Supremes Axe Law Banning Political Apparel At Polling Places, Strike Blow For Free Speech

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Kevin Daley Supreme Court correspondent
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A Minnesota law banning political apparel in the polling place violates the First Amendment, the U.S. Supreme Court ruled Thursday.

Chief Justice John Roberts wrote the opinion for a seven-justice majority, which included Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, Elena Kagan and Neil Gorsuch.

“The Supreme Court today vindicated the constitutional protections of every American,” said Pacific Legal Foundation lawyer J. David Breemer, who argued the case before the high court in February. “The Court put all government entities on notice — they cannot dictate the terms of personal expression, nor can they designate the arbiters of free speech at their whim.”

The case was occasioned when Andrew Cilek, executive director of a tea-party coalition called the Minnesota Voters Alliance (MVA), was refused entry to a Hennepin County ballot booth for wearing a T-shirt featuring the Gadsden flag and a tea party slogan in 2010.

On appeal to the Supreme Court, the MVA argued the state statute was overbroad. A majority of the Court agreed, but found that the states have latitude to enact restrictions on conduct and expression at the polling place.

“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,” Roberts wrote.

However, the Court said Minnesota’s law fails constitutional muster because it is applied in sweeping, haphazard fashion. The statute, Roberts notes, bans political badges, buttons, and insignias, but offers no guidance as to what counts as “political.” Thus, any piece of apparel relating to public affairs could conceivably be prohibited, even “a button or T-shirt merely imploring others to ‘Vote!'”

State policy on enforcement of the law only makes matters worse, the Court found. The Minnesota Secretary of State issued a guidance document for precinct judges explaining that the law encompasses “issue oriented material,” and “material promoting a group with recognizable political views.”

Roberts found the policy vague and erratic, since numerous forms of expression can be considered “issued oriented,” and many non-political entities express views on matters of public interest. Even Ben & Jerry’s, the chief justice noted, has an “Issues We Care About” page on their website.

Minnesota’s enforcement pattern “poses riddles that even the state’s top lawyers struggle to solve,” Roberts wrote. He then cited an exchange from the February oral arguments in which Minnesota lawyer Daniel Rogan said a shirt bearing the text of the First Amendment would be permitted in a polling place, while a similar shirt adorned with the text of the Second Amendment would be forbidden.

“If a state wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one offered by Minnesota here,” he said.

In a 1992 decision called Burson v. Freeman, the high court upheld a Tennessee law banning electioneering within 100 feet of the polling pace. Thursday’s decision draws heavily from Burson, noting the states have wide authority to maintain order in voting precincts, given the long history of disarray and voter intimidation that formerly prevailed in American elections.

Justice Sonia Sotomayor dissented, joined by Justice Stephen Breyer.

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