In an interview with Spero News, attorney Wen Fa of the Pacific Legal Foundation referred to a case his nonprofit law firm is pursuing at the Supreme Court to protect First Amendment rights of voters at the polls. PLF has taken the case of Andrew Cilek, a voter who was wearing a T-shirt bearing a Tea Party logo, the Gadsden flag, and the message “Don’t Tread on Me” when he went to his local polling place in Hennepin County, Minnesota, in 2010. Cilek was also wearing a button that read “Please I.D. Me,” which is worn by opponents of voter fraud. When a poll worker told Cilek to cover up or take off the shirt and button, Cilek refused. After being barred from voting, Cilek was allowed to vote on a third attempt, but an election worker recorded his name and address.

At issue, Fa said, is a Minnesota state law which provides that a “political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”  Cilek co-founded the Minnesota Voters Alliance -- which describes itself as a “nonpartisan political organization” made up of “citizens, volunteers, and experts committed to safeguarding and improving our elections process.” Cilek and the Minnesota Voters Alliance, and other groups, sued in federal district court to overturn what PLF believes is an “overbroad law” that is “violating their constitutional right to free speech.” The case is Minnesota Voters Alliance v. Mansky

When the district court rejected the claims, it nevertheless admitted that the Tea Party and other plaintiffs had not engaged in any active campaigning or electioneering. The Eighth Circuit Court of Appeals affirmed the lower court's decision, while ruling that the government’s interest in “peace, order, and decorum” at polling places justified the political apparel ban. According to PLF, the lower courts effectively gave carte blanche to the government to ban any speech besides voting at the polls. In a statement, PLF opined,  “All voters in Minnesota and the nine other states with similar bans are threatened with the same mistreatment—just for wearing anything a poll worker deems to be ‘political,’ including apparel related to labor unions, the Chamber of Commerce, American Legion, or NAACP.”

In an earlier release, Fa said of the Minnesota law on political apparel, “The state’s restrictions on voter apparel apply to any clothing that reflects personal values, even clothing with a message that is unrelated to anyone’s campaign. Such a limitless ban on personal expression is unconstitutional.”

Spero News interviewed attorney Fa after PLF argued the case before the Supreme Court on February 28. It is the fourteenth case that PLF has tendered before the high court. In the interview, was asked how the wearing of political apparent differs from the distribution of partisan literature where prohibited at polling places. Fa said, “Giving out pamphlets is very different in two main ways: one, it involves active solicitation, whereas this just involves the wearing of a T-shirt,” Fa said. “Second, where advocating for a candidate, that’s different from the ban here because this ban extends far beyond advocacy and to self-association to some political viewpoint, for example, the NRA, NAACP, ACLU. This law stifles much more speech than the one you just mentioned, and that’s why this law is unconstitutional.”

Minnesota state law, said Fa, already prohibits the endorsement of candidates or the intimidation of voters at polling places. Thus, he said, the case before Supreme Court has no effect on those prohibitions. Fa said he is concerned that the Minnesota law on political apparel does not clearly define poll workers, thus permitting discrimination by officials on the basis of viewpoints with which they may oppose. “You might have a more liberal poll worker who is more apt to take down the names and addresses of conservative apparel wearers for prosecution,” Fa said, who noted that the same may be true for a conservative poll worker. “Because the law is so broad, the potential for discrimination for viewpoints is pretty rampant,” Fa affirmed. 

Free speech is endangered at polling places beyond Minnesota, Fa said. He cited the example of a poll worker in Texas tried to bar a voter who was wearing a souvenir T-shirt bearing the word “Alaska” in 2008 with the justification that it was a perceived endorsement of  then-vice-presidential candidate Sarah Palin, a former governor of Alaska. In Colorado and Florida, Fa said voters wearing “MIT” shirts – as in the Massachusetts Institute of Technology — were stopped by poll workers who concluded that the shirts were expressing support for Mitt Romney -- the 2012 Republican presidential candidate. Fa said, “There were voters wearing ‘I Miss Bill’ T-shirts in Arkansas who were prevented from voting because Bill Clinton was a candidate 20 years ago.”

Fa noted that Texas, New York, Vermont, and Delaware are among the other states with laws resembling Minnesota’s apparel ban. “A decision by the Supreme Court vindicating First Amendment rights would have a national effect,” Fa said. “Yesterday, in oral arguments, the state’s attorney [Hennepin County senior attorney Daniel Rogan] mentioned that although a white T-shirt isn’t banned because it’s not a political insignia, it would be perfectly constitutional in his view for the defendant to ban white shirts when voters go to vote. I think that’s extraordinary and that it highlights the unconstitutionality of the state’s position.”

Here is an excerpt of the transcript:

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor —

JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

MR. ROGAN: Your Honor, I — I – I think that that could be viewed as political, that that — that would be — that would be -­-

JUSTICE ALITO: How about the First Amendment?

(Laughter.)

MR. ROGAN: No, Your Honor, I don’t -­ I don’t think the First Amendment. And, Your Honor, I –­

CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?

MR. ROGAN: It would be allowed.

CHIEF JUSTICE ROBERTS: It would be?

MR. ROGAN: It would be. And — and I think the — I understand the — the idea, and I’ve — I’ve — there are obviously a lot of examples that — that have been bandied about here –­

JUSTICE ALITO: Yeah, well, this is the problem. How about a Colin Kaepernick jersey?

The Supreme Court is expected to release its opinion on the case in June.
 

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Martin Barillas is a former US diplomat and the editor of Spero News.

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