Should the Fashion Police have the power to control what voters wear to polling places? That’s what the Supreme Court will determine after hearing arguments Wednesday in the case of Minnesota Voters Alliance v. Joe Mansky, which challenges a state law against wearing “politically-charged” clothing or accessories to the polls. Nine other states have similar laws.
It all started when Andrew Cilek, founder and executive director of the Minnesota Voters Alliance, went to the polls wearing a shirt with a picture of the Gadsden Flag (“Don’t Tread On Me”) and a small Tea Party logo, plus a button that featured the phone number and website address of Election Integrity Watch. He was stopped in his tracks and forced to cover up before he could vote. So, is this law a necessary provision to stop blatant electioneering as people are casting their votes, or it is a violation of Andrew Cilek’s free speech rights?
The case could boil down to what “political” is supposed to mean. Certainly campaign buttons or shirts for particular candidates, parties or propositions would be considered political by just about everyone, but it’s a pretty vague term. The Tea Party is a group of generally like-minded individuals but not an official party; it has no candidates on the ballot. As for Election Integrity Watch, who isn’t for election integrity? (On second thought, maybe that should be the subject of another essay.) Officials said they interpret the law to include anything a “reasonable person” sees as having a political connotation. But deciding what’s too political to wear to the polls must inevitably lead even the most reasonable person to make some awfully subjective judgment calls.
For example, should a rainbow flag shirt be allowed? Daniel Rogan of the Hennepin County Attorney’s office told the Justices it would be unless there were a ballot issue involving gay rights. Okay, then how about an NRA shirt? To that, he said no, period. I’m not sure that’s a very consistent policy.
Justice Alito ventured further into this area when he asked about a shirt bearing the text of the Second Amendment. Rogan answered that it could be viewed as political. (Just wondering if anyone asked about the text of the FIRST Amendment; how ironic if that were to be banned as well.) “How about a Colin Kaepernick jersey?” Alito asked, referencing the NFL player who started the National Anthem protests and whose name has become –- pardon the expression –- a political football. Rogan didn’t think that would be banned. “How about All Lives Matter?” Alito queried. Rogan said that could be perceived as political. See how subjective this exercise is?
Try it yourself, with this list I came up with. Let’s say you’re an election judge. Which of these would you think could be interpreted as a “political” expression? None of them carry the name of a party or candidate, but they all suggest, with greater or lesser ambiguity, the wearer’s political leanings:
“Make America Great Again” cap
Bright red cap that says “America Is Great”
Blue cap with ACLU logo
Pink p*** hat
Army Vet’s hat
NRA T-shirt with semiautomatic guns on it
PETA T-shirt with adorable animals on it
“Proud American” t-shirt
“Proud Immigrant” t-shirt
PBS tote bag for “A Prairie Home Companion”
Rush Limbaugh tote bag for “EIB”
American flag T-shirt
Mexican flag T-shirt
Russian flag T-shirt
Confederate flag T-shirt
Bold tattoo: “Black Lives Matter”
Bold tattoo: “Back The Blue”
Planned Parenthood T-shirt
“Protect The Unborn” T-shirt
“Pray For America” T-shirt
See how they’re all a little nuanced –- and also how much easier it is to approve one that’s not at odds with your own leanings? The federal appellate courts have been deeply split on this issue, so it’ll be interesting to see how SCOTUS rules. I’m sure we all agree that modern campaigns last long enough (!) without continuing right through the voting process. We want to be able to cast our votes in as neutral an atmosphere as possible, but at the same time there’s this little thing called “freedom of expression.”
Sometimes the judgment calls have been downright ridiculous. Cilek’s lawyer told of cases in Colorado and Florida in which voters wearing “MIT” shirts were stopped in 2012 because election workers thought they were campaigning for Mitt Romney. It turned out they were students at the Massachusetts Institute of Technology. Never mind that “Mitt” has two t’s.
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