When you vote in Minnesota, if you wear a T-shirt with the historic and famous Gadsden flag on it — the first flag of the Continental Marines — then you will get thrown out of your polling place. Apparently, wearing a picture of a coiled rattlesnake and the phrase “Don’t Tread on Me” is a “political” message that is banned at the polls.
Andy Cilek of the Minnesota Voters Alliance (MVA) wore such a shirt in 2010, and was thrown out of his polling place. Cilek also wore a button that read “Please I.D. Me,” an obviously deeply subversive political statement — at least according to Minnesota election officials.
The Supreme Court heard oral arguments on Wednesday in MVA’s case challenging Minnesota’s unconstitutional ban on so-called political T-shirts and apparel at the polls. The Court should throw out this overbroad restriction on core political speech, which violates First Amendment protections. Some of the claims made on Wednesday by Daniel Rogan, the lawyer for Ramsey County, the defendant in the lawsuit, would be funny if they weren’t so dangerous to the First Amendment rights of ordinary citizens.
Minnesota’s statute is an outlier; only ten states have such broad laws that restrict political apparel at the polls. Most states have laws prohibiting voters from campaigning in or around the polls, and the Court recognized in a 1992 case, Burson v. Freeman, that this serves states’ interest in preventing voter intimidation. But those laws prohibit signs and apparel that directly oppose or support specific candidates, not general apparel on political issues, such as Andy Cilek’s T-shirt.
Minnesota’s vague law places far too much discretion in the hands of poll workers to decide what is “political.” This was ably demonstrated at the Supreme Court by Justice Samuel Alito, who highlighted how the law was easily open to selective and partisan enforcement.
Alito ran through a litany of political symbols and messages, asking which ones would be allowed for voters to wear on T-shirts: a rainbow flag, the phrase “Parkland Strong,” the NRA logo, the text of the Second Amendment, the text of the First Amendment, a Colin Kaepernick jersey, and the phrase “All Lives Matter.” According to Rogan, the NRA, the Second Amendment, and the “All Lives Matter” T-shirts would all fall on the wrong side of the law.
So a Minnesotan could wear a T-shirt emblazoned with the words of the First Amendment, but if he wore a shirt that said “the right of the people to keep and bear Arms, shall not be infringed,” he would be tossed out of his polling place. Apparently, some parts of the Bill of Rights are more “political” than others.
Justice Ruth Bader Ginsburg chimed in, asking about a “Me Too” pin. Rogan responded that the line the state drew was where “a reasonable person would understand that the message that’s being delivered is one regarding electoral choices.” Alito jumped back in: “The problem is that so many things have political connotations, and the connotations are in the eye of the beholder.”
Justice Neil Gorsuch pressed Rogan on why the state has a compelling interest in restricting this much speech — pointing out that the burden is on the state to justify this ban. The lawyer replied that Minnesota’s law was reasonable under the Court’s decision in Burson. But Gorsuch shot back that Burson dealt with electioneering and actual campaigning; Minnesota is asking the Court to go even further, to uphold a law that would bar voters from wearing apparel with “certain portions of the Bill of Rights . . . but not other[s].”
Minnesota’s ban on political speech sweeps too broadly and prohibits far more speech than is reasonable.
Justice Sonia Sotomayor asked the lawyer for Andy Cilek, David Breemer of the Pacific Legal Foundation, about Cilek’s “Please I.D. Me” button. Sotomayor called it a highly charged political message, one the lower court claimed “was intended to intimidate people to leave the polling booth.” Sotomayor said, “Let’s not forget who these people were and what they were wearing.” But these people — Andy Cilek and the Minnesota Voters Alliance — are grassroots activists whom leftists falsely label as vote-suppressors just because they believe in commonsense reforms such as voter ID.
So Sotomayor’s argument won’t wash, and is certainly no justification for Minnesota’s overbroad ban on political apparel. Like all states, Minnesota has a state law (Chapter 211B.07) that specifically prohibits intimidating, coercing, threatening, and otherwise placing undue influence on voters. Section 11(b) of the Voting Rights Act also prohibits similar voter intimidation or coercion.
Therefore, any behavior or apparel that rises to the point of intimidating voters can be prosecuted under both state and federal law. Minnesota’s ban on political speech sweeps too broadly and prohibits far more speech than is reasonable or necessary to prevent electioneering, campaigning, or intimidation at the polls.
The Supreme Court should side with Andy Cilek and anyone else who wants to wear her NRA, Second Amendment, #MeToo, or Gadsden-flag T-shirt when she goes to vote. As Breemer put it, “The First Amendment doesn’t stop at the polling-place door.”
— Elizabeth Slattery is a legal fellow, and Hans von Spakovsky is a senior legal fellow, at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation. Von Spakovsky is the coauthor of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.