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.
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.”
This post was also published on SCOTUSblog.