In November 2010, Andrew Cilek, the executive director of the Minnesota Voters Alliance, walked into his local polling venue to cast his vote for that election year. Upon entry, he was quickly turned away before he could vote because of the shirt he decided to wear that day. Mr. Cilek was wearing a “Don’t Tread On Me” t-shirt and a pin that said “Please I.D. Me” (1). Mr. Cilek was told he needed to cover up his shirt before he could come in to vote. He returned later with his lawyer and was able to vote, but not without being cited with a $300.00 fine. Why did it matter what shirt Mr. Cilek was wearing? Because Minnesota Statute §211B.II states that a person can not wear anything political at or around the polling place on primary or election days (2). Mr. Cilek filed a lawsuit against the state claiming that this was a violation of the First Amendment right of Free Speech, which was ultimately, the court dismissed the case, which was upheld by the court of appeals.
This case went up to the United States Supreme Court where it was argued for an hour by Mr. J. David Breemer for the petitioners and Mr. Daniel Rogan for the respondents (3). Mr. Breemer argued that the statutes is overbroad and unconstitutional (3). Mr. Breemer provides examples such shirts saying Chamber of Commerce and Moveon.org are prohibited from the polling venues. Other examples of prohibited attire that was addressed was a shirt with a rainbow flag or a shirt that says “Parkland Strong” (3). Mr. Rogan stated that the shirt would not be prohibited, unless there was a gay rights or a gun control issue on the ballot. Mr. Rogan argued that the statute refers to “political” as anything that has a candidates name, any reference to a specific party, an issue that may be on the ballot for that election, and so forth. It was also revealed that the the election judge at each polling venue is to be the final decision on what is considered “political” within the venue. This gives a wide range of possibilities of what can be worn depending on who the election judge is. Also, every issue addressed on the ballot would have to be known by the election judge.
The Supreme Court ruled in favor of the petitioner and concluded that the statute is overbroad and the term ‘political’ is not clearly defined making the statute unreasonable.
For easy reference, Minnesota statute 211.B.11 states:
“A person may not display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situated, or anywhere on the public property on which a polling place is situated, on primary or Election Day to vote for or refrain from voting for a candidate or ballot question. A person may not provide political badges, political buttons, or other political insignia to be worn at or about the polling place on the day of a primary or election. A political badge, politician buttons, or other political insignia may not be worn at or about the polling place on primary or election day. This section applies to areas established by the county auditor or municipal clerk for absentee voting as provided in Chapter 203B.
Nothing in this subdivision prohibits the distribution or “I VOTED” stickers as provided in section 204B.49.”
In reading this statute do you feel the Supreme Court ruled correctly? Is this statute unconstitutional and violate free speech? Why do you feel the way you do?
(1) Minnesota Voters Alliance v. Mansky, Oyez, (Oct 23, 2019) http://www.oyez.org/cases/2017/16-1434
(2) Minnesota Legislature, 211B.11 Election Day Prohibitions, (Oct. 24, 2019) https://www.revisor.mn.gov/statutes/cite/211b.11
(3) Minnesota Voter Alliance, Et Al., Petitioners, v. Joe Mansky, Et Al., Respondents, Oral Arguemnt-February 28, 2018, (Oct 24, 2019) https://apps.oyez.org/player/#/roberts8/oral_argument_audio/24561
(3) Minnesota Voter Alliance, Et Al., Petitioners, v. Joe Mansky, Et Al., Respondents, Oral Arguemnt-February 28, 2018, (Oct 24, 2019) https://apps.oyez.org/player/#/roberts8/oral_argument_audio/24561
(4) Minnesota Voter Alliance v. Mansky, Opinion Announcement – June 14, 2018 (Oct 24, 2019) https://apps.oyez.org/player/#/roberts8/opinion_announcement_audio/24698
My short answer to your question is simple: Yes, I agree with the US Supreme Court findings that state the “statute is overbroad and the term ‘political’ is not clearly defined making the statute unreasonable.” (1)
ReplyDeleteLacey, interesting and provocative post, especially considering the upcoming presidential election will certainly be a wild adventure given the mood of today’s political climate. I suspect there will be MAGA hats galore at the heart of many polling place complaints as well as Bernie, Biden, or Buttigieg paraphernalia in the mix.
