Do voters have a right to wear political garb at the polling booth?

By S.M. | NEW YORK

WHEN the justices hear Minnesota Voters Alliance v Mansky on February 28th, they will face a case that pits the freedom of speech against the right to vote. Clashing fundamental values make for interesting Supreme Court cases, and Mansky promises to be a lively discussion of a tussle between rights that ordinarily point in the same direction.

Since 1912, Minnesota has barred voters from donning a “political badge, political button or other political insignia” when entering a “polling place on primary or election day”. When Andre Cilek showed up to vote in 2010 wearing a t-shirt emblazoned with “Don’t Tread on Me” and images supporting the Tea Party, as well as a “Please ID Me” button (mocking those who oppose voter-ID laws), he faced resistance. Mr Cilek was turned away, twice, before finally persuading a reluctant election worker to let him vote. These strictures sanitising polling places of all political messages violate the First Amendment, the Minnesota Voters Alliance (founded by Mr Cilek) claims. Similar laws in other states have empowered election workers to clamp down on voters in rather comical ways. A Texas voter was halted in 2008 for wearing an “Alaska” t-shirt that, in the eyes of a poll worker, endorsed Sarah Palin, Alaska’s governor and the Republican candidate for vice president. Four years later, voters in Florida and Colorado were reprimanded for wearing “MIT” sweatshirts—poll workers unfamiliar with the Massachusetts Institute of Technology, and with the spelling of the Republican presidential candidate’s first name, thought they were promoting Mitt Romney.

Minnesota dismisses these examples, arguing that no reasonable poll-worker would bar voters based on such bone-headed misconceptions. The “only words and symbols” that face regulation under the law, the state insists, are those that an “objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in that polling place”. And there is Supreme Court precedent for limiting politicking at the polls. In 1992, in Burson v Freeman, the justices upheld a Tennessee law banning vote-solicitation and campaign-flyer distribution within 100 feet of a voting venue. If it is all right to do that, the state reasons, surely it’s acceptable to put limits on political communication inside a polling place.

Who is right? Both sides’ claims have merit, even if their briefs suffer from hyperbole. For Mr Cilek, Minnesota’s law entails a “breathtaking” restriction on speech that “suppresses perhaps the most peaceful method of political expression—the silent wearing of clothing and other apparel that conveys a political message, logo or group affiliation”. The state, in response, says the law is necessary to “protect Minnesotans’ right to vote” in “peaceful, orderly polling places unhampered by coercive, intimidating or disorderly conduct”. Preserving the “dignity of the polling place” instills public confidence in elections, which is “a critical component of our democracy”.

It is unlikely the salvation or demise of the republic hinges on Mansky turning out one way or the other. It may be irksome to keep your “I’m With Her” T-shirt or MAGA button under wraps while pulling the lever, but it’s hard to imagine these rules “chilling” speech once a voter bounces back outside. And, on the other side, it’s hard to imagine scenarios in which voters run screaming when encountering fellow voters quietly displaying those political messages on their clothing. So how are the justices likely to rule?

Some may favour Mr Cilek’s view, finding the restrictions overbroad, unnecessary restrictions on core political speech. But it seems likely other justices will choose to walk down the straightforward doctrinal path offered by the Eighth Circuit Court of Appeals, which upheld the Minnesota law in a terse seven-page ruling last year. Restrictions on speech must clear a low constitutional bar when imposed in a so-called “nonpublic forum”, a three-judge panel of the Eighth Circuit held. Since the express purpose of a polling place is to facilitate voting—not to foster debate and discussion—there is no need to vindicate a maximal conception of freedom of speech during the few moments voters spend filling out and turning in their ballots. As nonpublic forums, polling places may prohibit even silent political expression if the rules are, the Eighth Circuit wrote, “reasonable in light of the purpose which the forum at issue serves” and “viewpoint neutral”.

In other words, an election-day law cracking down on Ayn Rand acolytes while embracing voters clad in Green Party buttons would be a problem, but there may be no constitutional harm with ensuring “a neutral, influence-free polling place” where “all political material is banned”. No one doubts that freedom of speech is crucial in the public square in the run-up to elections; it is less clear that a law designed to maintain solemnity at the polls themselves chafes against the First Amendment.