- The Washington Times - Wednesday, February 28, 2018

The Supreme Court took a dim view Wednesday of Minnesota’s law banning voters from wearing political apparel to vote on Election Day, with liberal justices questioning where to draw the line and conservatives wondering who got to decide what was political in the first place.

Minnesota, one of about a dozen states with a broad ban on political clothing, buttons or stickers at the polls, said it fears a lack of decorum if voters wear whatever they want.

Andrew Cilek, a Minnesota voter, challenged the law after he was repeatedly denied entry to vote in 2010 while wearing a tea party T-shirt and a button asking poll workers to have him show his ID before voting.


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“This court has never upheld a prohibition this broad,” said J. David Breemer, Mr. Cilek’s lawyer. “A lot of this material isn’t worn for advocacy, but for self expression.”

The Justices seemed to agree the Minnesota law was sweeping, but grappled with where to draw lines in a way that would balance voters’ First Amendment rights with the state’s interests.



“It just is a little bit hard, Mr. Breemer, to evaluate an argument of overbreadth unless we have a clear view from you as to how far you think a state could go. So I’m not sure that you’ve given us that view,” Justice Elena Kagan told him.

Mr. Breemer admitted he didn’t have an easy line to draw.

But justices on both sides of the political divide seemed uncomfortable with the expansiveness of Minnesota’s ban and the discretion it gave state officials.

“How far does — does this go?” asked Justice Ruth Bader Ginsburg. “You can’t wear a pin saying ‘Me Too,’ you can’t wear a pin saying ‘ACLU Defends Free Speech’?”

Daniel Rogan, an attorney representing Minnesota election officials, said at least four people work at a polling place and election judges have a lot of discretion to make all sorts of decisions regarding voting on election day, suggesting political apparel is “well within the understanding of an election judge in Minnesota.”

“There is no evidence of any viewpoint discrimination in Minnesota in its 100 years,” said Mr. Rogan. “Any viewpoint discrimination that could occur is likely to be self-corrected by others in the polling place.”

Mr. Rogan explained that if a person shows up to vote in Minnesota, but is wearing apparel that’s deemed too political, the voter is asked to cover it up.

If he or she refuses, the voter may cast a ballot but the individual’s name is taken down and the voter could face a $300 fine.

In Mr. Cilek’s case he was twice denied entry to the polling place before finally being allowed to vote. He said his name was taken down.

Chief Justice John G. Roberts. Jr. said that slim penalty seemed to indicate the law wasn’t particularly important to the state.

“That suggests to me that your interests might not be terribly strong if someone’s about to break the law and you say, OK, go ahead, but, you know, we’re going to write your name down,” he said.

Minnesota also struggled to explain why some messages were more controversial than others.

“How about a shirt with the text of the Second Amendment?” Justice Samuel A. Alito Jr. asked Mr. Rogan.

“I think that that could be viewed as political,” Mr. Rogan responded.

“How about the First Amendment?” Justice Alito asked, which was greeted with laughter inside the courtroom.

“It would be allowed,” Mr. Rogan said.

Stephen Klein, an attorney with the Pillar of Law Institute who attended Wednesday’s arguments, said Minnesota’s law is an outlier in being so broad.

“The fact is most states — and that was made clear by both sides — you can wear an NRA T-shirt to the polling place,” said Mr. Klein. “The record of anything going wrong with that is approximately zero.”

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