The MeToo Movement, the National Rifle Association, and this month's shooting at a high school in Parkland, Fla., all received nods during a showdown at the U.S. Supreme Court on Wednesday as the justices considered whether a Minnesota law prohibiting people from wearing political attire at the polls infringes on the First Amendment right to free speech.
Justice Samuel Alito posed several questions to Daniel Rogan, who argued the case on behalf of Minnesota officials, about which phrases voters are permitted to wear on a t-shirt at the polls.
Alito first started by asking whether someone could wear a shirt with the rainbow flag to a polling place, which Rogan said may be permitted if the issue of gay rights was not on the ballot. Alito then asked whether a shirt with the phrase “Parkland Strong” would be allowed, referencing this month’s shooting at Marjory Stoneman Douglas High School in Florida.
Rogan told Alito it would be.
But when the justice asked whether a voter could wear a shirt imprinted with the text of the Second Amendment or one for National Rifle Association, Rogan said that would be prohibited, as it is political in nature. He also said a #MeToo shirt or a pin might be deemed to be unacceptably political.
Alito suggested the Minnesota statute may be overly broad and could invite "arbitrary enforcement and enforcement that's not evenhanded."
"I have no idea where the line lies," he said. He also warned many things have political connotations, which are "in the eye of the beholder."
The case before the justices Wednesday, Minnesota Voters Alliance v. Mansky, centers around a Minnesota law that prohibits people from wearing a “political badge, political button, or other political insignia” at a polling place on election day.
People who appear at the polls wearing these items are instructed by election officials to remove or conceal the political apparel. If a voter refuses to do so, their name is recorded for referral to "appropriate authorities," and they may face prosecution.
In November 2010, Andrew Cilek, executive director of the Minnesota Voters Alliance, arrived at his polling place in Hennepin County, Minn., on Election Day wearing a button that stated “Please I.D. Me,” and a Tea Party shirt with the phrase "Don't Tread On Me."
An election worker twice instructed Cilek to remove or cover the attire, and he refused to do so. He was ultimately permitted to vote, and election officials recorded his name and address for violating the state law.
The Minnesota Voters Alliance, joined by other individuals and organizations, sued state officials on the grounds that the Minnesota law violated the First Amendment on its face. Lower courts, including the 8th U.S. Circuit Court of Appeals, upheld the law.
Justice Sonia Sotomayor reminded the court Wednesday that the case stemmed in part from the “Please I.D. Me” button worn by Cilek, which she called a “highly charged politically message."
“Let’s not forget who these people were and what they were wearing," she said.
Justice Elena Kagan noted there are some locations, such as the court, where political attire isn't wanted or allowed, and asked whether polling locations should have the same rules.
"But why should a polling place be that sort of place?" she said. "In other words, you talk about the decorum, the solemnity. Makes it sound a little bit church-like. Why is a polling place that? Why isn't it just the culmination of what is often a rowdy political process?"
Justice Anthony Kennedy, meanwhile, took issue with the fact that people are often confronted in polling places by election officials if they arrive wearing political attire in violation of the statute.
Rogan explained to the justices that an election judge would approach a voter found to be wearing political paraphernalia and instruct them to remove it. This conversation, Rogan said, would take place inside the polling place. But Kennedy asserted that an election official raising an issue with the political attire inside the polling place seems "more disruptive than wearing the shirt."
Alito also raised questions about whether it's right to force people to remove their clothing. Often times, he said, voters go to the polls before or after work, or "in the middle of doing chores for the day."
If an election judge tells that voter they are wearing political attire, the individual may wind up having to vote wearing a bathrobe or another cover-up.
"You think that's not kind of humiliating?" Alito asked, before saying the other option is for the voter to be "listed as a bad Minnesotan," a reference to the recording of names and addresses for violators.
Rogan said the state’s interest is in protecting the “fundamental right to vote," and ensuring voters are free from intimidation.
At least nine other states have similar laws on the books, the state said.
A decision is expected from the Supreme Court by the end of June.