On June 14, 2018, the Supreme Court of the United States decided Minnesota Voters Alliance v. Mansky, No. 16-1435, holding that Minnesota’s ban on the wearing of political apparel in the polling place violates the Free Speech Clause of the First Amendment.
A Minnesota statute provides that a “political badge, political button, or other political insignia may not be worn at or about the polling place” on election day. The Court referred to this provision as the “political-apparel ban.” Minnesota election judges have the authority to decide whether a particular item of apparel falls within the ban. If a voter violates the statute, he is asked to conceal or remove the banned article. If he refuses, he is still allowed to vote, but the incident “will be recorded and referred to the proper authorities.” Violators may receive a reprimand or a civil penalty from a state administrative body. They may also be charged with a petty misdemeanor.
For election day in November 2010, the Minnesota Voters Alliance planned to have its supporters wear buttons saying “Please I.D. Me” to the polls. One of the plaintiffs also planned to wear a Tea Party shirt. At least three of them who refused to comply with instructions to remove the apparel had their names recorded by an election official.
The plaintiffs sued to have Minnesota’s statute declared unconstitutional under the First Amendment’s Free Speech Clause, both on its face and as applied to their actions. The district court ultimately granted the state summary judgment on the plaintiffs’ First Amendment claims, and the Eighth Circuit affirmed on appeal.
The Supreme Court reversed. The Court began by noting that Minnesota’s ban “plainly restricts a form of expression within the protection of the First Amendment.” The question was whether the ban was permissible under the Court’s “forum-based” approach for assessing restrictions that the government puts on the use of its property. The Court held that a polling place in Minnesota qualifies as a “nonpublic forum.” Thus, the state may impose some content-based restrictions on speech—including restrictions that exclude political advocates and forms of political advocacy—but only if the regulation of speech is reasonable in light of the purpose served by the forum, and not an effort to suppress expression merely because public officials oppose the speech.
Because the plaintiffs did not claim that the ban discriminated on the basis of viewpoint, the question resolved to whether the political-apparel ban was “reasonable in light of the purpose served by the forum”—i.e., voting. The Court held that it was not. The Court observed that the state’s interpretation of the ban introduced “confusing line-drawing problems.” For example, the state asserted that the ban extended to “issue-oriented material.” But it is unclear what constitutes an “issue” in that context. And the state argued that the ban extended only to speech aimed at “electoral choices” at issue in the polling place. But that too is a vague term that would “increase the potential for erratic application” of the ban. To show the potential for erratic application, the Court pointed out that the state stated in oral argument that a t-shirt bearing the language of the First Amendment would be permissible, but a t-shirt bearing the language of the Second Amendment would not. The lack of “objective, workable standards” to govern election judges’ exercise of discretion created a ban that was not “capable of reasoned application.” The Court concluded: “if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernable approach than the one Minnesota has offered here.”
Chief Justice Roberts delivered the opinion of the Court, in which Justices Kennedy, Thomas, Ginsburg, Alito, Kagan, and Gorsuch joined. Justice Sotomayor filed a dissenting opinion, in which Justice Breyer joined.