Minnesota has a dress code for voting. The idea, the state says, is to create a safe space for democracy.
To make sure voters are in a properly contemplative mood at their polling places on Election Day, the state bans T-shirts, hats and buttons that express even general political views, like support for gun rights or labor unions. The goal, state officials have said, is “an orderly and controlled environment without confusion, interference or distraction.”
Critics say the law violates the principle at the core of the First Amendment: that the government may not censor speech about politics. They add that voters can be trusted to vote sensibly even after glancing at a political message.
“A T-shirt will not destroy democracy,” a group challenging the law told the Supreme Court this month.
The court will hear arguments in the case, Minnesota Voters Alliance v. Mansky, No. 16-1435, next month. By the time the term ends in June, the justices will decide whether people can be forced to choose between their right to express themselves and their right to vote.
The case started when members of the Minnesota Voters Alliance, which says it works to ensure “election integrity,” turned up at Minnesota polling places wearing T-shirts bearing Tea Party logos and buttons saying “Please I.D. Me.”
They were told to cover the messages and were allowed to vote even if they refused. But they risked prosecution for disobeying polls workers’ orders.
The group and two individuals challenged the law on free speech grounds, and they lost in the lower courts. A trial judge said the “Please I.D. Me” buttons were particularly problematic because they were “part of an orchestrated effort to falsely intimate to voters in line at the polls that photo identification is required in order to vote in Minnesota.”
The 8th U.S. Circuit Court of Appeals, in St. Louis, upheld the law.
“Even if Tea Party apparel is not election-related, it is not unreasonable to prohibit it in a polling place,” Judge Duane Benton wrote. “In order to ensure a neutral, influence-free polling place, all political material is banned.”
The Supreme Court case is not centered on the particular items the challengers wanted to wear. It is instead a general challenge to the law, saying it is overbroad and vague even if the particular items could constitutionally be barred.
The Minnesota law is certainly written in broad terms.
“A political badge, political button or other political insignia may not be worn at or about a polling place on primary or election day,” its key provision says.
State officials have interpreted the law to bar not only campaign buttons and the like but also any apparel that takes a position on a contested political issue or promotes “a group with recognizable political views (such as the Tea Party, MoveOn.org and so on).”
When the case was argued in the 8th Circuit, the state’s lawyer said the law could apply to T-shirts bearing the logos of the Chamber of Commerce or a labor union.
In dissent, Judge Bobby E. Shepherd wondered why “the presence of a passive and peaceful voter” wearing a T-shirt would disrupt polling places. Among the T-shirts banned by the law, Shepherd said, were ones promoting the American Legion, Veterans of Foreign Wars, the National Rifle Association, the AFL-CIO and the NAACP.
The state has an important precedent on its side. In a 1992 decision, Burson v. Freeman, the Supreme Court upheld a Tennessee law that created a 100-foot buffer zone around polling places. But that law was aimed at traditional campaign signs and posters, not apparel bearing more general messages.
The Supreme Court upheld the Tennessee law. Justice Harry A. Blackmun, writing for a four-member plurality, said it was needed to combat “voter intimidation and election fraud.”
Laws like the one in Tennessee are fairly easy to enforce. The Minnesota law, and similar ones in at least nine other states, require difficult on-the-spot judgments about what apparel qualifies as political. Those decisions, moreover, are often made by temporary poll workers rather than seasoned government officials.
Such workers can make odd calls. In 2012, a young woman wearing an MIT sweatshirt was stopped by a confused Denver poll worker who thought she was electioneering on behalf of Mitt Romney, a presidential candidate. A supervisor intervened, explaining that the initials on the shirt stood for the Massachusetts Institute of Technology.
“There was only one ‘T,’ so the voter was not electioneering,” said Alton Dillard, a spokesman for the Denver Clerk and Recorder’s Office.
Another poll worker tried to stop a Houston woman from voting in the 2008 election because she was wearing an Alaska T-shirt. Sarah Palin, then the state’s governor, was running for vice president. Again, cooler heads prevailed.
Similar problems have arisen in the Supreme Court’s backyard. A few years ago, I saw a court police officer order a man wearing a “Guns Save Lives” button on the Supreme Court plaza to remove it.
“No political logos on the plaza,” an officer said.
I asked the officer for his reasoning.
“You can’t interview people on the plaza,” he responded.
He was part of a long tradition. A Supreme Court police officer once threatened a woman with arrest for displaying a sign bearing the verbatim text of the First Amendment.
Whether at a polling place or on the Supreme Court plaza, decorum is a worthy goal. But so is the robust debate protected by the First Amendment.