May 31, 2017

PLF asks Supreme Court to invalidate Minnesota dress code for voters

By Wen Fa Attorney

On Election Day, millions of Americans trek to polling places in all corners of this Nation. On the way to casting their vote, many proudly wear shirts, buttons, and badges of organizations that share their views. Union members, for example, may wear SEIU t-shirts; gun owners, National Rifle Association badges; readers of this blog, Pacific Legal Foundation lapels.

To most, wearing shirts, buttons, and badges saying “Pacific Legal Foundation,” “AFL-CIO,” and so on is just another form of political expression—much like voting itself. To regulators in Minnesota, however, it’s a criminal act that subjects voters to the criminal penalties assessed for a misdemeanor and civil penalties of up to $5,000.

That’s because Minnesota law forbids voters from wearing any apparel that a bureaucrat deems “political.” That includes shirts featuring the logo of the American Legion, Veterans of Foreign Wars, AFL-CIO, MoveOn.Org, the Chamber of Commerce, or the NAACP, just to name a few examples. That also includes two items of apparel that PLF client Andy Cilek wore to the polling place: a Tea Party t-shirt that said “Don’t tread on me” next to a picture of the Gadsden Flag, and a “Please I.D. me” button created by Andy’s organization: Minnesota Voters Alliance.

After a poll worker told Andy it was illegal for him to vote while wearing the forbidden apparel, Andy filed a federal lawsuit to vindicate his constitutional right to free speech. Unfortunately, the lower courts rejected Andy’s claim, reasoning that the government may ban all expression, besides voting, at the polling place.

Fortunately, we have a Supreme Court of the United States. PLF is representing Andy, Minnesota Voters Alliance, and election judge Sue Jeffers in asking the Supreme Court to review—and invalidate—Minnesota’s political apparel ban.

Polling places, in a way, are like airports. In both places, the government has more leeway to regulate speech than it does in a public park. But the power to regulate speech doesn’t include the power to ban all speech. So, as the Supreme Court noted three decades ago, the government may not prohibit all First Amendment activities at an airport, without violating the First Amendment.

The same principle should apply here. By banning all political expression, Minnesota has essentially created speech-free zones at polling places throughout the State. The Supreme Court should take this case and hold that speech-free zones are incompatible with the Free Speech Clause.

Click to read our press release, litigation backgrounder, and cert petition.

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Minnesota Voters Alliance v. Mansky

On February 28, 2018, the U.S. Supreme Court heard oral argument in our case challenging a Minnesota election law that literally strips free speech rights from the backs of voters. A Minnesota state law prohibits voters from wearing “political” apparel at a polling place. This includes any t-shirt, button, or other item that identifies any political issue and even any organization that is known to take positions on political issues. Voters who wear AFL-CIO or NRA caps are told they must remove them before they can enter the polling place and vote. If they refuse, election officials take their names for possible prosecution and penalties up to $5,000. Lower courts upheld this law on the theory that government can ban all expression, besides voting, at a polling place.

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