Supreme Court Preview: Minnesota Electioneering Ban

WASHINGTON (CN) – The Supreme Court will consider Wednesday whether a Minnesota law that bars voters from wearing political clothing at poll sites treads on 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.

Cilek and his group’s claims brought their appeal to the Supreme Court last year after the Eighth Circuit affirmed dismissal of their case.

“There is no form of speech as protected as political speech and no medium of public expression that is as peaceful and unobtrusive as messages on clothing,” they argued in a Jan. 5 brief on the merits. “The First Amendment cannot tolerate a law that penalizes and deters all political expression communicated through clothing – even in polling places.”

Minnesota Voters Alliance argues that, even if the state has an interest in banning clothes like the ones its members wore, the law sweeps up an “astounding” amount of other speech.

Frederick Schauer, a law professor at the University of Virginia, offered insight into what’s at stake for the challengers.

Their argument, Schauer summarized in a phone interview, “is that, not only do we have standing to challenge this statute, we are worried because we don’t understand ourselves as being part of a political party, we understand ourselves as speakers and therefore we are afraid that this statute might be applied to activities other than electioneering in the strict sense.”

Minnesota Voters Alliance hammered on this by noting acknowledgment from the state that the law could prevent people from voting while wearing Minnesota Vikings shirts if there was some way to connect the team to an issue on the ballot, such as a provision on public funding for a new stadium.

The state argues meanwhile that the law is justified because polling places are not public forums, giving the government more freedom to restrict speech within them. Given that the law bans all types of political apparel in polling places, the state said it does not discriminate based on viewpoint.

“Minnesota’s limited prohibition is a reasonable restriction of speech in a quintessential nonpublic forum that protects the integrity of elections by preserving order and decorum in the polling place and preventing voter confusion and intimidation,” the state said in a Feb. 5 brief.

The concern for the state is that allowing political messages into the polling place could lead to confusion or even voter intimidation, jeopardizing the right to vote. This is especially true with the “Please I.D. Me” buttons, the state argued, saying such insignia could make people think the barriers to voting are higher than they actually are.

While the state spent a considerable portion of its brief discussing the forum issues, Schauer said he would not be surprised if the decision came down to whether Minnesota’s law constitutes an overly broad restriction of speech.

The court’s standards on overbreadth have changed over the years, and Schauer said which era’s interpretation the justices adopt could be decisive.

“One of the lurking issues here is will the court reaffirm that there have to be a substantial number of potentially unconstitutional applications in order for overbreadth doctrine to apply, or will it go back to where it was in the ’60s and ’70s, especially in the ’60s, and say it’s really problematic if there are these overbroad statutes and as long as its overbroad, it doesn’t have to be substantially overbroad,” Schauer said.

Possibly anticipating this outcome, Minnesota has asked that the case be sent back to the Minnesota Supreme Court if they do find the law overly broad.

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