By Lisa Soronen

A state can prevent voters from campaigning via written materials at a polling place but what about by apparel?

In Minnesota Voters Alliance v. Mansky, the U.S. Supreme Court will decide whether banning political apparel at polling places violates the First Amendment. At least eight states—Delaware, Kansas, Montana, New York, South Carolina, Tennessee, Texas and Vermont—other than Minnesota have enacted similar bans.

Andrew Cilek was temporarily prevented from voting for wearing two items of political apparel: a T-shirt that stated “Don’t Tread on Me,” with a picture of the Gadsden Flag and a small Tea Party logo; and an Election Integrity Watch (EIW) button that stated “Please I.D. Me” with EIW’s website and phone number.

The 8th U.S. Circuit Court of Appeals held that Minnesota’s law is constitutional, citing Burson v. Freeman (1992). In that case the Supreme Court upheld a Tennessee statute that banned the “solicitation of votes” and “campaign materials” within 100 feet of the polling place.

The Minnesota Voters Alliance argues that Minnesota’s statute is unconstitutionally overbroad because it stretches the reasoning of Burson too far. “Burson plainly does not endorse a categorical ban on all types of ‘political’ speech. The decision below departs from this court’s precedent on First Amendment overbreadth and effectively chills the free speech rights of millions of voters across the country by threatening criminal prosecution or civil penalties for voters who wear logoed T-shirts, caps, jackets, buttons and other apparel in state-declared speech-free zones.”

The lower courts have disagreed about the constitutionality of apparel bans at polling places. The 5th U.S. Circuit Court of Appeals upheld Louisiana’s ban; a federal district court struck down Arizona’s law and the Oregon Court of Appeals struck down Oregon’s law.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.