May a state prohibit voters from wearing campaign T-shirts, buttons or other politically-related clothing at a polling place on election day? The U.S. Supreme Court will consider this question in a case to be argued on Feb. 28.
A Minnesota statute provides 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.” In 2010, Andrew Cilek, a Minnesota voter, went to his local polling place wearing a T-shirt that had printed on it, among other things, a Tea Party logo and the expression “Don’t Tread on Me.” He was asked to leave the polling place and come back not wearing politically expressive clothing.
Cilek insisted on being allowed to vote, and the local officials eventually permitted him to do so. He then filed suit in federal court, challenging the statute on First Amendment grounds. Both the federal district court and the appeals court upheld the state law as a reasonable “time, place, and manner” regulation of the conduct of elections — a power given to the states by Article I, Section 4 of the Constitution.
The Supreme Court will hear Cilek’s appeal next week. He claims that, by limiting political expression through restricting what clothing voters can wear at the polls, Minnesota infringes fundamental First Amendment rights. According to Cilek, the statute limits a vast amount of protected, passive and peaceful political speech. He argues that the state’s interest in orderly and fair election administration cannot justify a complete ban on politically-related clothing at the polls.
Minnesota, in response, claims that polling places are not “public forums,” as compared, say, with squares or parks where political rallies and demonstrations are frequently held. Thus, the state may apply some reasonable restrictions to the conduct of voters at the polls.
The statute is designed, among other things, to prevent “surreptitious campaigning” at the polls, for example, a situation in which many voters all wearing the same T-shirt arrive at a single polling place simultaneously. Minnesota also claims the law is “content-neutral,” and does not discriminate among voters on the basis of the particular messages on their clothing.
Many states, including Vermont, have laws prohibiting candidates or their surrogates from campaigning inside polling places, or requiring them to stay a minimum distance away from the entrance to the polls if they are campaigning outside. The Supreme Court has upheld such laws as reasonable regulations of the electoral process. However, these laws regulate active campaigning. The Minnesota law regulates passive speech, as expressed through messages on voters’ clothing.
The Supreme Court will likely issue its ruling in the Minnesota case by June. That ruling could have an impact in Vermont. Vermont election law says that “no campaign literature, stickers, buttons … or other political materials” may be “displayed, placed, handed out, or allowed to remain” inside a polling place.
Although this statute appears to be directed at the distribution of campaign materials in polling places, an FAQ page on the Vermont Secretary of State’s website states that “if you plan to wear candidate paraphernalia, you will have to cover it while inside the building containing the polling place. The polling place is about voting, not campaigning. Once voters have entered the polling place, the campaigns have ended.”
I am not aware of any instance in which a Vermont voter has been asked to leave a polling place because he or she was wearing a button or T-shirt and did not cover it up. Regardless, the Minnesota case raises important questions regarding freedom of speech and election administration. The Supreme Court’s ruling could provide useful guidance to both voters and state election officials regarding election-day political expression inside polling places.
Eric L. Davis is professor emeritus of political science at Middlebury College.