What should’ve been a slam-dunk win for those challenging Minnesota’s ban on “political” apparel at the polls was complicated by the plaintiffs’ counsel’s inability to draw clear lines between what the government can and can’t restrict. The voters’ lawyer began his argument by arguing, quite correctly, that Minnesota’s law was overbroad – sweeping in shirts and buttons supporting the Chamber of Commerce, NAACP, and AFL-CIO – and so several justices pushed him on the constitutionality of a more narrow rule, one restricting paraphernalia explictly referencing candidates and parties. Counsel hemmed and hawed but ultimately stated that he would make that “close call” by disallowing such a statute, though it would depend how the legislature worded it.
That unsuccessful attempt to play coy opened the door to discussions of how to draw the distinction between electioneering – which the Court 25 years ago correctly held could be banned within a certain distance of the polling booth – and what the law at issue proscribes. Chief Justice John Roberts and Justice Anthony Kennedy further expressed concern about the state’s interest in maintaining “decorum” and “solemnity” (which Justice Elena Kagan later made light of by suggesting that it likened a poll to a church). As Justice Kagan put it, “it’s hard to evaluate an overbreadth argument if we don’t know where to draw the line.”
This shouldn’t be so hard. Federal and state laws everywhere already prohibit intimidation, deception, disruption, and other attempts to interfere with the right to vote, so the rare t-shirt that does one of those things – for example, “Republicans vote tomorrow” or “Mexicans shouldn’t vote” – is already covered. As for the electioneering bit, a voter’s wearing a button is very different from an activist’s waving signs or distributing literature – or even that same voter’s going up to others in line and trying to convince them to vote for a particular candidate.
Moreover, Minnesota’s law is so broad and gives so much discretion to poll workers that its enforcement is arbitrary. When the lawyer representing the election officials tried to explain that a political message or insignia could only be restricted if it related to an issue that was part of the campaign – which seemed to be a change from his earlier litigating position – Justice Samuel Alito shut him down with a devastating line of inquiry. Alito asked whether shirts with the following text could be banned: Parkland Strong, NRA, “I Miss Bill [Clinton],” Reagan-Bush ‘84. Counsel struggled to answer, at which pointed Alito asked whether, in the current political climate, the text of the Second Amendment could be banned. The response was yes!
That’s about as much of a mic-drop moment as happens at the Supreme Court – and it was followed by Justice Ruth Bader Ginsburg’s concern that #MeToo apparel could be banned given that sexual harassment is very much an issue in contemporary discourse. “The [poll workers’] conversation about the shirt seems more disruptive” than the shirt itself, commented Justice Kennedy.
The challengers will still win their case – only Justices Stephen Breyer and Sonia Sotomayor appeared firmly on the state’s side, so I’m still confident the margin will be more than 5-4 – but it’ll be closer, and the opinion likely narrower, than it needed to be.