The U.S. Supreme Court, of the many choices it could make on the contested legal questions of the day, has reached down and plucked for consideration a Minnesota law that attempts to keep the polling place a neutral space in which voters can contemplate their choices, relatively free of political noise.
The statute, similar to those in nine other states, says that “a person may not display campaign material, post signs, ask, solicit or in any manner try to induce a voter” within 100 feet of a polling place. It prohibits anyone from distributing “political badges, political buttons or other political insignia to be worn at or about the polling place on the day of the primary or election.” The ubiquitous “I Voted” stickers are explicitly exempted.
Andy Cilek, of the Minnesota Voters Alliance, set out to test the ban in 2010 when he wore a “Don’t Tread on Me” T-shirt that bore the logo of the Tea Party and a button that said “Please I.D. Me,” showing the group’s website and phone number. The alliance, claiming to combat alleged voter fraud, has employed a number of tactics over the years that seem far more likely to suppress certain voter turnout, including a rejected demand for individual voter histories, “bounties” offered for information leading to what they consider fraudulent voters and sending self-appointed poll-watchers to certain election places. Last year, the alliance urged election judges to break the law by refusing to follow election procedure on how to handle possibly ineligible voters and it previously took out billboards proclaiming — without evidence — that Minnesota led the nation in voter fraud.
This latest effort feels like another attempt at voter suppression. Were the court to strike down the law in its entirety, it might pave the way for polling places filled with political messages — some of which could be perceived as voter intimidation.
And yet, there is value in examining the language of Minnesota’s law, which is undoubtedly broad and invites subjective decisions as to what constitutes a political message. Supporters of the law argue that the ban does not discriminate based on political views. It does not apply outside the narrow boundaries of Election Day polling places. Earlier court decisions have ruled that government has a right to maintain a small zone in which voters can be momentarily free of attempts to influence their decisions. The Eighth U.S. Circuit Court of Appeals opinion, which upheld a lower-court ruling on the validity of Minnesota’s ban, said that “even if Tea Party apparel is not election-related, it is not unreasonable to prohibit it in a polling place.” Such a ban, it said, is “wholly consistent with the [state]’s legitimate interest in preserving polling place decorum and neutrality.”
But it is possible for such a vaguely worded law to be interpreted too broadly. Does it protect against arbitrary decisions restricting voters who wear, say, an AARP T-shirt or a button promoting Ducks Unlimited? What about an NRA shirt in a year when there is no gun initiative on the ballot or a Black Lives Matter hat? Volunteer election judges might welcome more guidance on such matters.
A middle ground would be to preserve the law but narrow its prohibitions to issues and candidates on the ballot or messages that could be perceived as intimidating to voters. Free speech is a sacred right in this country, but so too is the right to vote. Both must be protected and the courts must be vigilant in finding a balance.