Minnesota's Vague Ban On 'Political' Wear At Polling Places Shut Down By The Supreme Court

from the open-interpretations-and-random-enforcement-are-not-constitutional-bedfellows dept

Eight years after Minnesota's vague ban on "political" apparel at polling places was first challenged, the Supreme Court has finally struck the ordinance down as unconstitutional. The law allowed election judges to decide whether or not someone's t-shirt or button or whatever sent a "political" message that might somehow sway the vote.

The law covered far more than overt messages about political parties or specific candidates. According to the state's arguments, it could be read as covering anything possibly pertaining to referendum issues and/or issues any political candidate had expressed an opinion on. This lead to a spectacular bit of oral argument [PDF] when the state's lawyer tried to explain what may or may not be covered by the apparel ban.

MR. ROGAN: Well, Your Honor, the political has a -- has a plain meaning in our statute based on that it -- it's influencing elections. What I -- all that I'm describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that's going to be reasonably understood by voters in the polling place.

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

MR. ROGAN: A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights.

JUSTICE ALITO: How about a shirt that says "Parkland Strong"?

MR. ROGAN: No, that would -- that would be -- that would be allowed. I think -­ I think, Your Honor -­

JUSTICE ALITO: Even though gun control would very likely be an issue?

MR. ROGAN: To the extent -­

JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

MR. ROGAN: Your Honor, the -- the -­ the line that we're drawing is one that is -­ is related to electoral choices in a -­

JUSTICE ALITO: Well, what's the answer to this question? You're a polling official. You're the reasonable person. Would that be allowed or would it not be allowed? [...]

MR. ROGAN: I -- I think -- I think today that I -- that would be -- if -- if that was in Minnesota, and it was "Parkland Strong," I -- I would say that that would be allowed in, that there's not -­

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication -- and I think what you're getting at, Your Honor -­

JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

MR. ROGAN: Your Honor, I -- I -- I think that that could be viewed as political, that that -- that would be -- that would be -­

JUSTICE ALITO: How about the First Amendment? (Laughter.)

MR. ROGAN: No, Your Honor, I don't -­ I don't think the First Amendment. And, Your Honor, I -­

CHIEF JUSTICE ROBERTS: No -- no what, that it would be covered or wouldn't be allowed?

MR. ROGAN: It would be allowed.

The point Alito makes is simple: a ban on policitized apparel, especially one written this broadly, is subject to the interpretation of the person making the judgment call, each of which will have their own definition of "political." The state can only argue that some things might always be permissible, but for everything else, it's likely cover up or get cut out of the democratic process.

This exchange is paraphrased in the Supreme Court's decision [PDF], which finds the law too vague and internally inconsistent to be considered constitutional.

The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.

The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such 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.

On top of the that, the law could be read to encompass apparel not even considered remotely "political" until it's being worn by a person trying to vote in Minnesota.

Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue[] confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern. If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? [...]

Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation. Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform?

The state claimed it made clear delineations, all of which somehow were subject to the "reasonable" interpretation of magically-unbiased election judges. As the court points out, the law is capable of defeating the rationale of its own defenders, thanks to its lousy construction.

The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve.

It's not impossible to keep a polling place free of overt political messages, but the state legislature's attempt is particularly terrible, expanding the definition of "political" until it can be read to cover almost anything other than a blank t-shirt. The law -- standing since the late 19th century -- is now effectively dead, determined to be too unconstitutional to serve the public as it attends to its democratic duties.


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  • identicon
    Anonymous Coward, 20 Jun 2018 @ 3:52pm

    First off...

    That this would ban a tee with the First Amendment printed on it is the most ironic thing I have heard all week.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 20 Jun 2018 @ 4:06pm

      Re: First off...

      The lawyer claimed that such a t-shirt would be allowed, but just a few sentences above he also claimed that a rainbow shirt would be allowed unless there was currently a vote regarding gay rights.

      As such by his own argument, all that would be required for such a t-shirt to be banned would be a vote that impacted the first amendment, leading to the hilarious situation where you're allowed to make known your support/opposition for the first amendment unless you're trying to make known your support/opposition for the first amendment at the same time you were voting on a bill that impacted it.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 20 Jun 2018 @ 4:10pm

    Wait, what?

    JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

    MR. ROGAN: A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights.

    Translation: You're allowed to show support for a particular cause... unless you're there to vote on said cause, in which case you are prohibited from showing your support in any fashion other than a vote.

    Talk about a train-wreck of a law, glad they managed to strike down this legal absurdity.

    reply to this | link to this | view in chronology ]

    • icon
      mhajicek (profile), 20 Jun 2018 @ 8:33pm

      Re: Wait, what?

      A blank t-shirt would be allowed, unless it were of a color that could be associated with a political party, movement, or race, like red, blue, green, brown, black, white, or purple (that I can think of off the top of my head).

      reply to this | link to this | view in chronology ]

      • identicon
        Michael, 21 Jun 2018 @ 10:27am

        Re: Re: Wait, what?

        I would assume that a US flag would be ok unless there was a political divide about flag burning...

        Oh, and I guess you can only wear clothing that is labeled "Made in the USA" if none of the candidates have an opinion about global trade.

        I'd say everyone needs to go to the polls naked, but I don't really want to see most people sans clothing.

        reply to this | link to this | view in chronology ]

  • icon
    Nathan F (profile), 20 Jun 2018 @ 5:33pm

    Holy crap, I would love to hear the actual audio on that part... and a camera on the attorney cause he had to have been sweating bullets after that exchange.

    reply to this | link to this | view in chronology ]

  • icon
    Atkray (profile), 20 Jun 2018 @ 8:56pm

    The scary thing...

    It boggles the mind that this had to get all the way to the supreme court.

    No one had the clarity of mind to say hang-on a second......

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jun 2018 @ 5:14am

    And seeing as....

    most of the polling material involves a little bit of black text on a white background, isn't this sending a "political" message about the "superiority" of one race over another?

    Forget what people are wearing. There might be something more sinister at play here.

    reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 21 Jun 2018 @ 8:24am

    "...expanding the definition of "political" until it can be read to cover almost anything other than a blank t-shirt."

    Unless, of course, the ballot included some kind of dress code-related measure.

    reply to this | link to this | view in chronology ]

  • identicon
    Mike, 21 Jun 2018 @ 10:03am

    Wait wait

    A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights

    reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 21 Jun 2018 @ 10:31am

    Impossible decision

    if the lawyer arguing the case can't even say authoiratively that something would or wouldn't be allowed....how is fielding this hot-mess to all the voting precincts going to work?

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 21 Jun 2018 @ 2:00pm

    Techdirt needs to sell a tshirt that says, Minnesota can't ban this shirt, with rainbow colors.

    reply to this | link to this | view in chronology ]

  • identicon
    priya gupta, 12 Jul 2018 @ 10:31pm

    Impossible decision

    Holy crap, I would love to hear the actual audio on that part... and a camera on the attorney cause he had to have been sweating bullets after that exchange.

    reply to this | link to this | view in chronology ]


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