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>>Wearing Political Messages Inside a Polling Place

Wearing Political Messages Inside a Polling Place

By Rodney Smolla…

As this year’s Supreme Court term turns to the stretch run, one of the most interesting cases to watch will be Minnesota Voters Alliance v. Mansky (Docket No. 16-1435). The case is a challenge to a Minnesota law challenging what citizens may wear when they go to polling places to vote. The Minnesota law reads: “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”

The scope of the law has been broadly interpreted. Forbidden wearing apparel includes direct advocacy of a candidate’s election (“Vote for Trump” or “Vote for Clinton”) as well as statements on general political issues (“I’m Pro Choice” or “I’m Pro Life”) and statements of one’s affiliation with a political movement or group (“Black Lives Matter” or “Back the Tea Party”).

The United States Court of Appeals for the Eighth Circuit upheld the law, reasoning that polling places are not public forums. In my view, the Eighth Circuit got it wrong. I hope the Supreme Court sees it that way as well.

There is not much precedent to go on. The leading Supreme Court decision dealing with expression at polling places is a 1992 case, Burson v. Freeman, 504 U.S. 191 (1992). The Court in Burson upheld a Tennessee ban on the “display of campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position” within 100 feet of a polling place.

It is one thing to regulate how many feet persons engaged in active politicking to influence voters must remain from a polling place entrance. It is quite another to regulate what voters themselves may wear as they walk inside.

The default rule in American society is that we can wear what we want to express our political views, and the government has no business censoring us just because other citizens may disagree with what we are expressing. In the adult world, First Amendment doctrine instructs us to just turn our heads and ignore messages if we find them disagreeable.

I see no cogent reasons for compromising this principle on Election Day as citizens cast their votes. Minnesota seems to think that somehow voters will be intimidated by buttons and slogans and symbols worn by fellow voters inside a polling place. This strikes me as ludicrously paternalistic. In the lead-up to Election Day, voters are bombarded with political messages of all sizes and shape. Often the political discourse is caustic and vehement. Voters are mature enough and self-reliant enough to handle it. They don’t need government protecting them from political messages with which they disagree.

To be sure, election officials should have the right (and indeed have the duty) to police against actual intimidation or harassment inside a polling place. If someone in line to vote begins to badger or intimidate a fellow voter, surely it is within the power of government officials to demand that the aggressor cease. But the passive wearing of symbols and slogans as one enters a polling place is not intimidation. We call that democracy.


Rodney Smolla is Dean and Professor of Law at the Delaware Law School of Widener University.

By | 2018-05-01T17:31:59+00:00 May 1st, 2018|First Amendment Trends|Comments Off on Wearing Political Messages Inside a Polling Place