Justices Weigh Case on Speech at Polling Places, With Several School Wrinkles

By Mark Walsh — February 28, 2018 5 min read
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The U.S. Supreme Court on Wednesday took up a Minnesota law that bans political buttons and apparel at polling places, with a lively oral argument that touched on the court’s landmark Tinker decision on student speech, coordinated political displays by teachers, and whether a “Parkland Strong” shirt would run afoul of the restrictions.

The case of Minnesota Voters Alliance v. Mansky (No. 16-1435) might be of interest to educators on a couple of levels. One is the practical fact that school facilities remain a popular choice for polling places, even amid security concerns that have led officials to choose other sites or to keep students home on Election Day.

On another level, the case could have a broader impact on First Amendment free speech jurisprudence, including in areas such as student speech or adult speech at school events.

“This court has never upheld a prohibition this broad ... even on a military reservation, in an airport, in a school,” said J. David Breemer, a lawyer with the Pacific Legal Foundation representing the Minnesota Voters Alliance, a group that sought to wear shirts promoting the “tea party” movement and buttons reading “Please I.D. Me,” which were part of a push for election integrity.

‘Peace, Order, and Decorum’

The Minnesota law at issue says that “a political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” In 2010, state and local election officials issued a policy to guide enforcement of the law, which included several examples of political apparel that would be prohibited.

These included items with party or candidate names, but also items about ballot questions, issue-oriented material (such as the “Please I.D. Me” buttons), and material promoting a group with recognizable political views, such as the tea party or

Andy Cilek, the executive director of the Minnesota Voters Alliance, in 2010 was asked to cover or remove a tea party shirt featuring the message “Don’t Tread on Me.” He refused. He was able to vote while wearing the shirt later that day, but an election official recorded his name for possible prosecution under the state law.

Two lower federal courts upheld the state’s restrictions, with the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruling that they constitutionally advances the state’s interest in “peace, order, and decorum” at polling places.

Daniel P. Rogan, a lawyer with the Hennepin County, Minn., attorney’s office defending the state law, told the justices that the restrictions not only preserve peace and decorum but help prevent voter confusion and intimidation.

“This court has recognized that ensuring the integrity of our electoral process and protecting the fundamental right to vote are government interests of the highest order and that laws advancing these important interests may constitutionally limit speech,” Rogan said.

He quickly ran into trouble with some justices.

“It does reach quite a bit beyond what I think a reasonable observer would think is necessary,” Chief Justice John G. Roberts Jr. told Rogan. “Do you really think if someone has a shirt with the tiniest little logo or inscription here that that’s going to have any effect on decorum?”

Justice Samuel A. Alito Jr. was dubious of the state’s targeting of “political” apparel at polling places.

“The problem is that so many things have political connotations, and the connotations are in the eye of the beholder,” Alito said. He hit Rogan with a string of examples, asking whether each would run afoul of the restrictions.

“How about a shirt with a rainbow flag?” Alito said. “Would that be permitted?” Rogan said yes, unless there was a gay rights issue on the ballot.

“How about a shirt that says ‘Parkland Strong’?” Alito asked, referring to the recent mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla.

Rogan said that would be allowed, “I think.”

“Even though gun control would very likely be an issue?” Alito responded. “I bet some candidate would raise an issue about gun control.”

He also asked about National Rifle Association shirts and a shirt with the text of the Second Amendment. Rogan suggested those would not be allowed.

“How about the First Amendment?” Alito said. Such a shirt would be allowed, Rogan said.

The Minnesota system is “an invitation for arbitrary enforcement that’s not even-handed,” Alito said. “And I have no idea where the line lies.”

Meanwhile, Roberts asked Breemer whether the state could target “coordination” by “a big employer, the union, teachers, whatever, [saying] we’re all going to show up and we’re all going to have, you know, these buttons on or whatever.”

“It’s subtle psychological pressure,” the chief justice said.

Breemer said the state could deal with such examples on a case-by-case basis under provisions barring voter intimidation.

Some justices were more clearly sympathetic to the state’s restrictions.

Justice Stephen G. Breyer said he thought the Founding Fathers meant for there to be some “thought and reflection” in the democratic process.

And the state is saying “we want to carve out 100 feet where this decision is going to be made and say to the person making it: Think,” Breyer said.

Justice Sonia Sotomayor said, “Why can’t the state reasonably draw the line at saying political speech of any kind can be potentially intimidating in a voting place and we won’t permit it?”

Breemer replied: “The reason is that the First Amendment ... continues to apply in polling places.”

Both during oral argument and in his brief, Breemer cited Tinker v. Des Moines Independent Community School District, the Supreme Court’s 1969 decision upholding the right of students to wear black armbands at school to protest the Vietnam War as long as school wasn’t disrupted.

“Expressive clothing plays an important role in American political discourse,” Breemer wrote in the brief.

A Presidential Panel

Though the use of schools as polling places is not in itself an issue in the Minnesota case, the string of school shootings over the last 20 years as well as concerns about terrorism and child predators have prompted some policymakers to rethink the tradition.

In 2014, the Presidential Commission on Election Administration, a body established by an executive order of President Barack Obama, recommended “that all states review their laws and contemporary practices within their jurisdictions to ensure the continued and future use of schools as polling places.”

Some state or district policies require that schools not be open for students on days when the school is being used as a polling place. But some advocates have argued for keeping schools used for elections open to students as a symbol of democracy.

A decision in the Minnesota case is expected by June.

A version of this news article first appeared in The School Law Blog.