Supreme Court Considers Voter Fashion Sense

Make America Great Again hats, Black Lives Matter t-shirts among issues

When is a hat a hat? The Supreme Court is considering whether hats and t-shirts constitute political speech in voting polling stations. (Bill Clark/CQ Roll Call)
When is a hat a hat? The Supreme Court is considering whether hats and t-shirts constitute political speech in voting polling stations. (Bill Clark/CQ Roll Call)
Posted February 28, 2018 at 2:35pm

The Supreme Court grappled Wednesday on where to draw a line when it comes to voters who want to wear a “Make America Great Again” hat, a “#resist” T-shirt, a “Parkland Strong” button or other political messages when they cast ballots.

A century-old Minnesota law, similar to those in about nine other states, prohibits voters from wearing clothes with political messaging related to an election or ballot question. The state wants to keep the dignity, decorum and solemnity of polling places.

But voters challenged that ban as being too broad when it prohibits something like a shirt with a tea party slogan or “Black Lives Matter,” and argued that they don’t lose their First Amendment rights at the polling place door.

The justices will decide the case before the term ends in June, and it could affect laws in every state about what is appropriate attire at polling locations.

Left to figure out what exactly Minnesota’s law would ban, the arguments featured liberal Justice Elena Kagan uttering Trump’s ubiquitous campaign slogan, and conservative Justice Samuel A. Alito Jr. wondering about someone wearing a rainbow flag shirt.

The Make America Great Again hat wouldn’t be permitted, said Daniel Rogan, the lawyer arguing on behalf of Minnesota. But the shirt with the rainbow flag would be allowed unless there was a ballot question related somehow to gay rights.

In a 1992 case, the court found that a ban of campaign signs and other materials within 100 feet of a polling spot did not infringe on the First Amendment. But this state law provides much more gray area about what is a political message.

“How far does this go?” Justice Ruth Bader Ginsburg asked Rogan. “The clear case is a pin that says ‘Vote for Candidate X.’ But we’re told by the petitioner that you can’t wear a pin saying, ‘Me Too,’ you can’t wear a pin saying, ‘ACLU Defends Free Speech?’ ”

The law is enforced with workers at the polling places who either ask the voter to cover or remove the offending clothing or item. Otherwise, he can still vote but will have his name taken down for possible fine later — but such a fine hasn’t happened, Rogan said.

Justice Anthony M. Kennedy, when he heard that happens right in the same room as other voters signing in, said: “It seems to me that’s more disruptive than wearing the shirt.”

Alito called Minnesota’s system “an invitation for arbitrary enforcement and enforcement that’s not even-handed,” and pressed the issue in a series of questions about shirts related to firearms and shootings.

“How about a shirt that says, ‘Parkland Strong?’” Alito asked, a reference to the Florida high school shooting where 17 people died and prompted students there to reignite a national discussion about gun regulations.

That would be allowed in, Rogan said.

“Even though gun control would very likely be an issue? I bet some candidate would raise an issue about gun control,” Alito said. “OK. How about an NRA shirt?”

A shirt specific to the National Rifle Association would not be allowed today in Minnesota, Rogan said.

Prompted by more Alito questions, Rogan told the justices that a voter with a shirt bearing the text of the Second Amendment would not be allowed because it could be viewed as political, but a shirt with the First Amendment would be allowed.

David Breemer, the attorney who argued on behalf of the Minnesota Voters Alliance and others who brought the case, said that is a chilling effect for legitimate speech for political groups.

Two voters trying to cast ballots in 2010 had to either remove their offending clothing or have their name and address taken down for potential prosecution, while a number of other people after that didn’t even try to wear apparel with a political theme because they were afraid of enforcement, Breemer told the justices.

That prompted Justice Sonia Sotomayor to point out the message on the buttons at issue in this case — one about the contentious issue of voter identification laws.

“I’m sorry. Let’s not forget who these people were and what they were wearing, ‘Please ID me,’ which for some people was a highly charged political message,” Sotomayor said, which a lower court found “was intended to intimidate other people to leave the polling booth.”

The case is Minnesota Voters Alliance v. Mansky, Docket No. 16-1435.