[Image via mprnews]

Yesterday, the U.S. Supreme Court handed down its ruling in Minnesota Voters Alliance v. Mansky, re-confirming that state laws banning certain political apparel in the polling place are permissible but finding that Minnesota’s law sweeps too broadly and thus violates the Constitution. SCOTUSBlog’s Amy Howe has more:

When Minnesota voters go to the polls in November, they’ll likely have more wardrobe options than the last time the state held an election. That’s because this morning the Supreme Court ruled that a state law prohibiting voters from wearing clothing or other apparel containing political messages to the polls violates the First Amendment. Minnesota had defended the law as a measure to ensure an “orderly and controlled environment” at the polls, but today the justices agreed with the challengers that the law is too vague. However, the justices left open the possibility that the state could pass a new law regulating apparel at the polls, as long as that law is more targeted.

The dispute arose in 2010, when Andrew Cilek went to his local polling place to vote. Cilek was wearing a T-shirt bearing (among other things) the Tea Party logo and the message “Don’t Tread on Me,” as well as a button with the message “Please I.D. Me,” often worn by opponents of voter fraud. When an election worker told him that he would have to take off or cover up the T-shirt and button, Cilek refused. He was eventually allowed to vote, but an election worker recorded his name and address.

Cilek and the Minnesota Voters Alliance, a group that describes itself as a “nonpartisan political organization” made up of “citizens, volunteers, and experts committed to safeguarding and improving our elections process,” 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 today the Supreme Court – by a vote of 7-2 – reversed.

In an opinion by Chief Justice John Roberts, the majority emphasized that states have the right to try to ensure a peaceful polling place. Moreover, because polling places are, “at least on Election Day, government-controlled property set aside for the sole purpose of voting,” restrictions on speech there are subject to a relatively low bar: The restrictions simply have to be reasonable. [emphasis added]

But Minnesota’s ban on “political” apparel fails even that “forgiving” test, the majority concluded, because both the text of the law and the state’s interpretations of it provide so little guidance about what kind of apparel may or may not be worn to the polls. For example, the court observed, the word “political” could include “a button or T-shirt merely imploring others to ‘Vote!’” And some of the state’s efforts to provide more guidance on what apparel is allowed, through a policy distributed in 2010, the court suggested, may make things murkier, rather than clearer. The court noted that the policy would bar “issue oriented material designed to influence or impact voting,” such as the “Please I.D. Me” buttons worn by Cilek and his colleagues, even though there was no voter I.D. requirement on the ballot. “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,” the court stressed.

After lamenting the lack of guidance in the Minnesota law at issue, the court then tried to provide a little guidance of its own. While making clear that it was not endorsing the constitutionality of such laws, the court noted that other states restrict apparel at the polls “in more lucid terms”: California bars signs and apparel that advocate for or against candidates or measures on the ballot, and Texas prohibits apparel “relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.” The court also appeared to confirm in a footnote that states “may prohibit messages intended to mislead voters about voting requirements and procedures.” But here, the court concluded, Minnesota has not provided the kind of “objective, workable standards” needed to pass muster under the First Amendment.

Justice Sonia Sotomayor dissented, in a relatively brief opinion joined by Justice Stephen Breyer. Sotomayor agreed with the majority that states can place at least some restrictions on apparel at the polling place, but she would have asked the Minnesota Supreme Court “for a definitive interpretation of the political apparel ban,” “which likely would obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today.”

UC-Irvine’s Rick Hasen shared the sentiment of many in the elections field when he expressed some disappointment in the outcome but praised the Court for preserving state’s ability to protect voters in the polling place:

Not every Supreme Court decision about elections is a disaster, and the ruling in Minnesota Voters Alliance v. Mansky striking down Minnesota’s very broad ban on wearing political apparel in polling places is a pretty good one. Although the court struck down a law I thought it should have upheld, the opinion shows a more realistic and functional understanding of the political process than the court has shown in campaign finance cases. It gives states ample room to assure that people can vote at polling places free of political pressure and intimidation…

Even though the majority struck down Minnesota’s law, it did so in such a way that allows election officials great discretion to keep politicking out of the polling place and let people vote in peace. The court said polling places were “nonpublic forums,” where the government could limit speech in broad ways. It recognized that the state “may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most.”

I share Rick’s relief at the Court’s unanimous endorsement of polling place apparel restrictions, even if they didn’t all agree on whether Minnesota’s law passed muster. As I have said elsewhere, I believe the polling place is like a shade tree from the hot sun of politics on Election Day – and it’s good to see the Court committed to giving voters a brief break from the fierce back-and-forth of campaign rhetoric as they cast their ballots.

That said, I don’t think this settles the matter, for two reasons. First, “fixing” Minnesota’s statute is easier said than done; the state legislature is still divided on many issues including – so much so that it failed to pass a bill that would have allowed Minnesota to collect its federal cybersecurity funds before the 2018 election. Second, opponents of polling place restrictions aren’t finished yet; as NPR’s Nina Totenberg writes:

[F]ree-speech purists are not giving up. Ilya Shapiro of the libertarian Cato Institute insisted that there is still room for a further challenge to more narrowly drawn statutes.

“I’d like to see a challenge to a law that actually specifically prohibited simply wearing a T-shirt with a party logo or the name of a candidate,” he said.

In summary, yesterday was a setback for Minnesota but a relief for most of the elections field overall – but you can bet this story has several more wardrobe changes to go before it’s finally finished. Have a great weekend and stay tuned …

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