Not every Supreme Court decision about elections is a disaster, and the ruling in Minnesota Voters Alliance v. Mansky striking down Minnesota’s very broad ban on wearing political apparel in polling places is a pretty good one. Although the court struck down a law I thought it should have upheld, the opinion shows a more realistic and functional understanding of the political process than the court has shown in campaign finance cases. It gives states ample room to assure that people can vote at polling places free of political pressure and intimidation.
As I explained in a preview of the case, Mansky raised the question of whether Minnesota and other states can prevent people from wearing political apparel like “Make America Great Again“ caps or “pussyhats“ to polling places. The case arose from a complaint of a Tea Party group, the Minnesota Voters Alliance, that in 2010 sent its members to vote wearing political paraphernalia, including T-shirts containing Tea Party messages such as “Don’t tread on me” and a button saying “Please I.D. Me,” even though Minnesota has no voter-ID law. Poll workers asked the voters to cover up their political messages because of a state law banning electioneering at and around polling places. Among other things, the law says a “political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”
In Thursday’s majority opinion written by Chief Justice John Roberts, the court said that Minnesota’s use of the word political was unconstitutionally overbroad, especially because state officials construed it as covering any issue on which a candidate or political party may have taken a stance. That in turn gave election officials too much discretion, violating the First Amendment. The court asked, “Would a ‘Support Our Troops’ shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a ‘#MeToo’ shirt, referencing the movement to increase awareness of sexual harassment and assault?”
Justice Sonia Sotomayor, joined by Justice Stephen Breyer, dissented. She thought the case should have taken a detour to the Minnesota Supreme Court to construe it in such a way that avoided this kind of open-ended interpretation. (This is much like my earlier view that courts could deal with election officials being overbroad or engaging viewpoint discrimination in later lawsuits involving specific bad acts by election officials.)
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.” And it went further in two very important ways.
First, the court made it clear that a state “may prohibit messages intended to mislead voters about voting requirements and procedures.” So Minnesota likely had the power to ban the “Please I.D. Me” buttons, not because they are political, but because they are misleading. In an era of campaign dirty tricks, “fake news,” and misinformation, this is a welcome recognition that states have broad powers to stop false and misleading speech about when and how to vote.
Second, when the court described permissible state laws to ban electioneering in polling places, it did not endorse the narrow, formalistic view of what counts as election speech that it has adopted in the campaign finance area. There, the court on First Amendment grounds has said that limits on election spending (say, barring foreign nationals from spending in our elections) are permissible only when they prohibit express advocacy (like “Vote for Trump”) or its functional equivalent.
In Mansky, the court endorsed a much broader and more functional approach. As an example of a permissible law, it pointed to Texas Elections Code section 61.010, which bans at the polling place and within 100 feet of it “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.” That “relating to” language is much broader than the narrow tests the court has used in campaign finance cases, and it recognizes the reality that campaign-related speech often does not use “magic words” of advocacy.
And the court went even further, declaring that Texas’ law and California’s law, which the court also pointed to approvingly, do not “set the outer limit of what a State may proscribe.”
This is not the biggest election case of the season. We are still waiting on the partisan-gerrymandering decisions and a Texas redistricting case. We also just got a bad decision on voter purges. But at a time when I expect the worst from the Supreme Court, Mansky is a bit of a pleasant surprise.