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The Right to Style at the Voting Polls Is Imperative

A lengthy line wraps around your local public library where a drowsy poll-watcher ushers you into a makeshift booth. You quietly tick the box for your preferred candidate, hand in your ballot and grab an “I Voted” sticker. The process isn’t sexy or exciting, but a rather monotonous duty. However, this dull and private scene isn’t always how voting in America looked.

During America’s infant years, voting was a noisy, sometimes-violent affair where intimidation and bullying were common. Before 1800, elections were held orally, also known as the “viva voice” method, and those allowed to vote (almost exclusively property-owning white men), yelled the name of the candidate they wanted to see elected. Describing the process chaotic and unorganized is an understatement. At the turn of the century, most states transitioned to a secret, written ballot, but voter intimidation still persisted. Today, all states have laws that prohibit political rallying or protests from being within a certain distance of the polls. Another 10 states explicitly ban what is called “passive electioneering,” which includes wearing politically-themed clothing or buttons to the polls.

In Minnesota, this applies not only to political garb that is directly affiliated with a specific party, but clothing that can be perceived as associated with a specific political party. So if you are wearing a shirt or button that insinuates party advocacy, you could be banned from voting until you cover up or change out of what is deemed political. The statute has been challenged by the Minnesota Voters Alliance (or MVA, a group that claims to be non-partisan) as an infringement on free speech, and by the end of the term the Supreme Court will vote on whether it should be upheld or eliminated. The problem with the statute is two fold; it is unclear on what is meant by “political” and it is unclear whether banning it actually helps maintain order at the polls. The statute simply states “A political badge, political button or other political insignia may not be worn at or about the polling place on primary or election day.” It is all too vague, however, to describe something as “political” and leaves voters open to unfair and targeted policing. And Don Huizenga and his team at the MVA agree, which is why they are working diligently to combat efforts to squander rights to where whatever voters choose to wear. “Implied advocacy cannot be deemed direct advocacy and so the law needs to be changed,” Huizenga says. 
 
The case arose in 2010 when MVA member Andrew Cilek was banned from voting for wearing a Tea Party affiliated "Don’t Tread on Me" shirt and a button that said “Please ID Me,” advocating for required show photo identification at the polls.  The MVA along with other conservative groups in the Election Integrity Watch organization sued the Minnesota Secretary of State, insisting their First Amendment rights had been violated and that the statute was being selectively enforced. Only conservative groups were being turned away at the polls, they said. 
 
Like with many cases, looking at the details of Minnesota Voters Alliance v. Mansky inspired more confusion than clarity. Voters should be allowed a peaceful place to vote, but is wearing a National Rifle Association (NRA) shirt, for example, actually that disruptive? Is sporting a #MeToo button at the polls a form of voter intimidation? It is this exact ambiguity that makes the statue difficult to enforce. There is no concrete rubric which mirrors, for example, the required amount of feet which electioneers must be from a polling place. Instead, poll workers make on-the-spot judgements about what is political and what is not. 
There is relatively little evidence that prohibiting wearing a T-shirt to the polls is necessary to maintain order at the polls.
The Supreme Court has already heard arguments from the Minnesota Voters Alliance, and the Justices are also skeptical about the law uncertain language. According to The New York Times, Justices were trying to get a feel for what exactly would be allowed at polls and what wouldn’t. During the hearing, lawyer Daniel Rogan fielded question from Justices about what clothing would be deemed too political in Minnesota today. An gun-happy shirt would, but a #MetToo shirt may be permissible. A shirt that says the Second Amendment may be seen as too political, but a shirt that says the First Amendment may not. Other Justices wondered why there needed to be any speech at the polls at all, as you are only there to vote.

What the Justices were attempting to uncover was when a law is so vague, how would one know what is too political to wear before heading to the polls? Even further, is this worth policing? Cases like this also challenge one to separate the facts from the plaintiffs. The Minnesota Voters Alliance isn’t an organization with which I would associate. Browse their website and you can click into a Voter Fraud tab that contains stats about ineligible voters and videos like “Vulnerable adults exploited and told who to vote for by Democrats in Crow Wing County, Minnesota.” The group’s “Please I.D. Me” buttons were absolutely meant to intimidate voters by spreading false information. Justice Sonia Sotomayor found the buttons especially objectionable saying that they conveyed “a highly charged political message.” But, were people confused or deterred by their “Please I.D. Me” buttons? Does clothing hold a notable amount of power and if the clothing being policed belonged to those of a political party with which I was affiliated, would I feel different?

Problems with defending apparel at polls has come up more than once in recent elections. In 2012, a confused Denver poll worker stopped a woman wearing a Massachusetts Institute of Technology (M.I.T.) sweatshirt because they thought she was electioneering for Mitt Romney. Another worker stepped in to amend the situation and the woman was allowed to vote. In 2008 in Houston, a woman was stopped for wearing an Alaska shirt because Sarah Palin was running for Vice President. Once again, another poll worker interceded and allowed her to vote. Incidents like these show how identifying what is political may seem obvious to some, but actually casts a wide net.

Arguments from the Minnesota Voters Alliance cited how this case is different than Burson v. Freeman, a 1992 ruling where the Supreme Court upheld a Tennessee sanction that prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of polling places. This ruling was part of an effort to implement a free-speech zone where citizens felt emboldened to vote freely and without pressure. The Tennessee law was upheld because the Supreme Court saw the restriction as a service to voters and the small radius of 100 feet did not totally ban any political activity, therefore did not totally infringe on the First Amendment.According to University of Pennsylvania Professor of Law Dr. Seth Kreimer, laws like this were implemented when voting was a more raucous affair. “During the early 1900s, these mechanisms of social control were a good idea,” he says. And although implementing a free-speech zone is a tool to ensure everyone can vote freely, Kreimer says that it is unclear, even in Burson v. Freeman, that clothing really affected how others voted. “There is relatively little evidence that prohibiting wearing a T-shirt to the polls is necessary to maintain order at the polls,” he says. The Tennessee law mostly had to do with literature, signs, soliciting votes and rioting, not passive electioneering. 

Clothing as an expression of free speech has long been a hot topic in the United States, just not in polling places. In 1969, the case Tinker v. Des Moines challenged Iowa public schools for prohibiting students from wearing armbands that symbolized their protest against the Vietnam War. The court ruled in favor of the students and stated that the armbands represented pure speech and that students did not give up their rights once they stepped on school property. “The Supreme Court says unless you can show that there is reasonable evidence of eminent disruption, you cannot forbid them to wear an armband,” Kreimer recounts.

The same logic can be applied to Minnesota Voters Alliance v. Mansky; unless it can be proven that politically-themed clothing has historically disrupted the polls, it shouldn’t be banned. The entire premise of banning passive electioneering was that someone else's free speech may be infringed upon if any speech is allowed. But if there is no evidence to back that up then what is the harm?The date August 6, 1855 is known as Bloody Monday in Louisville, Kentucky. On this day, the notably xenophobic Know Nothing Party formed armed groups to guard local voting polls, resulting in riots between them and Democrats as well as 22 fatalities.  A majority of those who died were Catholics, as the Know Nothing Party’s primary goal was to keep voting in the hands of Protestants. Today, voting is a less riotous nonevent. Bloody Mondays never happen and voting is viewed more as a civic duty than an impassioned calling. And so if the social norms of voting have changed, shouldn’t the laws that were formed to regulate them?

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