The U.S. Supreme Court announced Monday that it will determine whether states, including Texas, can ban the wearing political messages on buttons, T-shirts and other clothing by voters while they are inside polling places or within an established distance from the entrance.
The case arose out of Minnesota, where Andrew Cilek was blocked from casting a ballot in 2010 because he was wearing a button in favor of voter ID and a T-shirt with a tea party logo, a Gadsden flag and the words, “Don’t Tread on Me.”
Cilek sued, arguing that the law should be overturned because it violated his free speech rights and was too broad, requiring enforcement based on the subjective judgment by election officials about what types of messages have political overtones.
After a federal district judge and an appeals court upheld the law, Cilek turned to the Supreme Court, arguing that Minnesota’s suppression of political speech was a matter of national importance, particularly because nine other states similarly ban political apparel in and near the voting booths, including Texas.
“Political messages can be found everywhere if one looks hard enough,” Cilek’s lawyers told the Supreme Court. “It is no stretch to think that some voters may be chilled from going to the polling place if doing so could subject them to criminal and civil penalties at an election judge’s whim.”
On Monday, the Supreme Court agreed to hear the case. Oral arguments have not been scheduled, but a ruling is expected before the court’s term ends in late June or early July.
The case has drawn interest because, in addition to the 10 states that ban clothing and buttons with political messages, every state limits political activity in some manner inside and near polling places.
Since 1987, Texas has barred the wearing of a “badge, insignia, emblem or other similar communicative device” that relates to a candidate, ballot measure, political party or the way an election is run. The area of the ban begins 100 feet from the polling place door, and violators can be charged with a Class C misdemeanor, which carries a fine of up to $500 but no jail time.
Texas election judges are encouraged to ask voters “to cover up, change or turn inside out a T-shirt expressing preference for a political candidate, measure or party,” said Sam Taylor, spokesman for the Texas secretary of state’s office.
All Travis County early voting sites and most election day polling places have Democratic and Republican election judges who jointly determine what displays violate the restriction on political messages on clothing, said Travis County District Clerk Dana DeBeauvoir.
“It just keeps things happier that way,” she said.
Asking voters to comply with the law is rarely a problem, said Michael Winn, Travis County’s director of elections. When confronted by an election judge, most will remove a campaign button, zip up a jacket or reverse their T-shirt to hide its message. Others will choose to use masking tape or disposable paper cover-ups, similar to a cape, that are supplied to voting locations, he said.
Once voters are beyond the 100-foot marker outside the polling station, they’re free to display the political message again, Winn said.
Officials from Minnesota and other states that bar political messages under anti-electioneering laws say they should be able to enforce laws that promote neutrality and preserve decorum in the polling place.
The 8th U.S. Circuit Court of Appeals agreed when it upheld Minnesota’s law in February, ruling that the restriction helped protect voters from confusion and improper influence while preserving the integrity of the election process.
The 5th U.S. Circuit Court of Appeals, which includes Texas, has weighed in as well, upholding a similar Louisiana law in 1993. Although the law singled out political speech — a type that is vigorously protected by the First Amendment — the restrictions allowed Louisiana to create “an environment free from intimidation, harassment, confusion, obstruction and undue influence,” the court said.
However, courts in Arizona and Oregon have tossed out similar laws, with the Oregon Court of Appeals ruling that passive displays in the polling place do not coerce or improperly influence other voters.