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Polling Place Battleground: Freedom Of Speech Versus Freedom From Intimidation

By: Nina Totenberg | NPR
Posted on: Wednesday, February 28, 2018

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Every state has a law creating campaign-free buffer zones outside of polling places — laws the Supreme Court has long upheld.

On Wednesday, the justices tackle similar and even stricter laws that bar “political” apparel inside polling places.

Until the early 1900s, election days looked nothing like they do now. There were no quiet lines of people waiting to vote in curtained-off booths. Instead, election days were raucous, confusing, even violent affairs.

Voters then, as now, often were split into battling ethnic and ideological tribes, except that back then, the battles outside and inside polling places were often physical — coats were torn from people’s backs, ballots snatched from their hands, voters were threatened and, in factory towns, managers often stood at the polling place door to make sure that employees voted the “right way.”

In the late 1800s, states began enacting laws to protect voters from harassment and intimidation. Soon, every state had laws that banned electioneering outside polling places and eventually, most states adopted even stricter laws inside polling places. Among the strictest is a Minnesota law that bars voters from wearing apparel or buttons that bear a “political” message.

Cover up that T-shirt or button

Under enforcement guidelines issued for Election Day, poll watchers were told to ask voters to either cover up or remove any item of clothing, badge or button that supported or opposed a candidate, ballot question or recognized political party or group, including those like the Tea Party or MoveOn.org.

Also banned was any item designed to influence voting, including specifically “Please I.D. Me” buttons. The buttons were distributed by, among others, the Minnesota Voters Alliance, which acknowledged that by wearing the buttons and flashing their identification, they were creating the false impression that Minnesota law requires a photo ID in order to vote.

“I went to vote in November of 2010,” recalls Andrew Cilek, executive director of the Minnesota Voters Alliance. “I was wearing a T-shirt. … It said ‘Tea Party Patriots, Don’t Tread on Me.’ ”

According to affidavits in the case, he was also wearing a “Please I.D. Me” button.

“I simply asked for a ballot, and they refused me twice,” he said. “The only explanation they gave me is that the shirt was political.”

The third time, he came back with his lawyer and was allowed to vote, but his name and address were taken down because the law provides for up to a $300 fine for violating the ban on political apparel. According to the state, the fine has never been levied and was not in this case.

But Cilek and the Minnesota Voters Alliance sued, claiming that his constitutional free speech rights had been violated.

“I think the fundamental principle is that I had a right to wear that T-shirt,” Cilek maintains. His lawyer Wen Fa argues that the Minnesota law unconstitutionally sweeps too much speech into a ban on political apparel inside polling places.

“In addition to just banning campaign-related speech like, ‘Vote for Bush’ or ‘Vote for Gore,’ it bans passive political speech,” Fa said. “For example, the government conceded that this ban would also apply to people wearing shirts featuring the logo of the AFL-CIO or the Chamber of Commerce.”

Yes, says Daniel Rogan, who is defending the apparel ban; he did make that concession, but only if the ballot included a measure that directly involved either the union or the chamber.

A calm environment for voters

There is nothing nefarious about the apparel ban, says Virginia Gelms, the elections manager for Minneapolis. Most people who are wearing a T-shirt, or button, are simply unaware of the rule and when asked to cover it up with a jacket or take it off, they quickly comply and the matter is resolved “without incident.”

Cilek’s refusal to do that, she said, was viewed as “confusing” to voters, “disruptive,” and designed to “draw election judges into a dispute.”

Election officials worried, for instance, that people in line would leave without voting if they thought, erroneously, that they needed a photo I.D. to vote, and hadn’t brought one with them.

Indeed, she said one head election judge told her he was not sure he would serve again if the ban is struck down, because he wouldn’t be able to protect the judges he supervises from getting drawn into political battles. After all, Gelms contends, that is not what polling places are for.

“All those restrictions are there to help election judges manage a calm and efficient process,” she said, “so that everybody who has the right to vote can get in, exercise that right, and move on with their day.”

In the Supreme Court on Wednesday, Attorney Daniel Rogan, defending the ban, will tell the justices that a polling place, like a courtroom or a military base, is not a public forum where people are free to speak their minds.

“The interior of a polling place is designed for one purpose,” Rogan said. “It’s designed to provide citizens a place to make their electoral choices and to ensure that those choices are accurately and reliably tallied by elections officials.”

And he fears that if the Supreme Court were to invalidate the Minnesota ban, the next step would be to revisit the Supreme Court decision that upheld a ban on electioneering within 100 feet of a polling place.

Indeed, the attorney for Cilek would not rule that out.