Are Polling Places Safe Spaces? Justices Struggle With Minnesota’s Political-Apparel Ban

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court Wednesday heard a First Amendment challenge to a Minnesota state law that bans political attire and insignias at the polling place.

It was difficult to anticipate how the court might rule, though the justices seemed vexed at the lack of clear guidance from the parties.

The case arose in 2010 when Minnesota Voters Alliance Executive Director Andrew Cilek was refused entry to a Hennepin County ballot booth for wearing a T-shirt featuring the Gadsden flag and a Tea Party slogan. He left, returned later, and was again asked to remove his apparel. He complied and returned once more later in the day. On that occasion, he was allowed to cast his vote, though a poll worker recorded his name for possible future prosecution.

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On appeal to the Supreme Court, the alliance argues the Minnesota law is unconstitutionally overbroad. Though the state may have an interest in banning intimidating messages or electioneering in the polling place, the alliance claims the law suppresses protected speech and other regulations exist to vindicate Minnesota’s concerns.

In response, the state says it has a legitimate interest in maintaining order and composure on election day — once an unruly occasion prone to chicanery like racial intimidation.

Several justices suggested at Wednesday’s argument a state could ban all political speech inside the polling place. Justices Stephen Breyer and Elena Kagan said it’s reasonable for Minnesota to enforce a short period of thoughtful reflection just before the vote, while Justice Anthony Kennedy wondered where in the Court’s precedents they had extended First Amendment protections to the polls or some such similar venue.

Alliance lawyer David Breemer replied the polling place is not a serene setting. “Polling places are not pristine retreats from the real world, and I don’t believe the government can sacrifice the First Amendment to make them that way,” he said.

In a 1992 case called Burson v. Freeman, the high court said states could prohibit electioneering in immediate proximity to polling facilities. Breemer said Burson forbids active politicking, where the Minnesota law bans passive speech. There’s a difference, he said, between soliciting votes and unassertively wearing a T-shirt. But Justice Neil Gorsuch pointed out courts often struggle with the active/passive distinction.

“That has proven to be one of the most slippery concepts in all of law,” Gorsuch said.

Justice Samuel Alito submitted Minnesota’s lawyer, Daniel Rogan, to a withering series of hypotheticals to show the sweep and arbitrariness of the law. Alito asked if the state could ban a T-shirt adorned with the text of the Second Amendment. Rogan said it could. The justice then asked if Minnesota could ban a T-shirt featuring the text of the First Amendment. Rogan said it could not.

During that same line of questioning, Rogan said the state could ban a National Rifle Association T-shirt but not a #ParklandStrong T-shirt.

As a general matter, the justices had a hard time drawing a line between ordinary protected speech and disruptive speech the state could legitimately want to restrict. At times, they flashed frustration with the lawyers, who also struggled to identify a clean, clear distinction.

A decision in the case, Mansky v. Minnesota Voters Alliance, is expected by June.

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