Political fashion – whether it be Barak Obama-themed dresses in 2008, anti-Muslim ban wares, or t-shirts speaking to American immigration policies – has been trending on the runway. Meanwhile, in D.C., the Supreme Court’s nine justices took on a case early this year that centers on the legality of wearing politically-charged garments and accessories to the polls, after the Minnesota Voters Alliance challenged a law banning voters from wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day.
The Supreme Court heard the respective parties arguments in the case in March, during which time “almost every one of the justices had some hypothetical article of clothing to talk about as they explored the issue of free speech at polling places and whether various clothing items or accessories could be prohibited.
Justice Ruth Bader Ginsburg asked about the legality of a #MeToo pin, while Justice Elena Kagan wanted to know about clothing that says “Resist” or “Make America Great Again.” Justice Samuel Alito rattled of a long list of garments and accessories that might be impacted by the law, such as a National Rifle Association t-shirt, shirts with the text of the First and Second Amendments, and a shirt with a rainbow flag.
At least a few of the justices suggested support for some form of polling place restrictions. Chief Justice John Roberts, for instance, noted the “important civic obligation” of the voting progress and seemed to see merit voters being able to enjoy “peace and quiet without being bombarded by another campaign display.”
“Most states have laws restricting what voters can wear to the polls, but Minnesota’s law is one of the broadest. It bars voters from casting a ballot wearing clothing with the name of a candidate or political party or related to an issue on the ballot,” as the AP stated in March. “But Minnesota voters also can’t wear clothing promoting a group with recognizable political views. That means no tea party T-shirts, AFL-CIO hats or MoveOn.org buttons.”
Opponents of Minnesota’s law – which dates back to 1912 and was intended to maintain decorum at polling sites – say it is simply too broad, whereas state legislation argue that is a reasonable restriction for the sole purpose of maintaining order at polling places and preventing voter intimidation.
In a 7-2 decision released this week, the Court struck down the Minnesota law as unconstitutional, holding that states cannot impose a blanket prohibition on the wearing of apparel and accessories that bear political messages at polling sites, in what is being touted as an important free speech ruling.
Writing for the court, Chief Justice John Roberts stated in the decision that the Minnesota law goes too far in banning voters from wearing political apparel, especially since the law itself does not define what it considers to be “political,” thereby leaving room for an overly broad interpretation, as noted by Roberts. He wondered in the ruling whether a “Support Our Troops” shirt could be banned, or one displaying “#MeToo,” in reference to the sexual harassment movement would be prohibited.
As Slate’s Richard Hasen wrote on the heels of the decision, “Even though the majority struck down Minnesota’s law, it did so in such a way that allows election officials great discretion to keep politicking out of the polling place and let people vote in peace.”
“The court said polling places were ‘nonpublic forums,’ where the government could limit speech in broad ways. It recognized that the state ‘may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most.’”
Justice Sotomayor filed a dissenting opinion, which Justice Breyer joined.
* The case is 16-1435 Minnesota Voters Alliance v. Mansky.