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The Supreme Court Rules That Bans On "Political Apparel" In Polling Places Must Be "Sensible"

The 7–2 ruling struck down a Minnesota law.

Posted on June 14, 2018, at 12:40 p.m. ET

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Minnesota's ban on "political apparel" in polling places violates the First Amendment, the Supreme Court ruled on Thursday, due to the vague wording of the provision and the state's "haphazard" interpretations of it.

"Would a 'Support Our Troops' shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans?" Chief Justice John Roberts wrote for the 7–2 court majority. "What about a '#MeToo' shirt, referencing the movement to increase awareness of sexual harassment and assault?"

The decision makes clear that similar limits can pass constitutional muster — the state's provision banning "campaign materials" from near polling places, for example, was not even challenged. Minnesota's provision barring a "political badge, political button, or other political insignia" from being worn in a polling place, however, failed to provide a "sensible basis for distinguishing what may come in from what must stay out," Roberts wrote.

This is so, he wrote, because the language can be read to be so "expansive" and the state's interpretations of it are so "haphazard" — determinations about what is allowed and banned, he noted, are made by temporary government employees at the polling places — that the provision fails "even th[e] forgiving test" used to judge speech restrictions in a "nonpublic forum," which is what the court determined a polling place is.

Because the state "does not define the term 'political,'" Roberts wrote, "[u]nder a literal reading ... a button or T-shirt merely imploring others to 'Vote!' could qualify."

Pointing to the election policy the state uses as its "authoritative guidance" on the law, Roberts noted that the list of barred items contains some that are "clear enough" — such as items naming a political party or a candidate and those referencing support for or opposition to a ballot measure. However, he continues, the policy also states that "[i]ssue oriented material designed to influence or impact voting" and items "promoting a group with recognizable political views" would be covered by the ban.

As to the first, Roberts wrote, it "raises more questions than it answers," noting that, "as far as we can tell from the State’s briefing and argument," that means items referencing "any subject on which a political candidate or party has taken a stance" could be covered. "A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable," he concluded.

The "group" category, Roberts wrote, "makes matters worse" due to the breadth of the items that could be affected, noting that "[a]ny number of associations, educational institutions, businesses, and religious organizations" could be seen to fall under the ban. Roberts laid out the court's concerns about "haphazard" interpretations by pointing to questions posed to the state's lawyer at oral argument and answers given about various items.

Despite the criticism — and the court's clear conclusion that Minnesota's "political apparel" polling-place ban is unconstitutional — Roberts went on to note that the court's decision does not mean it is "an impossible task" to craft a constitutional version of the law.

"Other States have laws proscribing displays (including apparel) in more lucid terms," Roberts wrote, highlighting California and Texas statutes.

Justice Sonia Sotomayor, joined by Justice Stephen Breyer, dissented from the decision, writing that they, instead, would have asked the Minnesota Supreme Court to provide "a definitive interpretation of the political apparel ban" because that "would obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today."

In short, the two justices argue that the state's high court could interpret the state's law in a way that would avoid the constitutional concerns raised in the court's majority opinion.

In response to that, Roberts noted that the majority's opinion was based on the state's own interpretation of the law and that there is, as such, no reason to believe that sending it to the state's high court — a process called certification — could lead to any result that would avoid the constitutional concerns.

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