I was once an election judge and the most egregious act that I had to deal with was telling a voter that the polls closed 15 minutes ago, and having to deal with his ire. There was also the constant patrolling of the exterior of the polling place to measure and subsequently remove campaign signs that were less than exactly100 feet from the perimeter of the building’s buffer zone. How I long for the “good-old-days.”
Justice Anthony Kennedy summed-up Mr. Civek’s problem quite succinctly when he asked his peers “Where do we draw the line as to what is permissible?” I suspect an overhaul of election rules will include the overbroad word; intent. Is/was there intent to deliberately display and advocate for a certain nominee or issue on the ballot?
Our beloved hero, RBG, chimed in and asked how far should the principle go? She made a point of asking if a “Me Too” or ACLU pin be banned at Minnesota’s polling places. Elena Kagan joined her and asked about “Make America Great Again” pins. (2) Given that great minds think alike, (yes, I am including myself, lol) I would say that the general feeling is that yes, in fact, the statute is far too broad. Justice Breyer poses another view: He argues that there are restrictions on speech in many places-hospitals, schools, courtrooms. Okay, well, he is not wrong.
Her is the obvious rub: We are working in the margins here! Wherever there are ambiguous rules there are bound to be issues. Where there are issues, there can be challenges. Potentially, Supreme Court challenges. Where does the rule begin or end? What about NRA buttons, will anything pertaining to electoral issues be banned? (2) What about the 80-year-old lady who is innocently wearing her favorite rainbow-colored scarf?
Will we be asked to cover-up at the polls?
Finally, yes, I do feel that the statute in Minnesota is/was overbroad. And, no, I do not have a clue as to what the resolution may be. Clearly, the Justices don’t even agree. The one thing I do know is that polling places have restrictions which enable a peaceful and fair voting process. I am all for whatever it takes.
Woopsie; my citations
ReplyDelete1 https://www.npr.org/2018/02/28/584606124/polling-place-battleground-freedom-of-speech-versus-freedom-from-intimidation
2 https://www.npr.org/2018/02/28/584606124/polling-place-battleground-freedom-of-speech-versus-freedom-from-intimidation
Hmmmm....another one of those type post :) I do believe that the polling places should be free for people to choose their choices without ridicule or pressure. This case, in my opinion, is a waste of resources in our system. If the problem would have been harassment, assault, interrogation, hazing, unsafe environment, bullying, enticement, etc. then this would be a serious issue worthy of the full action of the court. I do not believe the shirt would have adversally affected the polls or an individuals free right of decisions without pressure. Excellent post Lacy and Excellent response by Nana!!
ReplyDeleteYes great post and great response Nana! I agree with the Supreme Court ruling and I do think that it is a violation of the first Amendment for freedom of speech. If someone wants to wear a hat or t-shirt that clearly displays their political views they should be able to. If I gotta look at a MAGA hat I should be able to wear something expressing my views as well. When people go to vote they usually know who they are voting for. I don't think that is going to change someone's decision last minute going into a booth. ( I could be wrong but I don't think so) I agree with Cain that is a waste of resources in our system.
ReplyDeleteGreat post Lacey. I agree with the Supreme Court as well. The statute is far too broad. At the same time I can see how some clothing could spark concerning behavior among voters if their views are different.
ReplyDeleteOn one hand, banning what someone can wear because it might be considered political seems highly unconstitutional and violates our freedom of speech. However, on the other hand clothing that reads anything or has a symbol can be misinterpreted and it is better to err on the side of caution. In Andrew Ciliek’s case, I don’t really see the issue, but again how it was interpreted can vary especially if it’s up to the election judge, which is also too broad.
Bottom-line, it comes down to people’s behavior at the polling places more than what they are wearing. However, I understand the safety concern at polling places that could unfold from wearing political attire. Therefore, I understand banning anything political that is on the ballot as long as it is made clear what those bans are, which will vary from state to state.
More reason we should all just vote by mail!
