Photo illustration by Slate. Images by Thinkstock and Jewel Samad/AFP/Getty Images.

Free Speech vs. Freedom From Intimidation

The Supreme Court is set to reconsider campaigning at the ballot box. Justice Scalia got it right the first time.

On Wednesday, the Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a case raising the question of whether Minnesota and other states can prevent people from wearing political apparel like a “Make America Great Again” cap or a “pussyhat” to the polling place.

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The question is a close one because it pits the First Amendment right to free speech against the right to vote free of intimidation and interference at the polling place. Considering a similar case in 1992, banning electioneering in areas around polling places Justice Antonin Scalia got it right: Polling places are and have traditionally been “nonpublic forums,” where the state can decide that the right to free speech needs to give way to the tranquility of the election booth. The point is even more urgent in our highly polarized times.

Mansky concerns a complaint of a Tea Party group, the Minnesota Voters Alliance, that sent its members to vote at polling places in 2010 wearing political paraphernalia. This included T-shirts containing Tea Party messages, such as “Don’t tread on me,” and a button saying “Please I.D. Me,” even though Minnesota has no voter ID law. Poll workers asked the voters to cover up their political messages while voting because of a state law, which bans electioneering at and around polling places. Among other things, the law says 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.”

Political speech is perhaps the most protected form of speech under the First Amendment, but the right to vote free of intimidation and in tranquility is also compelling. The Supreme Court recognized this point in Burson v. Freeman, which upheld against a First Amendment challenge a 100-foot campaign-free buffer zone around polling places. The case was an unusual one in that a plurality of the court applied “strict scrutiny” to the Tennessee law and still upheld the law. Strict scrutiny is usually said to be “strict in theory and fatal in fact,” but in this case, it was the former.

The usual stalwarts of the First Amendment, including Justices Anthony Kennedy and Antonin Scalia, concurred separately to uphold the law. Justice Scalia’s opinion was especially notable, because he recognized that polling places—and the areas around them—traditionally were “nonpublic forums,” places where the government can stop political expression for important reasons so long as the government does not discriminate among viewpoints. If Minnesota had sought to ban Tea Party paraphernalia but allowed “MoveOn.org” T-shirts, that would have clearly been unconstitutional.

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In upholding the Tennessee law, the court recognized that there’s a time and a place for everything and that states are free to determine when someone who is trying to cast his ballot is allowed to be free from intimidation or even attempted persuasion. The dissenters—Justices John Paul Stevens, Sandra Day O’Connor, and David Souter—thought the 100-foot area was too broad and that such a large buffer zone was unnecessary given the legitimacy of “heightened regulation of the polling place” itself. Stevens added that “there is no disagreement that the restrictions on campaigning within the polling place are constitutional.”

In many ways this case is even stronger than Burson, because it involves not the area around polling places but polling places themselves, and because voting has only become more contentious in the intervening years. As a Brennan Center brief in Mansky points out, “Please I.D. Me” buttons are part of a political movement raising fears of voter fraud, and such buttons can both intimidate and confuse voters and poll workers. But more generally, a voter should not have to come into the polling place to face a group of voters—or even poll workers—wearing campaign buttons or shirts. No one should feel pressure at the polling place to vote one way or another.

The difficult part of this case comes with the discretion given to polling-place officials. The ban applies not just to campaign messages but also to other political T-shirts. So one poll worker may decide that someone wearing a #MeToo button is too political, but another may not. This could allow for selectivity and arbitrariness at the polling place.

One potential solution to this problem suggested by campaign finance opponent Jim Bopp is for the Supreme Court to construe the statute to apply only to messages of express advocacy, like “Vote for Trump” or “Clinton 2016.” This is no solution, however. Everyone knows that a MAGA hat is Trump campaign gear and a pussyhat opposition to Trump, even if they do not contain express words of advocacy. Indeed, if the court construed the statute to apply only to express advocacy, it would become totally ineffective.

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The solution here is for state officials to train election workers to recognize political statements and apply the ban evenhandedly. If there is any evidence of viewpoint discrimination—say against Tea Party messages at Democratic-leaning polling places—then it would be time to bring a new lawsuit challenging the law as applied on the ground.

There is a time for politicking and a time for voting. A ruling for Minnesota would ensure that states can recognize the tranquility of the ballot box, especially at a time where our national politics are heated to the point of inspiring violence at the voting booth. Justice Scalia is gone, but let’s hope that the Supreme Court’s remaining First Amendment stalwarts continue to recognize this sanctity.