SCOTUS Rules 7-2 Against State Law Banning ‘Political’ Attire at Polling Places

Today the U.S. Supreme Court struck down a sweeping Minnesota law that banned voters from wearing “political” badges, button, insignia, or attire inside polling places on election day. The ban applied to all apparel “designed to influence and impact voting” or “promoting a group with recognizable political views.” According to the majority opinion of Chief Justice John Roberts, “the First Amendment prohibits laws ‘abridging the freedom of speech.’ Minnesota’s ban on wearing any ‘political badge, political button, or other political insignia’ plainly restricts a form of expression within the protection of the First Amendment.”

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.

In other words, this case asked whether or not a state government may ban voters from wearing “Don’t Tread on Me” t-shirts at the polls. By a vote of 7-2, the Supreme Court held that the First Amendment trumps the state law.

Chief Justice Roberts’ majority opinion was joined by Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, and Elena Kagan.

Writing in dissent, Justice Sonia Sotomayor, joined by Justice Stephen Breyer, maintained that the Court should have avoided a constitutional ruling and instead turned the case over “to the Minnesota Supreme Court for a definitive interpretation of the political apparel ban.”

Sotomayor and Breyer wanted to save the law from total destruction. “Especially where there are undisputedly many constitutional applications of a state law that further weighty state interests,” Sotomayor wrote, “the Court should be wary of invalidating a law without giving the State’s highest court an opportunity to pass upon it.” Unfortunately for the two dissenters, the rest of the Court saw no reason to withhold final judgment.

The law’s demise comes as no surprise to me. During the February 28 oral arguments, the lawyer representing Minnesota elections official Joe Mansky admitted that the state could even ban voters from wearing t-shirts that feature nothing else but the text of the Second Amendment. His reasoning? The amendment’s language “could be viewed as political.”

“How about the First Amendment?” asked Justice Samuel Alito, prompting laughter in the courtroom. The law’s fate was pretty much sealed at that point. Banning voters from wearing First Amendment t-shirts would certainly seem to qualify as an overly broad restriction on freedom of speech.

In his ruling today, the chief justice stressed that constitutional failing. “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?” Roberts wrote. “What about a #MeToo shirt, referencing the movement to increase awareness of sexual harassment and assault? At oral argument, the State indicated that the ban would cover such an item if a candidate had ‘brought up’ the topic.”

In short, a far-reaching restriction on political expression was overruled by a strong majority of the Supreme Court. Minnesota Voters Alliance v. Mansky is an important win for First Amendment advocates.