Supreme Court Strikes Minnesota Law Barring Political Apparel at Polling Places

By Mark Walsh — June 14, 2018 3 min read


The U.S. Supreme Court on Thursday struck down Minnesota’s prohibition on political apparel at polling places, in a case that implicates free speech principles affecting students and educators.

Writing for a 7-2 court in Minnesota Voters Alliance v. Mansky, Chief Justice John G. Roberts Jr. said that a state pursues a “permissible objective” under the First Amendment when it seeks to exclude some political buttons or shirts at polling places, “so that voters may focus on the important decisions immediately at hand.”

But Minnesota’s restriction, which says a political badge, button, or insignia may not be worn at or around the polling place, “plainly restricts a form of expression within the protection of the First Amendment,” Roberts said.

He pointed to state guidelines that provide examples of what is barred. Roberts said some are “clear enough,” such as items with the name of a political party, the name of a candidate, or demonstrating a position on a ballot question. But the guidelines also suggest that “issue-oriented material designed to influence or impact voting” would run afoul of the law.

The state suggested at oral argument that an “issue” could cover any subject on which a political candidate or party has taken a stance.

“A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable,” the chief justice said.

He was also troubled by a guideline which would bar any item promoting a group with recognizable political views.

“Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an ‘issue[] confronting voters in a given election,’” Roberts said.

He cited some of the “riddles” that came up during oral argument, such as the state’s assertion that a shirt that said “All Lives Matter” could be perceived as political, and that a shirt with the text of the Second Amendment would be political if a gun control measure were on the ballot, but a First Amendment shirt would be OK.

At the Feb. 28 oral argument, the justices offered other education-related hypotheticals, such as a “Parkland Strong” shirt or the idea of all members of the teachers’ union wearing the same color shirt on election day to demonstrate solidarity. A lawyer representing the state said he thought the shirt referring to a school shooting would be allowed, and that the solidarity shirts would have to be evaluated.

In his opinion, Roberts said the court’s rulings have noted the “‘nondisruptive’ nature of expressive apparel in more mundane settings,” including schools. He cited the court’s 1969 decision in Tinker v. Des Moines Independent Community School District, which upheld students who wore black armbands in a peaceful protest against the Vietnam War.

In contrast, “casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation,” Roberts said. “It is a time for choosing, not campaigning.”

But the states “must employ a more discernible approach than the one Minnesota has offered here,” he said.

Roberts’s opinion was joined by Justices Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr., Elena Kagan, and Neil M. Gorsuch.

Justice Sonia Sotomayor, in a dissent joined by Justice Stephen G. Breyer, said she would certify the case to the Minnesota Supreme Court for a more definitive interpretation of the political apparel ban.

Sotomayor said that in holding that restrictions must be reasonable, “the court goes a long way in preserving states’ discretion to determine what measures are appropriate to further important interests in maintaining order and decorum, preventing confusion and intimidation, and protecting the integrity of the voting process.”

The opinions did not discuss the particular use of schools as polling places, which anecdotal evidence suggests has declined in recent years because of safety concerns.

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

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