In response to your question, succinctly answered "yes" the Supreme Court ruled correctly. In Chief Justice Kennedy's decision for the majority he states, "Minnesota, like other States, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law capable of reasoned application" (1). I agree certain limited restrictions around and in polling places is pragmatic. However, the term "political" can encompass a wide swath of undefined nuances and outliers varying from election cycle to election cycle, it is prudent to limit the political buffer zone to specific campaign materials on the ballot. Once states or municipalities wade into the muddy waters of arbitrary "political" attire judgment, there is bound to be intense debates on the scope of political messaging and targeting. "A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot it is not reasonable"(2). Likewise, I think in most cases asking someone to cover up or leave the polling station conversely attracts more attention to the unwarranted political message than the initial message.
ReplyDeletePolitical policing beyond reasonable limits may further impede voter turnout. Creating additional barriers to voting based on clothing, mitigates the overall importance of voting and freedom of speech. Nationally voter turnout hovers around 45% (3). In 2014 Utah had the third lowest voter turn out, "Only 28.8 percent of the voting-age population actually cast ballots" (4). Utah has under 1.5 million active voters and only 30 to 40 percent regularly vote (5). Increasing hurdles to voting per the possibility of political persuasion does not seem to aptly justify the broad application of banning all possible symbols of political attire.
Furthermore, it is dismissive of the voting populace to assume merely seeing a political message sways votes. I think the majority of voters have their minds made up before going to the polling station or with today's smart phone access, would look up information on candidates or issues while standing in line or in the voting booth more so than basing voting off of seeing politically interpreted clothing. While the psychological ramifications most likely exist to a degree and hence the caution, I believe the impact is overly stated. In a 2012 Journal of Experimental Psychology a study was done on enclothed cognition - the systematic influence that clothes have on the wearer's psychological processes (6). The overall finding of the study showed how the psychological process influenced the wearer more than the non wearer. For example, when a person wore a lab coat attention was increased. But "attention did not increase when the coat was not worn." In other words, "the influence of clothes thus depends on wearing them and their symbolic meaning." So it could be conceivably construed that the person wearing "political attire" is influenced far more than the non-wearer diminishing the perceived influence or priming based on political clothing or pins.
Finally, as more and more states turn to vote by mail or other voting options, polling stations and the debates surrounding what is deemed as politically free venues may disappear. Utah introduced vote by mail in 2013 based on "primary advantages are convenience, cost savings, and voter turnout. Utah is one out of twenty-two States that has this option available and interestingly enough four States (California, Colorado, Oregon, and Washington) hold all elections by mail only" (7). As states utilize newer forms of voting trending away from polling stations, the issues in Minnesota may soon become living room fashion police fodder rather than court room cases.
References in separate post as character limit was reached
Delete(1) https://www.leagle.com/decision/insco20180614d77
(2) https://www.leagle.com/decision/insco20180614d77
(3)https://elections.utah.gov/party-and-status
(4) https://archive.sltrib.com/article.php?id=1873023&itype=CMSID
(5) https://www.census.gov/library/stories/2019/04/behind-2018-united-states-midterm-election-turnout.html
(6)https://www.sciencedirect.com/science/article/pii/S0022103112000200
(7) https://www.skymailint.com/2018/06/history-of-voting-by-mail-in-utah/
I have to agree with everyone and say yes I'd agree with the Supreme Court on this as well. The broad term of political in this situation would easily trample on freedom of speech. "Don't tred on me" along with the Gadsden Flag has been around since the colonilism and has a long history of changing meanings. It in itself is pretty broad and has been used recently for US soccer. Labeling something as political can be broad and can be applied to a lot of clothing or phrasing depending on who is reading it. I think the supreme court was right in stating such. When it comes to voting I think anyone who is able to who shows up regardless of clothes should be allowed to vote. Restricitng people on voting is the last thing the US needs right now.
ReplyDeleteAlso https://www.newyorker.com/news/news-desk/the-shifting-symbolism-of-the-gadsden-flag is a good article on the history and changing of the "don't tred on me" which is famous for the Gadsden flag