By Lisa Soronen
Minnesota Voters Alliance v. Mansky probably presents the easiest to understand question before the Supreme Court for the entire term. But, as oral argument in this case illustrates, it will not be the easiest case for the Court to decide.
The question is whether a state may ban political apparel at polling places. The challengers argue the statutes violates the First Amendment Free Speech Clause because it is overbroad.
At least eight states (Delaware, Kansas, Montana, New York, South Carolina, Tennessee, Texas, and Vermont) other than Minnesota have enacted similar bans. Check out NCSL's page on electioneering apparel laws.
Andrew Cilek (pictured at left in front of the Supreme Court) 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.
At oral argument, very few of the justices seemed enthused about Minnesota’s statute for the reason cited by the attorney arguing for Minnesota Voters Alliance. The statute disallows a lot of speech at the polls which would otherwise be protected by the First Amendment.
A number of the justices seemed sympathetic of the notion that some political speech may intimidate voters or undermine the solemnness and decorum of the polling place. But the Alliance attorney had a difficult time articulating where the Court might draw the line of political speech that could versus could not be constitutionally banned at a polling place.
Justice Samuel Alito was the strongest critic of the statute. He focused on the difficulty of knowing when speech is political. He got the attorney arguing for the state and county elected officials to admit that under the Minnesota statute poll workers could ban a #METOO T-shirt but not voters wearing all white even though they would be conveying about the same message. Justice Elise Kagan joked that Minnesota should just make the statute broader. Everyone laughed.
Justice Neal Gorsuch asked the attorney defending the Minnesota statute to point to evidence that disruptions regularly occur at polling places in states without laws like Minnesota’s. The State and Local Legal Center (SLLC) amicus brief, which defends the Minnesota statute, points to significant evidence of disruption at the polls both historically and more recently. NCSL declined to join the SLLC brief.
The Supreme Court will issue an opinion in this case by the end of June 2018.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial matters.