It’s OK to Ban Voters from Wearing 2nd Amendment T-Shirts at the Polls, Minnesota Tells SCOTUS

The U.S. Supreme Court heard oral arguments today in a case that asks whether Minnesota violated the First Amendment when it banned voters from wearing a vast array of political badges, buttons, insignias, and other attire at polling places. Facing sharp questioning this morning from the justices, the state’s lawyer admitted that the law could even be used to ban t-shirts featuring the text of the Second Amendment or the pro-gay rights rainbow flag.

The case is Minnesota Voters Alliance v. Mansky. It originated in 2010 when Andrew Cilek, the executive director of the conservative group Minnesota Voters Alliance, tried to vote while wearing a t-shirt adorned with an image of the Gadsen Flag, the phrase “Don’t Tread on Me,” and a Tea Party Patriots logo. Cilek was also wearing a “Please I.D. Me” button from the conservative group Election Integrity Watch.

J. David Breemer, the lawyer representing the Minnesota Voters Alliance in its constitutional challenge, told the justices that the statute should be struck down for being unconstitutionally overbroad because it prohibits bedrock forms of expression that have nothing to do with any candidate, campaign, or party, such as “shirts that simply say AFL-CIO, Chamber of Commerce, [or] NAACP.” The law “seeks to silence so much peaceful conventional messaging by the blunt means of—of outlawing everything,” he argued.

Daniel Rogan, the lawyer representing Minnesota elections official Joe Mansky, did not exactly do a winning job of countering Breemer’s claim. In fact, Rogan all but conceded that the state law is indeed an arbitrary violation of the Constitution, as evinced by this revealing exchange he had with Justice Samuel Alito:

Justice Alito: How about a shirt with a rainbow flag? Would that be permitted?

Mr. Rogan: A shirt with a rainbow flag? No, it would be—yes, it would be—it would be permitted unless there was—unless there was an issue on the ballot that—that related somehow to—to gay rights….

Justice Alito: Okay. How about an NRA shirt?

Mr. Rogan: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication—and I think what you’re getting at, Your Honor—

Justice Alito: How about a shirt with the text of the Second Amendment?

Mr. Rogan: Your Honor, I—I—I think that that could be viewed as political, that that—that would be—that would be —

Justice Alito: How about the First Amendment?

(Laughter.)

There you have it. Minnesota’s lawyer was forced to admit that this sweeping law allows the state to forbid voters from wearing t-shirts at polling places that feature an excerpt from the Bill of Rights. If that’s not an overreaching restriction on constitutionally protected speech, what is?