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On February 28, the US Supreme Court heard oral argument in Minnesota Voters Alliance v. Mansky, on whether the Minnesota law outlawing the wearing of “political badges, political buttons, or political insignia” on election day at the polls violates the First Amendment. The State of Minnesota argues the law maintains “an orderly and controlled environment” on election day. The plaintiff alleges this law captures too much free speech in a ban on political apparel. The trial court upheld the law and the Plaintiffs appealed to the Supreme Court.

On election day, the plaintiff went to vote wearing a T-shirt with the Tea Party logo and the words “Don’t Tread on Me.” The poll workers wouldn’t allow him to vote unless he took off the shirt or covered it up. He refused but the poll workers eventually allowed him to vote although they did record his name for possible persecution. No prosecution ever occurred.

For years, restrictions outside the polling place have been allowed to prohibit campaigning. Minnesota’s law concerning inside the polling place has been on its books for many years. Some states also imposed restrictions on wearing inappropriate attire into the voting place.

The plaintiff argues the prohibition leads to arbitrary enforcement on what is appropriate and what isn’t. At oral argument, the justices struggled with the notion of drawing a line as to what complies with the law and what doesn’t. For example, they raised hypotheticals about whether it is acceptable to wear a “Make America Great Again” hat. Or a Colin Kaepernick jersey? The plaintiff argued slogans such as Make America Great Again should be protected as “legitimate speech” allowed in a polling place.

South Carolina has certain prohibitions for actions taken by a candidate or a person at the voting place. No campaigning or distributing materials may occur within 200 feet of the entrance to a polling place. The poll manager is authorized to keep this 200-foot area clear of “political literature and displays”. Further, S.C. Code Section 7-25-100 says it is unlawful for a person “to unduly influence or attempt to influence unduly a voter in the preparation of a ballot.” Section 7-25-80 makes it felony for anyone who is convicted of “threatening, mistreating, or abusing a voter with a view to control or intimidate him in the free exercise of his right of suffrage.” Generally, these laws have balanced the ability of campaigns to campaign against not interfering with one’s right to vote.

The Supreme Court is expected to rule by the end of the summer. By the tough questions raised by the Justices to both sides, it is safe to expect a close decision.