The Supreme Court will determine whether states can ban voters from wearing politically themed clothing.
When voters venture to local polling place, must they temporarily forfeit their constitutionally-guaranteed right to express their political beliefs? Federal courts around the country remain divided, but the U.S. Supreme Court will weigh in on the question by the end of this term.
The Supreme Court recently heard oral arguments in a case challenging the constitutionality of a Minnesota election law that prohibits voters from wearing “political badges, political buttons, or other political insignia” at or near polling places so that Minnesotans can vote in a distraction-free environment. The Court is considering whether the law violates Minnesota voters’ First Amendment right of free speech.
The case grows out of many twists and turns in the court system. Its origins begin with a lawsuit filed just days before the 2010 off-year congressional election. The Minnesota Voters Alliance asked a federal judge for a temporary restraining order to prevent the state and its counties from enforcing the state’s ban. The groups argued that the state law would prohibit their members from wearing clothing with Tea Party messages such as “Don’t Tread on Me” at polling places, in violation of their free speech rights. The judge did not find the groups’ legal argument convincing, declined to grant the order, and allowed the government to enforce the law.
Despite the adverse ruling, Andy Cilek, the Executive Director of Minnesota Voter’s Alliance, and the Alliance’s other members attempted to vote while wearing their politically themed clothing. Election judges at Cilek’s polling place twice prevented him from voting, causing him to wait several hours before he could cast a vote. Cilek’s colleagues experienced similar obstacles, including warnings of prosecution, for refusing to remove or cover their politically themed clothing.
Consequently, Cilek and others filed another lawsuit in federal district court. This time, they argued both that the law itself and its enforcement against them had violated their First Amendment rights by wrongfully prohibiting their ability to wear clothing of their choice.
The judge in their case recognized that the First Amendment generally protects political speech. The legal standard that applies, however, depends on where the restriction occurs. In “nonpublic fora”—places neither traditionally open to the public nor devoted to assembly or debate—the Court has previously ruled that the government may restrict political speech if the restrictions “are viewpoint neutral and reasonable in light of the purposes served by the forum.”
All parties in the district court litigation agreed that polling places constituted nonpublic fora. And the judge found that the law satisfied the necessary criteria. First, the law did not discriminate by viewpoint, since it applied to all buttons and shirts, irrespective of message. Second, relying on long-standing case law, the judge deemed the law reasonable because it bore a reasonable relationship to Minnesota’s “well-established, legitimate interest in providing a safe, orderly, advocacy-free polling place.” By prohibiting clothing with political messages or insignia at polling places, Minnesota took a permissible step to protect the integrity of those areas, the judge concluded.
Cilek and others appealed their case to a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit. There, two judges agreed with the district court judge, affirming the law’s viewpoint neutrality and its reasonableness in relation to the state’s interest in providing a well-ordered polling place. The majority also found that the Minnesota law bore resemblance to a Tennessee law in an older case that passed constitutional muster.
The one dissenting judge argued that his colleagues could not use that older case as precedent because the law in that case banned only campaign materials from polling places, not clothing. He further wrote that Minnesota’s broad prohibition on politically themed clothing “unrelated to an issue or candidate on the ballot” could neither reasonably help Minnesota achieve an orderly polling place nor prevent undue influence on voters. According to the dissenting judge, in the absence of specific facts suggesting that voters wearing political clothing disrupted polling place activities, Minnesota’s restriction could not coexist with First Amendment freedoms.
Cilek petitioned the Supreme Court for review, but the Court initially declined to hear the case. Instead, it returned the case to the district court on procedural grounds to determine if the law, as applied to Cilek and others, actually violated their First Amendment rights. The district court judge ruled it did not, finding, as in the earlier round of litigation, that the prohibition on politically themed apparel at the polling place bore a reasonable relationship to preserving the sanctity of Minnesota’s elections.
A different three-judge panel of the Eighth Circuit unanimously affirmed the lower court’s opinion. “Even if Tea Party apparel is not election-related, to ensure a neutral, influence-free polling place, all political material is banned,” the appellate panel wrote.
Cilek and his co-challengers again requested Supreme Court review. This time, the Court agreed to hear their case. In its order granting review, the Court wrote that it would only review the constitutionality of the Minnesota law on its face, not as it was applied to Cilek and his colleagues during the 2010 election.
Since the Supreme Court chooses to review only a handful of cases each year, the Court may have accepted the challengers’ case because it presented an important opportunity to alter or clarify its previous First Amendment holdings. If the Court ends up ruling in favor of Cilek and his co-challengers and declares the law unconstitutional, it could impact nine other states with similar laws.
The Court heard oral arguments on February 28.
