January 18th, 2020

On Law

Supreme Court says Minnesota ban on political apparel in polling places too broad

Robert Barnes

By Robert Barnes The Washington Post

Published June 15,2018

 Supreme Court says Minnesota ban on political apparel in polling places too broad
WASHINGTON - The Supreme Court on Thursday struck down Minnesota's ban on wearing "political" apparel to polling places on Election Day, saying that the state's intentions may be good but that its law was too broad and open to differing interpretations.

The 7 to 2 decision written by Chief Justice John G. Roberts Jr. was careful not to cast constitutional doubt on restrictions every state imposes to protect the solemnity of the voting booth.

But Minnesota's prohibition on the wearing of a "political badge, political button or other political insignia" raised more questions than it answered, Roberts wrote, and gave too much discretion to election judges trying to figure out what counted as "political" and what did not.

"The state must be able to articulate some sensible basis for distinguishing what may come in from what must stay out," Roberts wrote. "Here, the unmoored use of the term 'political' in the Minnesota law, combined with haphazard interpretations the state has provided in official guidance and representations to this court, cause Minnesota's restriction to fail even this forgiving test."

The Supreme Court decided 25 years ago that states could ban electioneering and distributing campaign materials within 100 feet of polling places, and all states have restrictions.

But Minnesota and nine other states go further. Minnesota's clothing and button ban has been interpreted to include the names of political parties, candidates, support for or opposition to a ballot question; materials designed to influence voting; and the promotion of groups with recognizable political views, such as unions, the U.S. Chamber of Commerce and other organizations.

On Election Day 2010, Andrew Cilek, executive director of the Minnesota Voters Alliance, was stopped at the polls for wearing a tea party T-shirt and a button saying, "Please I.D. Me." (The button issue has dropped out of the case.)

Cilek was told that he could not vote without covering up or losing the T-shirt. Eventually, he was allowed to vote.

At oral argument, the justices peppered Minnesota's lawyers with hypotheticals about what would and would not be allowed, and Roberts replayed the "riddles" he said state lawyers struggled to answer:

"A shirt declaring 'All Lives Matter,' we are told, could be 'perceived' as political. How about a shirt bearing the name of the National Rifle Association? Definitely out. That said, a shirt displaying a rainbow flag could be worn 'unless there was an issue on the ballot' that 'related somehow . . . to gay rights.' A shirt simply displaying the text of the Second Amendment? Prohibited. But a shirt with the text of the First Amendment? 'It would be allowed.' "

Justices Sonia Sotomayor and Stephen G. Breyer dissented. They said the court should have first given the Minnesota Supreme Court a chance to interpret the law, and perhaps given election judges more guidance on what the law covered.

All justices agreed that states may impose restrictions on speech at polling places.

"Casting a vote is a weighty civic act, akin to a jury's return of a verdict, or a representative's vote on a piece of legislation," Roberts wrote. "It is a time for choosing, not campaigning. The state may reasonably decide that the interior of the polling place should reflect that distinction."

The case is Minnesota Voters Alliance v. Mansky.