by Timothy Sandefur
February 28, 2018
It is, as they say, as American as apple pie: wearing a T-shirt that expresses one’s political opinion on election day. “Re-elect Mayor Smith!” “Black Lives Matter” “NRA Forever.” But in many states, that’s against the law, thanks to rules that say you can’t “electioneer” at polling places. Today, the U.S. Supreme Court heard arguments in Minnesota Voters Alliance v. Mansky, a case that asks whether those rules violate the First Amendment (and a case in which we filed a friend of the court brief).
It’s an issue dear to the heart of the Goldwater Institute. Almost a decade ago, we brought lawsuits challenging rules in two Arizona counties where Tea Party members were forbidden to wear shirts featuring the classic Gadsden Flag and the words “Tea Party—Principles, Not Politics” when they went to vote. We won those cases—but the lawsuit argued before the nation’s highest court this morning comes from Minnesota, where the rules forbid a person from wearing a shirt, a button, or a cap featuring the logo of an organization with “recognizable” political views—whatever that means. As one judge noted, this rule would seem to forbid an AFL-CIO shirt or a Planned Parenthood button.
The state’s justification for these rules is that it must maintain order and decorum in the polling place. That’s certainly a valid goal—but the ban on shirts and buttons doesn’t really do that. On the contrary, the evidence in the case showed that the ban actually caused more disruption, because citizens objected when busybody polling place workers ordered them to cover up their shirts or forced them to wait for hours before allowing them to vote. It would have been far more orderly just to let them vote in peace.
The Minnesota law also goes beyond maintaining order. It forbids people from engaging in “persuasion” in the polling place—and that’s not okay. Persuasion is the core of the First Amendment, and the government has no business barring people from engaging in persuasion, so long as those people aren’t harassing or bothering others. In fact, it makes no sense to ban “persuasion” in the polling place when in many states, including Minnesota, voters can vote from home. They can cast a ballot from the kitchen table while listening to Rush Limbaugh or Rachel Maddow. But they can’t wear a button that says “ACLU” when they quietly go about their business in the voting booth?
That’s not just silly, it’s also unconstitutional. Fifty years ago, the Supreme Court upheld the free speech rights of high school students who wore black armbands to class to protest the Vietnam War. The justices ruled that while school administrators can block students from expressing themselves in ways that disrupt the classroom, there has to be some evidence that that is what’s happening—they can’t just censor speech on the assumption that disruption will result. But certainly the government has even less control over an adult voter in a temporary polling place than over a student in a government-owned school.
The Minnesota T-shirt case should be an easy call. States can maintain order on election day without engaging in censorship—and as long as voters aren’t bothering one another, they should be free to wear what they like.
Timothy Sandefur is Vice President for Litigation at the Goldwater Institute.