In 2010, Advocates in Minnesota, planned to have supporters wear buttons to the polls printed with the words “Please I. D. Me,” a picture of an eye, and a telephone number and web address for Advocates. (Minnesota law does not require individuals to show identification to vote.) One of the Advocates also planned to wear a “Tea Party Patriots” shirt.
Minnesota law prohibited individuals, including voters, from wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day. This “political apparel ban” covers articles of clothing and accessories with political insignia upon them only within the polling place. State election judges have the authority to decide whether a particular item falls within the ban. If a voter showed up wearing a prohibited item, the election judge was to ask the individual to conceal or remove it.
Immediately prior to the 2010 election, the Advocates challenged the state law and its regulations requesting that a federal district court issue a temporary restraining order, which was denied leaving the state law in effect during the 2010 election. On Election Day, some voters ran into trouble with the ban, including petitioner Andrew Cilek, who allegedly was turned away from the polls for wearing a “Please I. D. Me” button and a T-shirt bearing the words “Don’t Tread on Me” and a Tea Party Patriots logo.
Advocates again asked the district court to declare that the ban was unconstitutional on its face, which was denied a second time. An appeal was taken, ultimately reaching the United States Supreme Court to determine if the “political apparel ban” on its face violated the free speech rights of the Advocates under the First Amendment
The United States Supreme Court determined that the polling place was a non-public forum that is not by tradition or designation a forum for public communications. In such a forum, the government has flexibility to craft reasonable rules and may reserve the forum for its intended purposes as long as the regulation is not an effort to suppress expression because public officials oppose the speaker’s views.
The Court recognized that some forms of advocacy could be excluded from polling places in order to set aside an “island of calm in which voters can peacefully contemplate their choices.”
“Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning.”
Even though the Supreme Court recognized that it was possible to craft a ban, in a limited forum, the Minnesota law was not sufficiently specific because the term “political” was undefined making the law ambiguous subject to individual interpretation by electioneering judges; therefore, the law was unconstitutional on its face.
With the Missouri August 2018 primary election coming up within days and the general election in November a question arises how Missouri law would fare in the event there are problems or challenges.
Missouri law on electioneering prohibits the following activities near or in polling places.
“(18) Exit polling, surveying, sampling, electioneering, distributing election literature, posting signs or placing vehicles bearing signs with respect to any candidate or question to be voted on at an election on election day inside the building in which a polling place is located or within twenty-five feet of the building’s outer door closest to the polling place, or, on the part of any person, refusing to remove or permit removal from property owned or controlled by him, any such election sign or literature located within such distance on such day after request for removal by any person;”
Missouri law on electioneering would seem to fare much better then the Minnesota law because the terms in the Missouri law are well written and not ambiguous.
The United States Supreme Court indicated that other state laws that would seem to pass constitutional muster. The Court also stated in it’s opinion that laws limiting electioneering activities in polling areas would appear to be reasonable, if properly drafted. On its face, Missouri law seems to be limited to “electioneering” related to the election activities taking place within the polling area or within 25 feet of the building’s outer door to the polling area. Missouri’s law on electioneering seems to do that without creating ambiguity like the Minnesota law.
Howard Wright © 2018
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My impression is that if a state law similar to Missouri’s is enforced reasonably, it will probably be upheld. But even Missouri’s law, if interpreted by standards similar to the way the Minnesota law interpreted, could be found unconstitutional. According to the Minnesota election judges, tea party themed apparel, e.g., a Gadsden flag, could be considered “political apparel”. Yet Missouri issues a Gadsden flag (Don’t Tread on Me) license plate. Would parking a vehicle with such a license plate within 25 feet violate the rule? What about someone who printed a picture of their state issued license plate onto a t-shirt and wore it into the polling station?
As long as the election judges only prohibit items that mention a question or candidate explicitly, I think it likely to be upheld. But if they start trying to ban symbols that have multiple contextual meanings or historic usage unaffiliated to any present question or candidate, they will be on less firm ground.
As a final note, the court seemed especially bemused by MN’s agreement that while wearing the text of the first amendment on a t-shirt would be OK, wearing the text of the second amendment would not be allowed.
Thank you for your thoughtful question.
The Missouri statute is very narrow leaving little room for broad interpretations that created the problems like they had in Minnesota. The Missouri statute limits its applicability to “…signs with respect to any candidate or question to be voted on at an election on election day….” I do not see how elections officials in Missouri could ban signs on clothing, hats or other materials that did not “pertain to a candidate or a question to be voted on at the election.” Seems to me that the statute implies that before enforcement the person wearing the materials should be asked to leave or remove the materials; therefore, I think the statute is on its face constitutional because it is narrow.
Nevertheless, it is always possible that a rogue election official might improperly apply the law by giving it an excessively broad interpretation not justified within the language of the statute. In this case, the application would be subject to challenge. This type of challenge is referred to as an “as applied” challenge, which generally does not affect the validity of the statute.
More specifically to your question, I do not think display of the Gladsden flag or a tea party statement would violate the statute if displayed within the prohibited area (inside the building or within 25 feet of the entrance). I’m not aware of any interpretations by the Missouri Atty. Gen. or the Secretary of State that would prohibit the display of these materials.
On the other hand, a T-shirt stating vote Democrat or Republican would seem to me to cross the line since in Missouri you can vote a straight ballot and candidates are listed as Republican or Democrat.