Justices Hunt for Workable Lines in Voting Apparel Case

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By Melissa Heelan Stanzione

An active U.S. Supreme Court wanted one thing during oral argument Feb. 28 from a group challenging a Minnesota law banning all political apparel at polling places: a line.

To accept your argument that the statute is too broad, we need a clear view from you as to how far a state can go, Justice Elena Kagan said to J. David Breemer, representing the challengers.

Breemer appeared to have trouble drawing such a line.

The group—the Minnesota Voters Alliance—sued the state after a member was turned away during the Nov. 2010 election for wearing a “Please I.D. Me” button and a Tea Party shirt.

The U.S. Court of Appeals for the Eighth Circuit held that the ban was constitutional because it furthers the government’s interest in maintaining peace at the polling place and preventing voter intimidation.

A victory for the MVA could potentially leave little room for government regulation of speech at polling places while a win for the state would signal that states have a wider berth to regulate speech there.

The high court has shown a marked interest in free speech cases this term, agreeing to hear six cases implicating the right. It hears about 70 cases per term.

Draw Me a Line

The line the justices sought is partly defined by the passive nature of political apparel, Breemer told the justices.

The “passive nature of the material undercuts the state’s interest in claiming that it’s disruptive,” he said.

The passive versus active distinction is a slippery one, Justice Neil M. Gorsuch said.

“A T-shirt, you say, is passive. What if it were instead a sign on my head, you know, flashing lights?” Gorsuch asked. Is that active or passive? How can we police that line? he continued.

Chief Justice John G. Roberts Jr. also thought it a difficult line to police.

A picture can say a thousand words, he said.

Apparel “can convey very strong and shocking images” and maybe the state can decide people are entitled to quiet reflection for a few minutes while casting a vote, he said.

That’s true, Breemer said. But, he said, if he were “pressured” to make a call, he’d say that a state couldn’t constitutionally proscribe advocacy apparel.

But “you’re pressured to come up with a workable rule to guide us when we write this decision,” Justice Anthony M. Kennedy snapped.

Justice Samuel A. Alito Jr. tried to help.

What about a law prohibiting the wearing of buttons or attire with the name of a candidate or referring to “a ballot issue or the name of a political party that has candidates running for office in that election,” he said.

That’s “one place where you can draw the line,” Breemer said, but then retreated regarding ballot issues.

It’s “a little bit hard” to evaluate an overbreadth argument “unless we have a clear view from you as to how far you think a state could go,” Kagan said.

“I’m not sure you’ve given us that view,” she said.

‘Parkland Strong’ Shirt?

The justices tossed out more hypotheticals to Daniel P. Rogan, an attorney with the Hennepin County Attorney’s Office, Minneapolis and counsel for Minnesota officials being sued.

Minnesota has an interest in protecting order and decorum in the voting place and preventing voter intimidation, and the law furthers that end, he argued.

It’s a bit of a stretch to say that someone wearing a shirt with “the tiniest little logo” is going to disrupt the decorum, Roberts said.

Does it violate the law to wear a #metoo pin or a pin saying “ACLU Defends Free Speech”? Justice Ruth Bader Ginsburg asked.

The line we’ve drawn bans campaign material plus political material—what a reasonable person would consider involves a message about an electoral choice, Rogan said.

Alito believed that standard was too arbitrary. How do you decide what an issue is? Alito asked.

Would a rainbow flag be permitted? What about a shirt saying “Parkland strong,” or an NRA shirt, or shirts with the text of the First or Second Amendments? Or a Colin Kaepernick jersey? he persisted. How about an “I Miss Bill” shirt or a “Reagan/Bush ’84" shirt?

Rogan had a tough time keeping up with the hypotheticals, but confirmed the latter two would be considered political under Minnesota’s law.

Voters’ Rights

The justices seemed concerned about what recourse was available for voters who were stopped for wearing banned apparel.

There are hard calls “at the edges of the line” but that doesn’t mean that the line is unreasonable,” Rogan said.

If a voter believes an election official acted inappropriately, the voter can demand an administrative review, he said.

It seems that a dispute about a shirt could be more disruptive than just wearing one, Kennedy pointed out.

Rogan assured the justices that the apparel ban really doesn’t lead to drastic confrontations and is manageable.

The statute is limited “by those individuals who are on the ballot” and “the issues they’ve brought up,” he said.

The case is Minn. Voters All. v. Mansky , U.S., No. 16-1435 , argued 2/28/18 .

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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