Supreme Court Reached the Right Result – But the Opinion Could Have Been Stronger

The U.S. Supreme Court reached the correct result in Minnesota Voters Alliance v. Mansky (2018), striking down a supremely overbroad law that prohibited individuals from wearing political badges, political buttons, or other political insignia at or near polling places.   The state’s interpretation of the law even allowed election officials to ban political expression “promoting a group with recognizable political views.”

Individuals should have the right to wear such apparel – after all it constitutes political speech, which is supposed to be the most protected form of speech or the core type of speech protected by the First Amendment.

The state argued that allowing individuals to wear such political apparel might lead to voter intimidation or harassment.   That argument doesn’t hold water.  Individuals go to the polls, presumably knowing for whom they are going to vote.   Another voter bearing a candidate’s picture or name is not going to impact my ability to vote for the candidate I choose.

If anything, the Court’s decision was not strong enough.   The Court found the law unconstitutional only after emphasizing that the polling place was a nonpublic forum and that the restriction was unreasonable even if it was viewpoint neutral.  A stronger opinion would have resulted if the Court simply had recognized that a complete ban on political apparel must satisfy strict scrutiny no matter what type of forum.

Complete bans on political speech should be subjected to strict scrutiny. The Minnesota law couldn’t come close to passing such a high standard. “People have the right to receive information and ideas about different political candidates, views, and ideas – even close to polling places,” as I explained in an earlier column.   “They certainly have the right to wear political buttons and badges.”

The state had tried to argue that the Court’s earlier decision in Burson v. Freeman (1992) justified the political apparel ban. In Burson, the Court ruled that a Tennessee law prohibiting the distribution of campaign materials and voter solicitation within 100 feet of a polling place.

The Minnesota law presented a much different case, as it banned voters’ own individual self-expression. But, Burson itself was wrongly decided.   People have a right to receive campaign materials and listen to others opinions about political candidates at polling places.   The Court in Burson censored “classic political expression,” as Justice John Paul Stevens remarked in his dissent.

At least, the Supreme Court in the Minnesota case didn’t repeat the same mistake and silence more “classic political expression.”   The opinion could have been stronger, but at least it reached the correct result and struck down this overly broad a complete speech ban.


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