WASHINGTON — A shirt with a rainbow flag. Clothing that says “Make America Great Again.” A National Rifle Association T-shirt. A pin that says “#MeToo.”
Those were some of the items Supreme Court justices wanted to talk about Wednesday during arguments about a Minnesota law that bars residents from wearing political clothing at the polls. Wearing their all-black robes, the justices spent the hourlong arguments pulling out hypothetical outfits and discussing whether Minnesota’s law goes too far in telling voters what not to wear.
Most states have laws restricting what voters can wear to the polls, but Minnesota’s is one of the broadest. The state’s law bars voters from casting a ballot wearing clothing with the name of a candidate or political party or supporting or opposing an issue on the ballot. But Minnesota voters also can’t wear clothing promoting a group with recognizable political views. As a result, Minnesota has interpreted the law to bar clothing supporting the tea party, the AFL-CIO and MoveOn.org.
Opponents of Minnesota’s law say it is overly broad. But the state has defended it as a reasonable restriction that keeps order at polling places and prevents voter intimidation.
During arguments Wednesday, both sides in the case said there are about 10 states with laws like Minnesota’s, though they have disagreed on which ones. Other states have narrower laws just barring voters from wearing items referencing candidates or issues.
Several justices seemed supportive of Minnesota’s effort to at least keep the polling place free of candidate messaging. Chief Justice John Roberts told attorney J. David Breemer, who was arguing against Minnesota’s law, that “people’s apparel can convey very strong and shocking images” and “maybe the state can decide that, just before you cast your vote, you should have at least a moment free” of the campaign. And Justice Stephen Breyer noted that Minnesota has had virtually no problems with its law for 100 years.
But Justice Neil Gorsuch suggested Minnesota’s law is “a bit of an outlier” in terms of its broad reach. And Justice Samuel Alito said Minnesota’s law invites “arbitrary enforcement.”
Alito peppered attorney Daniel Rogan, who argued the case for Minnesota, with a series of questions about whether certain T-shirts would be permitted in the polling place under his state’s law. Alito’s scenarios included: A shirt with a rainbow flag. An NRA shirt. A shirt with the text of the Second Amendment. Shirts that say “I Miss Bill” and “Reagan/Bush ’84.” A shirt with the text of the First Amendment. And a shirt that says “Parkland Strong,” a reference to the city where 17 people were fatally shot by a gunman at a high school earlier this month.
Rogan told Alito the rainbow flag shirt was OK unless there was an issue on the ballot that related to gay rights. The NRA shirt, 2nd Amendment shirt and shirts referencing Bill Clinton, Ronald Reagan and George H.W. Bush were not OK. But Rogan said the 1st Amendment and Parkland shirts were permitted.
Among those who attended the arguments was Andy Cilek, one of two Minnesota voters who defied elections officials after he was asked to cover up a tea party T-shirt and button.
The case is Minnesota Voters Alliance v. Mansky, 16-1435.