High Court Strikes Down Ban on Political Attire at Polls

In this Feb. 16, 2018, photo, Andrew Cilek poses with a Tea Party shirt at his home in Eden Prairie, Minn. Cilek was one of two voters who defied elections officials after he was asked to cover up a tea-party shirt and button. The U.S. Supreme Court has struck down a Minnesota law that restricted what voters can wear to polls.  (AP Photo/Jim Mone, File)

(CN) – The Supreme Court ruled 7-2 Thursday that a Minnesota law barring voters from wearing political clothing at polling sites violates the First Amendment.

Minnesota Voters Alliance filed suit over the law alongside its executive director, Andrew Cilek. In 2010, Cilek arrived at his Hennepin County polling place to vote while sporting a T-shirt emblazoned with slogan “Don’t Tread on Me” and the Gadsden Flag, a bright yellow banner with a coiled rattlesnake that has become an unofficial logo of the Tea Party.

Minnesota does not have a voter ID law, but Cilek had also tacked a button to his shirt with the words “Please I.D. Me.”

It took three tries, and when Cilek did manage to cast a ballot, an election judge recorded his name to potentially have him prosecuted for violations of Minnesota’s ban against political insignia at a polling place.

Though confirmed violations of the law carry a $5,000 fine, neither Cilek nor other members of his group who wore Tea Party shirts to vote in 2010 faced this punishment.

Minnesota Statute § 211B.11 prohibits wearing a “political badge, political button, or other political insignia . . . at or about the polling place on primary or election day.”

State election officials issued a policy citing examples of political apparel, including “issue oriented material designed to influence or impact voting” and “material promoting a group with recognizable political views.”

Voters who refused to remove political clothing are still allowed to vote, but election officials were told to record their name and address for potential misdemeanor prosecution.

Minnesota Voters Alliance claims the law violates the First Amendment and equal-protection rights due to selective enforcement.

A federal judge in Minnesota ruled for the state, granting summary judgment on the voter groups’ as-applied First Amendment claim after previously dismissing their equal protection and facial First Amendment claims.

The Eighth Circuit affirmed last year, finding the law “viewpoint neutral and facially reasonable.”

At oral arguments in February, Justice Samuel Alito showed little esteem for the Minnesota law.

Peppering the state’s attorney with several hypotheticals, Alito struggled to find consistency in why the law would force one voter to cover up a shirt with the text of the Second Amendment, but allow another to wear a shirt that read “Parkland Strong.” After the recent mass shooting at Stoneman Douglas High School in South Florida, the latter slogan has taken off among proponents of gun control.

One of Alito’s hypothetical voters wore a rainbow flag shirt, while another sported a Colin Kaepernick jersey, and a third donned an “All Lives Matter” shirt. The justice voiced frustration at the February hearing as Daniel Rogan, an assistant attorney for Minnesota’s Hennepin County, gave each of the imagined voters different odds at successfully casting a ballot.

“It’s an invitation for arbitrary enforcement and enforcement that’s not even-handed,” Alito said of the law. “And I have no idea where the line lies.”

In a 7-2 decision, the Supreme Court ruled Thursday that the ban on political clothing violates the free-speech clause of the First Amendment.

Chief Justice John Roberts delivered the majority’s opinion, writing that “Minnesota has not supported its good intentions with a law capable of reasoned application.”

“In light of the special purpose of the polling place itself, Minnesota may choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand,” Roberts wrote. “But the state must draw a reasonable line.”

He continued, “Here, the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the state has provided in official guidance and representations to this court, cause Minnesota’s restriction to fail even this for­giving test.”

Roberts noted that the word “political” is expansive and can include anything relating to the government.

“If a state wishes to set its polling places apart as areas free of parti­san discord, it must employ a more discernible approach than the one Minnesota has offered here,” he wrote.

Justice Sonia Sotomayor dissented and was joined by Justice Stephen Breyer. She said that she would send the case to the Minnesota Supreme Court “for a definitive interpretation of the political apparel ban… which likely would obviate the hypothetical line-drawing problems that form the basis of the court’s decision today.”

“Especially where there are undisputedly many constitu­tional applications of a state law that further weighty state interests, the court should be wary of invalidating a law without giving the state’s highest court an opportunity to pass upon it,” Sotomayor wrote.

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