Election-apparel ban struck down, similar Texas law still in force

The U.S. Supreme Court on Thursday struck down a Minnesota law that bans T-shirts, buttons and wearable political messages in polling places, but Texas officials believe the ruling will have no immediate impact on a similar Lone Star law.

The 7-2 ruling said the Minnesota law improperly infringed on the free speech rights of voters because it was too vague, banning undefined “political” messages that left too much to the interpretation of election officials at each polling place.

“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 is not reasonable,” Chief Justice John Roberts wrote for the majority.

But Roberts’ opinion still left room for states to limit politically inspired apparel to promote “the special purpose of the polling place” and allow voters to focus on the important decisions they have to make.

Voting, he wrote, “is a time for choosing, not campaigning. The state may reasonably decide that the interior of the polling place should reflect that distinction.”

The Texas secretary of state’s office, which interprets election law, believes the Texas restrictions on polling place electioneering remain in force because they are more specific than those in the voided Minnesota statute.

“Electioneering includes expressing preference for or against any candidate, measure or political party,” agency spokesman Sam Taylor said. “An election judge or early voting clerk in Texas has the authority to ensure that electioneering is not occurring inside or within 100 feet of a polling place.”

Since 1987, Texas has barred the wearing of a “badge, insignia, emblem or other similar communicative device” that relates to a candidate, ballot item or political party. Violators can be charged with a Class C misdemeanor, which carries a fine of up to $500 but no jail time.

Joseph Fishkin, a University of Texas law professor who specializes in voting law, said the Texas statute is “in better shape than the law that got struck down” because it avoids the ambiguous language that the court took exception to in Minnesota.

By narrowing its focus to messages about candidates, ballot measures and political parties, the Texas law appears to be within the boundaries of limits acceptable to the Supreme Court, Fishkin said.

In fact, Roberts listed the Texas law as an example of states that limit polling place apparel “in more lucid terms” than Minnesota, though he stopped well short of endorsing the Lone Star limits as constitutional.

“We do not suggest that such provisions set the outer limit of what a state may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a state wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here,” he wrote.

Roberts noted that unlike the more specific Texas law, Minnesota prohibited “political” badges, buttons and insignia — a vague, undefined term that could have almost unlimited sweep.

“Under a literal reading of those definitions, a button or T-shirt merely imploring others to ‘Vote!’ could qualify,” he said.

Election workers must instead be given “objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as ‘political,’” Roberts wrote.

A dissenting opinion by Justice Sonia Sotomayor, joined by Justice Stephen Breyer, said the court should not have ruled without giving the Minnesota courts a chance to determine how the political apparel ban should be interpreted and followed.

In Texas, election judges are encouraged to ask voters to cover up political statements on buttons or T-shirts, which also can be turned inside out or changed.

Travis County election officials have said compliance is rarely a problem, with most voters agreeing to remove a campaign button or hat, zip up a jacket or reverse a T-shirt to hide its message. Masking tape also can be used, and the county provides disposable paper cover-ups, similar to a cape, at polling locations.

Also, to avoid arbitrary enforcement, Democratic and Republican election judges must jointly determine what displays violate the restriction on political messages on clothing, county election officials said.

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