Stephen MIller and Pamela Dorian of Cozen O’Connor

Does the First Amendment allow a state to prohibit voters from wearing “political” apparel, such as T-shirts and buttons, in the voting booth on Election Day? The U.S. Supreme Court will address this question in Minnesota Voters Alliance v. Mansky, setting up a clash between a state’s interests in an intimidation-free polling place versus an individual’s freedom of speech.

Throughout each election cycle, Americans are bombarded with political speech on a daily basis. From TV commercials to yard signs to bumper stickers, it often seems like there is no escape from the entreaties. But, in fact, there is an escape—the voting booth itself.

To maintain an orderly environment on Election Day, all 50 states codified statutes regulating certain speech within the polling place. Minnesota’s statute is among the broadest in the country. For example, Minnesota Statute Section 211B.11(1) prohibits individuals from wearing “a political badge, political button or other political insignia … at or about the polling place on Primary or Election Day.” If a person violates the statute, he could face civil penalties or even criminal prosecution.

In 2010, Andy Cilek went to vote at his local polling place in Hennepin County, Minnesota. His T-shirt displayed a Tea Party logo, bearing the message “Don’t Tread on Me,” as well as a button with the text “Please I.D. Me.” When Cilek arrived at the polling place, an election worker told him to either cover up or take off the shirt and button. He refused and left. After three more attempts to enter the polling place, Cilek was eventually allowed to vote, but an election worker wrote down his name and address pursuant to Section 211B.11(1).

Just prior to the November 2010 election, several individuals and organizations, including Minnesota Voters Alliance (MVA), sued state officials to enjoin enforcement of Section 211B.11(1). They argued that the statute violated the First Amendment because it failed to advance legitimate interests or was overbroad. They also contended that the vagueness of the statute gave election officials unchecked discretion to arbitrarily decide which messages are “political.”

In response, Minnesota argued that the statute, which was enacted over a century ago, protects the right to vote in an orderly and controlled environment without confusion, interference or distraction. The state also pointed to Supreme Court precedent that political speech can be restricted outside of the polling place. Section 211B.11(1), Minnesota argued, was simply an extension of that principle inside the polling place.

The district court dismissed the complaint, finding that Section 211B.11(1) passed First Amendment muster. The U.S. Court of Appeals for the Eight Circuit affirmed the lower court’s ruling on MVA’s facial challenge but remanded the as-applied claims. On remand, the district court rejected MVA’s as-applied challenge. MVA appealed again, and the Eight Circuit affirmed the lower court’s ruling. The Supreme Court granted certiorari solely to address whether the statute was facially overbroad under the First Amendment.

The Supreme Court heard oral argument on Feb. 28, 2018.  At the argument, some justices struggled with the necessity for a broad restriction at all. For example, Justice Neil Gorsuch asked whether there is any “documented need” for such an expansive ban on political apparel. He wondered what compelling interest Minnesota identified that required its statute to go so much further than the majority of states. Chief Justice John Roberts similarly reasoned that the relatively minor consequence for violation of Section 211B.11(1)— simply jotting down the name of the voter—suggests that the state’s interests “might not be terribly strong.”

Other justices were more sympathetic to the underlying purpose of the law. Justice Stephen Breyer, for example, observed that the state was carving out a place for the voters to have a quiet place of thought and reflection on Election Day. Justice Elena Kagan similarly reasoned that there were clearly some places where political apparel is rightfully prohibited, such as a courtroom, but questioned why a polling place should also fall in that category. “Why isn’t [the polling place] just the culmination of what is often a rowdy political process?” MVA pushed back on this point, arguing that “polling places are not pristine retreats from the real world,” and that a government cannot “sacrifice” the First Amendment to make them so.

Even setting aside Minnesota’s interests, several justices questioned where to draw the line for identifying “political” speech. Justice Samuel Alito appeared most troubled by the state’s amorphous definition, stating that it was “an invitation for arbitrary enforcement.” He questioned the state on a series of examples—would a shirt with a rainbow flag be permitted under the law? What about a shirt that says “Parkland Strong,” referring to the recent school shooting in Florida? What about an NRA shirt? A shirt with the text of the Second Amendment? A Colin Kaepernick jersey? The state conceded that some of these were “hard calls” and that there would always be hard calls, but that did not mean that the line that Minnesota drew is “unconstitutional or even unreasonable.”

The justices lobbed difficult questions to both sides without suggesting an ultimate result. It is fair to say, though, that the justices are generally protective of free speech, and the difficulty of drawing the line for “political” apparel might end up tipping the scale in favor of the challengers. A decision is expected later this year.

Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania. 

Pamela Dorian also practices in the firm’s commercial litigation group. She received her J.D. from the University of Virginia School of Law and her B.A. from Pennsylvania State University.