The Supreme Court heard on Tuesday a high-profile First Amendment case involving a Minnesota voter who was expelled from a polling site for wearing a T-shirt displaying the words “Don’t Tread on Me” and pin with the words “Please I.D. Me.”
The Pacific Legal Foundation, a nonprofit law firm that assists clients in defending their rights before government intrusion, claims that the Minnesota state law that prohibits voters from wearing “political” apparel at polling places is unconstitutional and a violation of the First Amendment. The law applies to any t-shirt, button, or other item that identifies any political issue and even any organization that is known to take positions on political issues. According to the PLF website, “Voters who wear AFL-CIO or NRA caps are told they must remove them before they can enter the polling place and vote. If they refuse, election officials take their names for possible prosecution and penalties up to $5,000. Lower courts upheld this law on the theory that government can ban all expression, besides voting, at a polling place.”
It was Andy Cilek, a political activist, who was stopped by poll workers at his local polling site in Eden Prairie, Minnesota, in 2010. Poll workers took down his name for possible prosecution. While Cilek was eventually permitted to cast a ballot after waiting five hours, his confrontation with authorities was included as a keystone of the case that appeared before the Supreme Court on Tuesday. The case is titled Voters Alliance v. Mansky.
PLI argues that the Minnesota law is far broader than laws that forbid active campaigning or electioneering in near polling places. At least nine states -- Delaware, Kansas, Montana, New Jersey, New York, Tennessee, Texas, Vermont and South Carolina -- have similar restrictions on political apparel at polling places, according to the plaintiffs.
Cilek joined the Minnesota Voters Alliance and other groups to sue in federal court to overturn the law, arguing that it limits their constitutional right to free speech. Initially, a district court rejected the claims, despite noting that the Tea Party and other plaintiff organizations did not engage in any active campaigning or electioneering. Later, a split Eighth Circuit Court of Appeals affirmed the lower court, claiming that the government has an interest in maintaining “peace, order, and decorum” at the polling place, which justified a blanket political apparel ban.
According to PLF, “In other words, the lower courts basically granted the government carte blanche to ban any type of speech—other than voting—at polling places. 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 a court filing by Minnesota Secretary of State Steve Simon, the state government argued that political apparel “could give rise to verbal disputes or even physical altercations,” while citing that fights occurred polling locations in Florida and Michigan on Election Day 2016. “Tensions may well be running high, particularly when the election has been a contentious one,” the filing added.
The Minnesota Voters Alliance is based in St. Paul and is headed by Cilek. A 54-year-old retired Marine, Cilek claims that it was on his third try on Election Day 2010 that he was allowed to vote. He decided to file the lawsuit out of a concern that elections officials were targeting only certain groups. In Minnesota, election officials have interpreted the state law as that prohibits campaign literature and material from groups with political views such as the Tea Party movement or the leftist MoveOn.org. Elections officials asks alleged violators to cover up or remove offending apparel or other items. If they do not, they may still vote, but officials record their names for possible prosecution. The state has no record of prosecutions under the law.
PLF attorney Wen Fa, who is of counsel in the case, told Spero News in an email, “You know the law is in trouble when both the Cato Institute and the ACLU have filed briefs urging the Court to strike it down.” He went on to say, “Asking voters not to speak on political issues on Election Day is like asking many Americans not to say Merry Christmas on December 25.”