Political Attire Bans: What Can You Wear When You Vote?
November 21, 2018
By: Samantha Becker
On June 14, 2018, the Supreme Court invalidated a Minnesota law that prohibited wearing any “political badge, political button, or other political insignia” inside a polling place on Election Day.” The ban was interpreted to cover a variety of attire, such as t-shirts, buttons, and hats, and versions of the law had been in place for over a century. In a 7-2 decision, with Chief Justice John Roberts writing for the majority, the Court ruled that the Minnesota political attire ban was unconstitutional.
The case was sparked by individuals wearing Tea Party t-shirts and “Please I.D. Me” buttons to a Minnesota polling place. The individuals were asked to cover up their shirts and buttons, and if they refused, their names were recorded.
The Court’s decision focused on the vagueness of the law, stating it was unclear which messages were prohibited and which were not. In discussing this lack of clarity, the Court noted that the law did not even define the word “political.” Minnesota state officials argued that the law was intended to help avoid voter confusion, interference, and distraction. Yet, when asked to distinguish between messages that were barred and those that were not, the state appeared to show inconsistency in its answers. While the Court acknowledged a legitimate government interest in prohibiting certain messages from following a voter into the voting booth, the Court concluded that the Minnesota ban on political attire was not capable of “reasoned application.”
The law had initially been upheld by the 8th Circuit. The 8th Circuit relied on Burson v. Freeman, which upheld a Tennessee law that prohibited the display or distribution of campaign messages within 100 feet of polling places on election day. However, that case did not specifically address the issue of political attire.
The Court’s decision creates some doubts regarding several other state laws that place limitations on the political views voters may wear and express at polling places.
For example, Texas election law prohibits anyone at a polling place from wearing any “badge, insignia, emblem or other similar communicative device” if it relates to a ballot item, candidate, or political party. The Texas Secretary of State’s office has indicated it does not believe the Minnesota case will affect the constitutionality of the Texas political attire ban, because the Texas ban is “more narrowly tailored” than the Minnesota version of the law.
Several other states, including Delaware, Kansas, New York, South Carolina, and Vermont, have similar “electioneering” laws in place, which are generally intended to prevent campaign activities in and around polling places on election day. It is not clear how the Court’s June ruling will impact these laws, particularly those that explicitly restrict political attire. The Court narrowly struck down the Minnesota law because it was unconstitutionally unclear in its application. In doing so, it did not explicitly hold that all political attire bans infringe on free speech, and thus left open the possibility that a well-defined and easily applied ban could be constitutional.
Indeed, Chief Justice Roberts made clear that states may choose to restrict campaign activities inside polling places, so long as those restrictions are reasonable. Therefore, it is entirely possible that other states have struck the correct, constitutional chord with their political attire bans. As of now, the Court has simply said that “if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one offered by Minnesota here.”