forced him to vote, then abandoned him near death. Details are murky, but we do know Poe died in Baltimore days after the Oct. 3, 1849, election.
The story, though likely untrue, is certainly plausible. Election Day in 19th-century America was a loud, raucous, often dangerous event. Political parties would offer food, drink and inducements ranging from offers of bribes to threats of beatings to encourage voters to cast the party’s official ballot.
Reforms at the end of the century – particularly after an especially dirty 1888 presidential election – aimed to stop the shenanigans, assure the safety of voters and elevate the act of voting.
That is why the U.S. now has secret government-printed ballots rather than party-provided ballots. And all 50 states have laws that ban potentially intimidating behavior at polling places.
The idea behind these anti-electioneering laws is to prevent the kind of “poll hustling” to which Poe may have fallen victim.
Party tough guys cannot follow – or drag – helpless voters into the polling place, or watch them to make sure they vote the correct ballot with the implicit threat that a “wrong” vote could result in a beating.
These laws generally prohibit campaign activities at or near polling places – wearing campaign paraphernalia, shouting slogans, even loitering inside those polling places. Distance requirements for campaigners, ranging from 10 feet from a polling place in Pennsylvania to 600 feet away in Louisiana, help to assure that secret ballots are actually cast in secret.
But these vestigial laws meant to purify 19th-century elections may be ill equipped for our hyperpartisan modern elections
If voters come to the polls wearing symbols like the Gadsden “Don’t Tread on Me” flag that has evolved into an anti-government symbol, a rainbow pin associated with gay pride, or even a sticker from a spice company whose owner detests Trump, those symbols can take on a perceived political meaning. Under these laws, these people could be accused of illegally campaigning where people vote.
Political reformers in the late 1880s saw elections as too closely tied to party machines and their Election Day carousing. Much of the reform around this time was focused on “cleaning up” politics and destroying the nefarious influence of party machines.
In fact, the current popular understanding of party machines as being universally corrupt and lowbrow might be because “good government” activists won, so they got to write the history
Yet now, these reforms meant to purify 19th-century elections may not have the effect the authors intended.
For example, a New Hampshire woman opted to vote topless in that state’s September 2020 primary after election officials told her that her anti-Trump T-shirt ran afoul of New Hampshire laws forbidding campaigning within a polling place.
In fact, 10 states currently have laws on the books regulating the kinds of clothing voters can wear to the polling place.
These laws may violate the U.S. Constitution’s First Amendment prohibition on limits to free speech, but not all have been tested in court. In the 2018 opinion Minnesota Voters Alliance v. Mansky, the Supreme Court ruled that the state’s laws to create an “orderly and controlled environment” around the polling place were overly vague.
According to the Minnesota opinion, “a rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable.”
Poll workers, then, do not need to keep abreast of what a black-and-yellow polo shirt means or which spice company has engaged in political advocacy.