A dress code for polling places? Supreme Court to decide constitutionality

A dress code for polling places? Supreme Court to decide constitutionality
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Could a poll worker stop you from wearing any t-shirt that expresses a certain viewpoint?

That’s the fundamental question at stake in a court case testing a Minnesota state law that polices what you are allowed wear in a polling place when exercising your right to vote.

Any day now, justices will decide whether polling places can be both a vital forum for the exercise of personal liberty and at the same time a place where free speech rights are respected.

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Minnesota outlaws any t-shirts, buttons, caps, or other apparel containing “political” content at the polling place. The problem, of course, is that “political” frequently is in the eye of the beholder — in this case, on-site volunteer “election judges”— and the law is enforced at the election judges’ whim. A voter who runs afoul of this overly broad law could face prosecution and civil fines up to $5,000.

 

The law forbids Minnesota voters from wearing any design, logo or slogan with even the slightest hint of a political connotation, even if the slogan has absolutely nothing to do with a candidate or ballot issue. The state declared that even messages of a general social or philosophical point of view, such as the logos of the American Civil Liberties Union or the Chamber of Commerce, are out of bounds.

In November 2010, an election judge prevented Minnesota resident Andy Cilek from voting for five hours because of the messages on his clothing. Cilek was wearing a t-shirt bearing the iconic Gadsden Flag as a symbol of limited government, with its coiled snake and the warning to British forces, “Don’t tread on me.” He also wore a pin reading “Please I.D. Me,” to raise awareness about voting fraud.

Even though neither message was associated with any issue before the voters that election day, the state-empowered election judge ordered Cilek to remove his shirt and button, or cover them up. Cilek strongly objected to this violation of his First Amendment right to express his views, and five hours later, he finally was permitted to vote. But the election judge recorded his name for possible prosecution.

Cilek, who is the executive director of the Minnesota Voters Alliance, responded by filing a constitutional challenge to the state’s dress code for voters. He was joined by Sue Jeffers, a former election judge who also objects to the law’s unconstitutional constraints on voter expression.

Last November, the Supreme Court agreed to review the Minnesota statute after the Eighth Circuit Court of Appeals upheld the law in a split decision. The majority on that panel upheld the political apparel ban as a reasonable safeguard against subjecting voters to polling-place intimidation or lobbying by campaign activists.

That decision was based on a 1992 Supreme Court case that upheld Tennessee’s ban on political campaigning. The court held that Tennessee’s statute allows states to forbid campaigning or electioneering at polling places. It does not, however, ban all speech that someone might decide has a political connotation.

Eighth Circuit Judge Bobby Shepherd’s dissent recognized this distinction, solidly grounded in First Amendment law that bans “overbroad” limits on speech. Judge Shepherd pointed out that Minnesota’s restrictions reach too far, potentially barring voters from wearing the logos of non-political organization such as the NAACP, Veterans of Foreign Wars, the American Legion, and many others. It is our hope and expectation that the Supreme Court will share Judge Shepherd’s perspective and move to protect Minnesota voters’ constitutional right to free expression.

During oral argument in February to determine if the court would strike down the Minnesota law, the justices posed a series of probing and challenging questions to evaluate the legal issues at stake. Justice Samuel Alito cut to the heart of the case with his questions centered around whether the breadth of the Minnesota law would enable discrimination based on political viewpoints.

“The problem is that so many things have political connotations, and the connotations are in the eye of the beholder,” Alito said. “And on election day, you’re going to have hundreds, maybe thousands of officials in Minnesota, and every one of them probably thinks that he or she is the reasonable observer, and they’re making a determination about whether something has political connotations.”

Alito’s observation is a concise summation of why the Minnesota law is an attack on free speech. Whenever politicians and bureaucrats are tempted to put their own convenience or agenda over the First Amendment’s protection of core rights of expression, they need to be dressed down. The Supreme Court’s forthcoming decision should do just that.

Wen Fa and Deborah J. La Fetra are attorneys with Pacific Legal Foundation, a nonprofit organization that defends individual liberty and represents the Minnesota Voters Alliance petitioners free of charge. The authors are among attorneys handling the case.