If, come one fine Election Day, as a proud Star Tribune employee, I was to don one of our stylish Star Tribune T-shirts (available at shop.startribune.com/category/apparel/) — and if I then was to stride so attired into my polling place — could I be breaking the law?
Sounds unlikely ... and yet. The U.S. Supreme Court last week agreed to hear a Minnesota free speech case — Minnesota Voters Alliance vs Mansky — challenging a state statute that, if enforced strictly and even-handedly, might make such an implausible state of affairs conceivable.
Given the current high court’s record as a zealous defender of free expression — too zealous for some tastes at times — this Minnesota law might just add to our state’s storied tradition of losing notable, even landmark, First Amendment cases at the Supreme Court.
The law in question, long on the books and not unlike election regulations in other states, is aimed at keeping electioneering, intimidation and manipulation away from polling places on Election Day. It bans anyone from importuning voters at or near the polls to campaign for or against specific candidates, political parties or referendums on the day’s ballot, even if only by displaying signs, posters, buttons, etc.
But the law goes further, even prohibiting the display of more general “political” material and attire, such as “[a] political badge, political button, or other political insignia.” Minnesota election officials have declared that this includes “[m]aterial promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on).”
The Voters Alliance, a group with recognizable views of its own — namely tireless skepticism and litigiousness regarding the integrity of Minnesota’s voting system and the need the alliance sees for stricter controls such as photo identification — is behind the seven-year courtroom battle over the polling place dress code’s constitutionality. The struggle started when alliance executive director Andy Cilek wore a Tea Party T-shirt and “Please I.D. Me” button to the polls back in 2010 and was “temporarily prevented from voting,” according to his petition to the court.
Such delays, while election judges ask voters voluntarily to cover up or remove an offending political button or insignia, seem to be the only consequences Minnesotans are apt to suffer for violating this law — making this a largely symbolic controversy, a matter of principle.
But it is one of the glories of America that matters of principle where basic rights are concerned are taken rather seriously. At least four justices on the highest court in the land see something needing further consideration in the alliance’s argument, rejected by lower courts, that Minnesota, by creating a “speech-free zone” at polling places, has imposed an “overbroad” restriction on political expression that invites discriminatory enforcement.
That’s what gets me wondering about the legality of my Star Tribune apparel. Here on the newspaper’s Editorial Board, we express “institutional” political opinions every day of every year. We endorse candidates for office in every election. I’ve noticed that to more than a few people across the political spectrum, the paper seems to embody “recognizable political views.”
But could it possibly make sense in America for me to be hassled at the polls for sporting my employers’ logo on Election Day? And if not, why should a Tea Party or MoveOn.org logo on a shirt or a cap raise official eyebrows?
We will learn by next summer what the Supreme Court makes of all this. What’s clear is that the “Roberts court” of recent years has established itself as an adamant champion of free expression in most circumstances. In sizzlingly controversial cases such as Citizens United (upholding political speech rights for corporations); the Westboro Baptist Church case (protecting hateful protests at veterans’ funerals); the so-called Stolen Valor case (protecting one’s right to lie about military service); a case establishing a constitutional right to distribute images of animal cruelty, and many others, the court in our era has, despite exceptions, usually been found defending First Amendment freedoms no matter how passionately one faction or another wants them suppressed.
The court is confronting more momentous and incendiary free expression cases this term than Minnesota’s sartorial dispute — notably one from Illinois that questions whether public employee unions can charge limited fees to nonmembers who object on political grounds, and another from California asking whether clinics devoted to steering pregnant women away from an abortion can be compelled to provide information on how to obtain one.
But the Minnesota case will be one more test of the court’s First Amendment convictions now that it is again fully staffed with Trump appointee Justice Neil Gorsuch.
Down through the years, Minnesota has provided the U.S. Supreme Court with a number of memorable chances to defend free expression. In Near vs. Minnesota, a true landmark way back in 1931, the court ruled that state governments could not use “prior restraint” to suppress publication even of a “malicious” and “scandalous” newspaper. In R.A.V. vs. City of St. Paul, in 1992, the court ruled that even cross-burning could not be punished under an ordinance that outlawed messages based on their subject matter. And in Republican Party of Minnesota vs. White in 2002, the court struck down judicial-ethics rules that tightly restricted candidates for elective judgeships from expressing their views.
When the high-court justices reveal their views on Minnesota’s polling-place dress code, we’ll know whether the state has again — perhaps with the best of intentions — stifled a liberty the Constitution protects.
D.J. Tice is at Doug.Tice@startribune.com.