High Court asked to review state’s speech-stifling restrictions on voter apparel

WASHINGTON, D.C.;  May 31, 2017: The Supreme Court is being asked to review — and reject — a Minnesota election law that tramples free speech rights by forbidding voters from wearing anything to the polls that might be interpreted as even slightly political or ideological, even if it has no relation to any candidate, ballot measure, or political party.

The petition for certiorari was just filed by Pacific Legal Foundation, a watchdog organization that litigates for limited government and individual rights.  PLF represents the Minnesota Voters Alliance (MVA), a nonprofit dedicated to preventing voter fraud; Andy Cilek, Executive Director of the MVA; and Sue Jeffers, a radio talk show host in Minneapolis/St. Paul and a former election judge.  PLF represents all these clients free of charge.

The case targets Minnesota Statute 211B.11, which forbids voters from wearing any “political badge, political button, or other political insignia.”  Officials have interpreted this open-ended language to cover messages that merely express a general social or philosophical outlook.  As the government itself noted at oral argument, Minnesota’s broad political apparel ban encompasses any shirt with the logo of the Chamber of Commerce or the AFL-CIO.

“Minnesota has gone far beyond legitimate regulation and is now attempting to stifle the speech of voters of all ideological beliefs,” said PLF attorney Wen Fa.  “Instead of merely telling people they can’t wear campaign paraphernalia when they vote, the state’s sweeping restrictions can be used against any kind of apparel that reflects personal values, no matter how nonpolitical the message.  From unions to the Tea Party, this is a broad ban that threatens the free speech rights of everyone.

“The polling place is an iconic embodiment of what the Constitution is all about,” Fa noted.  “But Minnesota’s dress code flouts the Constitution by turning polling places into First Amendment-free zones.”

“In these times when free speech enjoys scant support from bureaucrats and politicians as it is continually attacked throughout the nation, Minnesota’s political apparel ban is particularly dangerous,” added Andy Cilek.  “It empowers politicians with the authority to crush legitimate political expression with which they disagree.”

A government dress code that treads on the First Amendment

Cilek and the MVA challenged the restrictions after Cilek became a victim of them.  When he attempted to vote in November, 2010, an election official ordered him to remove his “Don’t tread on me” shirt and his “Please I.D. Me” button (the latter reflecting the MVA’s support for voter-identification requirements, an issue that was not on the ballot).  After a substantial delay, he was eventually permitted to vote, but only after his name had been recorded for potential prosecution under the Minnesota law, which makes violations a criminal misdemeanor.

The current appeal marks the second time the High Court has been asked to review this case.  In 2013, a divided panel of the 8th Circuit upheld Minnesota’s restrictions as reasonable to prevent polling-place electioneering.  However, Judge Bobby E. Shepherd filed a partial dissent arguing the restrictions are far broader than needed for that purpose.  Indeed, he noted, they could outlaw the messages or insignia of a number of nonpolitical, public interest organizations, including the American Legion, Veterans of Foreign Wars, AFL-CIO, NRA, and the NAACP.

The Supreme Court declined to take the case at that time, after Minnesota argued there were still unresolved claims to be sorted out.  This February, the 8th Circuit finally resolved petitioners’ remaining First Amendment claims and again upheld the apparel restrictions.

Now that the circuit court has resolved all pending claims, the High Court is again being asked to take the case.