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Posted on Monday, July 02, 2018

The Right to Wear T-Shirts of Any Political Stripe

Minnesota Voters Alliance, et al. v. Mansky, ___ U.S. ___, No. 16-1435 (14 June 2018)

Voting today is much different than during the early years of the republic.  Back then there was no secret ballot.  On election day, voters gathered at the polling place.  Candidates gave speeches and cajoled voters.  In that era, Americans drank enormous amounts of alcohol (yes, even more than today), and the bottle and the jug were passed around, not infrequently resulting in alcohol-fueled, partisan donnybrooks.

There were no official ballots.  Voters typically used privately prepared ballots.  Newspapers printed ballots which voters could tear out and bring with them to the polling place, and political parties distributed party ballots for voters’ use.  There were two items that the election official supplied — scissors and paste.  If a voter wanted to split his vote among candidates for different parties, he would snip out the name of the favored candidate from one party’s ballot and paste it over the name of the disfavored candidate on the ballot that he submitted to the voting official.  The polling place often consisted of a “voting window” in the side of a building through which the voter would hand his ballot to an election official inside a room with the ballot box.  The scene outside the room was often raucous and disorderly.  Under the informal conventions of the period, election etiquette required only that a “man of ordinary courage” be able to make his way to the voting window.

By the early 1890s, every State had adopted the secret ballot.  Because voters now needed to mark a state-printed ballot on-site and in secret, voting moved to a sequestered space where voters could deliberate and make a decision in privacy.  In addition, States enacted viewpoint-neutral restrictions on election-day speech in the immediate vicinity of the polls.

Minnesota has had such a law for many years.  Minnesota’s law has three prohibitions: (i) no campaigning or campaign material within 100 feet of the polling place; (ii) no distribution of “political” buttons, badges or insignia at or about the polling place; and (iii) a ban on “political apparel” stating that “political” buttons, badges and insignia may not be worn at or about the polling place.  Minnesota election judges have the authority to decide whether a particular item falls with the political apparel ban.

The Minnesota Voters Alliance and other like-minded groups and individuals filed a lawsuit in federal court challenging the political apparel ban.  One group intended to wear buttons with the words “Please I.D. Me.”  (Minnesota law does not require voters to show identification.)  Other plaintiffs intended to wear shirts with the words “Tea Party Patriots” or “Don’t Tread on Me.”  The district court denied a temporary restraining order and a preliminary injunction and allowed the apparel ban to remain in effect for the forthcoming election.  The court of appeals affirmed.

In response to the lawsuit, Minnesota’s secretary of state issued a policy statement with examples of apparel falling within the apparel ban.

  • Any item including the name of a political party in Minnesota.
  • Any item including the name of a candidate at any election.
  • Any item in support of or opposition to a ballot question at any election.
  • Issue-oriented material designed to influence or impact voting.
  • Material promoting a group with recognizable political views.

Minnesota’s ban on political apparel applies only at or about a polling place, which is government-controlled property at the time of voting.  The Supreme Court has used a “forum based approach” for assessing restrictions that the government places on speech on its property.  International Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).  Generally, the cases recognize three types of government-controlled space: traditional public forums, designated public forums, and nonpublic forums.  In a traditional public forum — parks, streets, sidewalks – restrictions based on the content of speech must survive strict scrutiny, and restrictions based on viewpoint are prohibited.  The same standard applies to designated public space that has not been traditionally regarded as a public forum but which the government has opened up for that purpose.

In a nonpublic forum, on the other hand, the government has more flexibility in limiting speech.  The government may impose some content-based restrictions on speech in nonpublic forums, including restrictions that exclude advocates and forms of political advocacy.  Cornelius v. NAACP Legal Defense Ed. Fund, Inc., 473 U.S. 788, 799-800 (1985).  The government may reserve such a forum “for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s viewpoint.” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46 (1983).

A polling place in Minnesota qualifies as a nonpublic forum, and the State can regulate speech at and around the polling place, provided that the regulation is reasonable and not to suppress expression because of official opposition to the speaker’s viewpoint.  However, even though the regulation of speech in a nonpublic forum need not be narrowly tailored to achieve the purpose of the nonpublic forum, the State must be able to “articulate some sensible basis” for distinguishing what speech is allowed and what speech is not allowed.  In the instant case, the unmoored use of the term “political” in Minnesota’s statute, combined with the vagueness of the State’s policy guidance, fails to articulate a sensible basis for distinguishing allowed from disallowed speech.

Referring to the five items in the State’s policy statement, the Court had no problem with the first three items.  But the fourth item – “issue oriented material designed to influence or impact voting” – raises more questions than it answers.  How is an election judge to make that determination?  The Court said that “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 Court said that the next broad category – any item “promoting a group with recognizable political views” – makes matters worse.  Any number of associations, educational institutions, businesses, and religious organizations could have opinions on issues confronting voters in a given election.  For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern.  If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned?

At oral argument, Minnesota’s lawyer struggled to explain what this category allowed and did not allow.  He told the Court that a shirt declaring “All Lives Matter,” could be “perceived” as political.  A shirt bearing the name of the National Rifle Association would definitely not be allowed.  A shirt displaying a rainbow flag could be worn “unless there was an issue on the ballot” that “related somehow to gay rights.”  A shirt simply displaying the text of the Second Amendment would be prohibited, but a shirt with the text of the First Amendment would be allowed.

This was all too vague and uncertain for the Court.  The Court reiterated its statement in Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, 482 U.S. 569, 576 (1987), that it is self-evident that an indeterminant prohibition carries with it the opportunity for abuse, especially where it has received virtually open-ended interpretation.  Minnesota’s law fails to satisfy First Amendment standards.

The Court reversed and remanded in an opinion authored by Chief Justice Roberts.  Justices Sotomayor and Breyer dissented.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.