Supreme Court Makes It Clear: First Amendment Rights Don’t End at the Polling Booth

June 17, 2018 in News by Ken

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By Hans von Spakovsky and Elizabeth Slattery

With just two weeks to go until the end of its term, the Supreme Court ruled 7-2 in Minnesota Voters Alliance v. Mansky that Minnesota’s ban on so-called political apparel at the polls on Election Day violates the First Amendment.

With Thursday’s decision, the high court has restored the ability of voters in Minnesota to express their views on everything from the Second Amendment to the #MeToo movement.

Minnesota had a very restrictive law that not only prohibited active campaigning in polling places but also barred voters from wearing badges, buttons and other items with a “political” message. But the state’s definition of what it considered to be “political” was so broad that even a T-shirt that simply said “Vote!” could be prohibited.

Minnesota said that if you showed up at a polling place wearing a T-shirt with the historic and famous Gadsden flag on it — the first flag of the Continental Marines — you could get thrown out.

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Apparently wearing a T-shirt with a picture of a coiled rattlesnake and the phrase “Don’t Tread on Me” is a “political” message that must be banned.

The court found as much in 1992, when it upheld Tennessee’s ban on active campaigning within 100 feet of a polling place. But Minnesota’s law went further, prohibiting not just campaigning, but all “political” speech, even if it’s unrelated to the election at hand, maintaining that this was necessary to protect voters’ ability to vote in an “orderly and controlled environment without confusion, interference, or distraction.”

Yet the state couldn’t come up with a clear set of objective guidelines for determining what is “political.” At the oral argument in March, for example, the state’s lawyer said a T-shirt with the text of the First Amendment would be allowed at the polls, but not a T-shirt with the text of the Second Amendment.

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The state also said it could ban any “issue-oriented material designed to influence or impact voting.” But what qualifies as an “issue”? The only answer the state could give was “any subject on which a political candidate or party has taken a stance.”

Under that definition, the court in its ruling asked: Would a “Support Our Troops” shirt be banned “if one of the candidates or parties had expressed a view on military funding or aid for veterans?” Would a “#MeToo” shirt be banned if someone talked about sexual harassment and assault?

The state said such shirts would be banned if a candidate talked about those issues.

Under that bizarre view, the court said, the state could have barred a Boy Scout leader in his uniform who stopped at a polling place “on his way to a troop meeting” during the 2012 election, since the “[p]residential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation.”

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Unsurprisingly, seven members of the court found this law could not withstand First Amendment scrutiny.

Roberts wrote that Minnesota’s “unmoored use of the term ‘political’” and its “haphazard interpretations” failed even that low bar.

He explained that Minnesota’s law placed far too much discretion in the hands of poll workers: “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.”

And Minnesota isn’t alone — at least nine other states have similar bans on political apparel, and news stories pop up frequently during election years about overzealous poll workers enforcing restrictions on speech.

For example, during the 2016 election, “Reagan/Bush” and “I miss Bill” T-shirts were prohibited in Arizona. In 2012, poll workers cracked down on people wearing MIT apparel (as in “Massachusetts Institute of Technology”) because Mitt Romney was on the ballot.

These bans reached apparel that conveyed political messages from another era as well as apparel that had nothing whatsoever to do with politics. It’s hard to see how any of these messages would have unduly influenced other voters casting their ballots.

The court’s ruling doesn’t mean voters should show up to the midterm elections in November with “Make America Great Again” hats and other T-shirts, buttons and items celebrating certain candidates, parties or issues on the ballot.

Many states prohibit express advocacy by voters within polling places. Texas, for example, prohibits wearing apparel related to a candidate, measure or political party appearing on the ballot. And California bars apparel with the name, likeness or logo of a candidate or ballot measure.

Justice Sonia Sotomayor dissented, joined by Justice Stephen Breyer, arguing that the court should have sent the case to the Minnesota Supreme Court for interpretation of the state’s law, but the majority did not think that was necessary.

In fact, the majority pointed out that Minnesota had made this request for certification to state court only after more than seven years in federal court when the case reached the Supreme Court.

There was no reason to send the case to state court to construe a statute that plainly violates the First Amendment.

The Supreme Court was right to find that the First Amendment doesn’t stop at the doors to the polling place. This ruling is a win for all Americans.

Hans von Spakovsky is an authority on a wide range of issues — including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform — as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative.

Elizabeth Slattery writes about the proper role of the courts, judicial nominations and the Constitution as a legal fellow at The Heritage Foundation. She co-hosts SCOTUS101, a podcast about everything that’s happening at the Supreme Court.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by the owners of this website.