SCOTUS Strikes Minnesota Ban on Political Shirts and Buttons at Polls

Specific Campaign Materials Still Verboten at Minnesota and South Dakota Election Sites

The United States Supreme Court ruled this morning that Minnesota’s law banning political buttons, badges, and apparel from polling places violates the First Amendment.

The Minnesota statute in question, 211B.11(1), imposes the following restrictions on what Minnesotans (and visitors) can do in and around places where citizens are voting:

A person may not display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situated, or anywhere on the public property on which a polling place is situated, on primary or election day to vote for or refrain from voting for a candidate or ballot question. A person may not provide political badges, political buttons, or other political insignia to be worn at or about the polling place on the day of a primary or election. A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day. This section applies to areas established by the county auditor or municipal clerk for absentee voting as provided in chapter 203B.

Nothing in this subdivision prohibits the distribution of “I VOTED” stickers as provided in section 204B.49 [Minnesota Statute 211B.11(1), retrieved 2018.06.14].

Two Tea Party activists tested this statute by wearing a Tea Party ‘Don’t Tread on Me” t-shirt and a “Please I.D. Me” button in protest of Minnesota’s polling place rules. Poll workers demanded that they cover up or remove those political items. One of the activists took Minnesota to court. Today, the court agreed with the activist.

In the 7–2 opinion to Minnesota Voters Alliance v. Mansky, Chief Justice John Roberts says that states can restrict certain political apparel and other activity at the polls. Citing the 1992 Burson v. Freeman ruling that affirmed speech restrictions within 100 feet of the entrance of a polling place, Chief Justice Roberts said “a campaign-free zone outside the polls was necessary to secure the advantages of the secret ballot and protect the right to vote.” He accepts the argument from Minnesota that a polling place should be “an island of calm in which voters can peacefully contemplate their choices.”

The problem for Minnesota is that its statute doesn’t narrowly define the “political” messages it needs to prevent from disrupting voters’ peaceful contemplation:

The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such 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 next broad category in the Election Day Policy—any item “promoting a group with recognizable political views”—makes matters worse. The State does not confine that category to groups that have endorsed a candidate or taken a position on a ballot question. As a result, any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue confronting voters.” The State represents that the ban is limited to apparel promoting groups with “well-known” political positions. But that requirement only increases the potential for erratic application, as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it [Chief Justice John Roberts, syllabus to ruling, Minnesota Voters Alliance v. Mansky, 2018.06.14, pp. 3–4].

How might this ruling affect South Dakota’s similar ban on electioneering and other distracting activity near the polls. Let’s check SDCL 12-18-3:

Except for sample ballots and materials and supplies necessary for the conduct of the election, no person may, in any polling place or within or on any building in which a polling place is located or within one hundred feet from any entrance leading into a polling place, maintain a campaign office or public address system, or use any communication or photographic device in a manner which repeatedly distracts, interrupts, or intimidates any voter or election worker, or display campaign posters, signs, or other campaign materials or by any like means solicit any votes for or against any person or political party or position on a question submitted or which may be submitted. No person may engage in any practice which interferes with the voter’s free access to the polls or disrupts the administration of the polling place, or conduct any petition signature gathering, on the day of an election, within one hundred feet of a polling place. For the purposes of this section, the term, polling place, means a designated place voters may go to vote on the day of the election or go to vote absentee. A violation of this section is a Class 2 misdemeanor [SDCL 12-18-3, retrieved 2018.06.14].

South Dakota’s ban appears to center on the term “campaign” rather than “political.” “Campaign posters, signs, or other campaign materials” appears to focus the restriction on displays that “solicit any votes for or against” candidates, parties, or ballot questions. That portion of South Dakota’s ban on electioneering at the polls, like Minnesota’s, appears to still pass muster with the Roberts court. I can’t wear my “Heidelberger for Senate” button to the courthouse come election time or park my eye-catching campaign bike at the courthouse door. G. Mark Mickelson can’t march outside the courthouse on November 6 waving a sign that says, “Tax cigarettes and ban out-of-state money!”

But states cannot impose restrictions that require political analysis and judgment calls by election officials. For example, if a voter wears a button saying, “Support our public schools!” the county auditor can’t throw the voter out just because she thinks that statement is an implicit endorsement of Democratic candidates or because she has read that the Republican in the race voted to increase teacher pay. Today’s ruling says the guidelines for banning certain speech in and around polling places must be clearly and narrowly defined, apparently to focus on candidates and issues explicitly on the ballot.

p.s.: Still awaiting the Supreme Court’s ruling is South Dakota v. Wayfair, the big online sales tax case.