Law

The Supreme Court Is Set to Decide What You’re Allowed to Wear When You Vote

In one of the more interesting First Amendment cases in recent memory, the Supreme Court of the United States will soon decide whether states can prevent voters from wearing non-campaign political paraphernalia when they cast their ballots.

The Court decided last week that it would soon hear oral arguments for the case of Minnesota Voters Alliance v. Mansky. In that case, a Minnesota law states that “a political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” This includes anything which is worn “designed to influence and impact voting” or “promoting a group with recognizable political views.”

The case originates with Andrew Cilek, a Minnesotan and executive director of the Minnesota Voters Alliance who wore a t-shirt to his polling place on Election Day 2010 with a Gadsden Flag and the phrase “Don’t Tread on Me,” as well as a button which read “Please I.D. Me.”

The Supreme Court will take in to account past rulings by multiple state courts

The most relevant precedent and prior Supreme Court case came in 1992, when the Court decided in favor of the government in Burson v. Freeman. In that case, a Tennessee law prohibited campaign materials within 100 feet of polling places on Election Day.

The most important distinction, however, comes in that Tennessee’s law dealt only with campaign speech, while Minnesota’s law deals more broadly with political speech. The only remaining Justice who took part in the Burson case is Justice Kennedy, who ruled in favor of the majority.

His case is now well over five years old, as it was appealed to the Eighth Circuit Court of Appeals in 2013 following a government victory in front of a Minnesota District Court in 2011. After the Circuit Court’s decision in favor of the government, the Supreme Court of the United States declined to hear the case.

The complaining parties then brought the case back in front of the Minnesota District Court in 2014, again losing to the government. The Eighth Circuit agreed once again with the government in 2017, the Supreme Court of the United States reversed into prior abstention, and this time agreed to hear the case on November 13, 2017.

This is doubly notable in that the Supreme Court agrees to hear (or “grants cert to”) only about 80 of the 7,000 or 8,000 cases it receives each year.

(Photo of the Supreme Court building in Washington, DC by Mark Fischer)

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