- The Washington Times - Friday, February 23, 2018

When Andrew Cilek entered a Lutheran church in Minnesota to cast his vote during the 2010 election, he was surprised when the poll worker told him he couldn’t vote because he was wearing a t-shirt with the emblem of a local tea party group, and had a button asking for poll workers to check his ID.

He kept pressing to be allowed in, and eventually the media showed up to cover the test of wills. He was finally allowed to cast his ballot, but poll workers took down his name and information.

Minnesota, it turns out, bans political apparel at the polls, including anything that suggests political symbolism or a point of view.

Mr. Cilek says he wasn’t campaigning, and can’t believe states are allowed to control his own clothing. On Wednesday the U.S. Supreme Court will hear his case.

“I was definitely orderly. I didn’t stir up any issues whatsoever to do what I believed I had a right to do, which was to wear what I want as long as it wasn’t campaign material,” said Mr. Cilek, executive director of the Minnesota Voters Alliance, an organization supporting election reforms and integrity.

More than a dozen states have similar laws, which have led to some bizarre happenstances.

One Texas woman voted in her sports bra because she wasn’t allowed to enter the polling place wearing a National Rifle Association t-shirt. Another man was arrested in Texas for wearing a “Deplorables” T-shirt, mocking Hillary Clinton, when he went to vote in 2016.

In Connecticut, before an election that involved former pro-wrestling executive Linda McMahon, a federal judge had to decide whether voters wearing shirts with logos of her old company, World Wrestling Entertainment, would be allowed to vote. The judge ruled the shirts were legal.

And during the 2012 election people wearing shirts from the Massachusetts Institute of Technology were flagged in Florida and Colorado because poll workers thought the acronym, MIT, could be seen as supporting GOP presidential nominee Mitt Romney.

“The amount of political clothing that is available now days is endless,” said David Breemer, senior counsel for the Pacific Legal Foundation, which is defending Mr. Cilek. “You’re really silencing the vast amount of speech.”

The goal of these state laws is to keep polling places from turning into free-for-all partisan battle zones, with campaigns engaged in sign fights, chant wars and the like.

In their briefs, Minnesota officials pointed to a Florida incident where a woman campaigning for Donald Trump outside of a polling place used pepper spray on a Hillary Clinton supporter after they exchanged words.

“Safeguarding the dignity of the polling place and the voters within it promotes public confidence in electoral results and such confidence is a critical component of our democracy,” Minnesota argued.

Attorneys for Minnesota cite a 1992 Supreme Court ruling upholding a 100-foot ban around polling places, prohibiting the display of campaign materials and soliciting votes.

But free-speech advocates say there must be a line somewhere between T-shirts and pepper spray that would recognize free speech while not turning into a free-for-all.

Mr. Cilek likely complicated his case by not only wearing the tea party shirt, but displaying a button asking poll workers to ID him before he voted — which workers saw as a political statement about voter integrity laws.

The Brennan Center for Justice, which is backing Minnesota, said that button was clearly over the line, particularly because producing voter ID isn’t a requirement for voting in Minnesota.

“It could have led poll workers to ask for ID when they weren’t allowed to do that,” said Daniel Weiner, senior counsel at the Brennan Center.

But the American Civil Liberties Union, which often finds itself on the same side as the Brennan Center on free speech issues, is backing Mr. Cilek.

“The fact that the offending medium is apparel showcases how passive the speech is, and thus how strained is the claim that the clothing could somehow be a pernicious threat that intimidates voters or defrauds the election process,” the ACLU said in its brief.

And don’t bother looking to the country’s founders for guidance on what they’d intended. Voting in their day was public, with men showing up at the appointed time and calling out their vote for all to hear.

The right to a secret ballot grew out of the Progressive Era, as communities pushed back against what they saw as dangers from voter fraud or intimidation.

Bruce Ackerman, a law professor at Yale University, doubted there was much danger of undo influence on someone’s vote based on what another person wore to the polls.

“It is profoundly inconsistent with both the right to vote and First Amendment freedom of political expression to allow volunteer election officials to exclude citizens on the basis of case by case determinations of dress code violations,” he said. “You’re going to be influenced by a shirt that’s four people down? No.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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