Supreme Court Weighs Political Apparel Bans at Polling Sites


With the 2018 election just months away, America’s courts have been asked to consider and reconsider every aspect of our democracy. From foreign meddling to paper ballot tracking, it seems no detail is too minute to challenge.

Now, the highest court in the country will consider a unique new electoral battleground: Political apparel at polling places.

In a Supreme Court amicus brief filed this month in the case of Minnesota Voters Alliance v. Mansky, the State and Local Legal Center (SLLC) argued that states and local governments should be able to ban political apparel at polling places. In the case, county election officials and the Minnesota Secretary of State were sued for violating the First Amendment.

At least seven other states (Delaware, Kansas, Montana, New York, South Carolina, Tennessee, Texas, and Vermont) have enacted similar bans along with Minnesota.

Andrew Cilek was temporarily prevented from voting for wearing two items of political apparel: a t-shirt that stated “Don’t Tread on Me,” with a picture of the Gadsden Flag and a small Tea Party logo, and an Election Integrity Watch (EIW) button that stated “Please I.D. Me” with EIW’s website and phone number.

The Eighth Circuit held that Minnesota’s law is constitutional, citing Burson v. Freeman (1992). In that case, the Supreme Court upheld a Tennessee statute that banned the solicitation of votes and campaign materials within 100 feet of the polling place.

The Minnesota Voters Alliance argues the statute is unconstitutionally overbroad — describing it as having a “breathtaking reach” that criminalizes “all political speech that can be communicated through shirts, hats, buttons, and other apparel,” even though that speech assertedly “imposes no demands or burdens on others.”

The SLLC amicus brief responds to the other side’s arguments head-on. “Far from marking out a ‘breathtaking’ scope, Minnesota’s statute addresses speech in only one very limited and specialized location: the polling place. The law is directed at a type of display that threatens to interfere with the right of voters to cast their ballots freely, without intimidation or disruption. And it states a reasonable rule that has been applied by numerous States — without challenge or, for all that appears, any significant limitation on political debate — for over a century.”

Charles Rothfeld, Andrew Pincus, Michael Kimberly, and Paul Hughes of Mayer Brown and Eugene Fidell of the Yale Supreme Court Clinic wrote the SLLC amicus brief, which was joined by the National League of Cities, the National Association of Counties, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

photo - Lisa Soronen
photo - Lisa Soronen
Executive Director, State & Local Legal Center
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