Political Apparel & Voting Rights
On June 14, 2018, in Minnesota Voters Alliance v. Mansky, the United States Supreme Court struck down Minnesota’s ban on political apparel in polling places. A 7-2 majority, led by chief Justice John Roberts, held that Minnesota’s law prohibiting voters from wearing a political badge, political button, or anything bearing a political insignia inside a polling place on election day, violated the First Amendment. Chief Justice Roberts’ majority opinion was joined by Justices Kennedy, Thomas, Ginsberg, Alito, Kagan, and Gorsuch. Justices Sotomayor and Breyer dissented.
The Supreme Court held that although a state may prohibit certain apparel because of the message it conveys so that voters can focus upon their voting decisions, any state with such restrictions must draw a “reasonable” line. In addition, the Court noted that the state “must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. Here, the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations” provided by the state in official guidance statements and in representations to the Court, caused the Minnesota restriction to fail.
The Minnesota law aligned two important interests against each other: the right to vote in a safe environment and the right to say (and to wear) what you want. Although the Court struck down this particular state law, it recognized prior Supreme Court cases that permit the government to limit speech in and around polling places in order to prevent voters from being intimidated, confused, or defrauded. In so doing, the Court implied that Minnesota’s problem was that it drafted a law that was overly broad, not that it was trying to protect voters at polling places by limiting speech.
This is how the dispute arose. In 2010, Andrew Cilek went to his local polling place to vote wearing a T-shirt bearing the Tea Party logo and message, “Don’t Tread on Me,” as well as a button with the message, “Please I.D. Me.” When an election worker told him that he would have to take off or cover up the t-shirt and button, Cilek refused. Eventually, he was allowed to vote, and an election worker recorded his name and address.
Cilek and the Minnesota Voters Alliance went to court to challenge the law as a violation of the First Amendment’s guarantee of free speech. The U.S. Court of Appeals for the 8th Circuit upheld the law, but the Supreme Court reversed that holding. The Supreme Court recognized that polling places, at least on election day, are government-controlled property set aside for the sole purpose of voting. Restrictions on speech there, according to the Supreme Court, are subject to a relatively low bar: the restrictions merely have to be reasonable. Even considering this low bar, however, the Court found that Minnesota’s restrictions banning “political” apparel were too vague, lacking guidance as to the meaning of “political.” Minnesota failed to provide the kind of “objective, workable standards” needed to pass muster under the First Amendment in order to restrict speech.
At least 10 states impose political apparel bans, and all fifty states restrict political speech to some extent at polling places. Although a political t-shirt is unlikely to destroy democracy, in today’s political climate, it may keep the peace. Perhaps recognizing this, the Supreme Court’s decision acknowledged that a polling place, as Minnesota argued, should be “an island of calm in which voters can peacefully contemplate their choices.”
