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Of T-Shirts and Tea Parties

February 27, 2018

OF T-SHIRTS AND TEA PARTIES: MINNESOTA VOTERS ALLIANCE V. MANSKY AND THE MEANING OF “POLITICAL”

By: David A. LaBerge, Volume 102 Staff Member

In Minnesota, wearing political clothing to a polling place can land you a petty misdemeanor and keep you from casting your vote.[1] At least for now. On February 28th, 2018, the United States Supreme Court will hear oral arguments for Minnesota Voters Alliance v. Mansky and will ultimately decide the constitutionality of Minnesota Statute Section 211B.11, which states in part, “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”[2]

This type of statute is not altogether uncommon. Other states have laws that prohibit campaigning in or around public polling places.[3] Notably, in 1992, the Supreme Court upheld a Tennessee law that prohibited “campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or position on a question” within a hundred feet of a polling place.[4] The purpose behind these laws seems to be the creation of neutral, conflict-free spaces, where citizens can vote without intimidation or undue influence.[5] In this case, however, petitioners contend that Minnesota’s law is unconstitutionally broad.[6] Important to their argument is the premise that in failing to adequatley define “political” speech, an enforcement official may find nearly anything in violation of the statute.[7]

I. BACKGROUND

In November 2010, a number of Minnesotans went to the polls wearing buttons reading “Please I.D. Me,” and t-shirts bearing the logo of the regional “Tea Party” association.[8] At least one voter wore a t-shirt displaying an image of the Gadsden flag with the words “Don’t Tread on Me.”[9] As the Eighth Circuit described it, “One [voter] was asked to cover or remove his t-shirt. Another who refused to cover or remove his button had his name and address recorded. Yet another who was wearing both a t-shirt and a button was delayed several hours before voting.”[10]

The petitioners, along with several amici, argue that the statute violates their First Amendment right to freedom of speech.[11] While the Supreme Court has held that the government may curtail that right if it has a compelling interest, it has stipulated that the government must limit the right only to the extent necessary and appropriate.[12]

The petitioners contend that the State’s prohibition goes far beyond what is necessary and appropriate, and argue that its blanket ban on political expression is not the only practicable way to ensure an intimidation- and harassment-free polling place.[13] Additionally, the petitioners voice concern that the statute gives broad discretion to election officials in deciding what constitutes political expression.[14] The way they see it, “the indefiniteness of the term ‘political,’ and the discretion which polling officials have to define and apply that term,” conceivably means the statute could cover just about anything.[15]

The American Civil Liberties Union, writing as amici on behalf of the petitioners, argues that the broad discretion conferred by the statute leaves the door open for either explicit or implicit discrimination. “A phrase that one person may consider to be innocuous or nonpolitical – like “#MeToo” – may appear to another to be an overtly political statement. The same goes for someone wearing a Colin Kaepernick jersey or t-shirts depicting pictures of Andrew Jackson, Bob Dylan, Beyoncé, or the official seal of the U.S. Chamber of Commerce.”[16] This concern is not that far-fetched. In 2008, a Texan wearing a souvenir “Alaska” t-shirt was held up by a poll worker who thought the shirt was a sign of support for Sarah Palin.[17] In 2012, voters wearing shirts with the Massachusetts Institute of Technology acronym “MIT,” were confronted by poll workers who thought the voters were displaying support for Mitt Romney.[18]

Responding to the petitioners’ contentions regarding the meaning of “political,” the Eighth Circuit took the position that a thing’s political nature can be determined by looking to public perception as expressed by the media and opinion polls.[19] It was additionally found that based on the nature of the statue, the burden ultimately falls on the petitioner to overcome such evidence.[20]

II. ANALYSIS

In allowing public perception and the media to determine what is “political,” the Eighth Circuit seems to have confirmed the petitioners’ fear: that there is potentially no limit to the statute’s breadth.

If the Supreme Court decides to uphold Minnesota’s statute, it appears likely that the meaning of “political” will continue to be defined by the media and opinion polls. Such a system poses significant problems and leaves the door open to arbitrary enforcement. For one thing, the media does not treat all things equally. Television stations from Fox to MSNBC have significantly different political leanings. The same goes for newspapers, magazines, and radio shows. If there is one place where a singular phrase or idea may evoke wildly different sentiments, it is in the media. Consequently, using the media as an arbiter does little to distinguish what the word “political” means. If anything, by accepting evidence from such a vast pool of opinion, it broadens the possibilities. Further, linking a statutory definition to media opinion appears to set the stage for potentially ad hoc justifications of discriminatory enforcement. So long as an election official can at a later date find relevant media sources opining on a thing’s political nature, her decision to deny a vote will be largely left unchecked.[21]

If the Court decides that Minnesota’s statute must be more narrowly tailored, the state will presumably proceed to narrow the statute’s definition of political speech. Such an outcome could force Minnesota’s legislators to more closely wrestle with the definition of “political,” instead of leaving the courts to determine broadly whether a group has “recognizable political views.”[22]

III. CONCLUSION

Per the opinion of the Eighth Circuit, the meaning of “political” found in Minnesota Statute Section 211B.11, is appropriately defined not by reference to a set definition, but ultimately by the oracle of mass media. Consequently, when the Supreme Court hears arguments for Minnesota Voters Alliance v. Mansky, it will be hearing arguments not merely on the extent of states’ rights, but on the appropriateness of using the opinions of media and public perception to define statutory terms.

If the Minnesota Legislature is required to more narrowly tailor the statute, they would ideally root the definition of “political” in something more objective than the ever-wavering opinions of the media and public perception—thus creating a more predictable, reasonable, and equitable law.

  1. See Minn. Stat. § 211B.11. ↑
  2. Id. ↑
  3. See Del. Code Ann. tit. 15, § 4942; Kan. Stat. Ann. § 25-2430(a); Mont. Code Ann. § 13-35-211(1); N.J. Stat. Ann. § 19:34-19; N.Y. Elec. Law § 8-104(1); S.C. Code Ann. § 7-25-180(B); Tenn. Code Ann. § 2-7-111(b)(1); Tex. Elec. Code Ann. § 61.010(a); Vt. Stat. Ann. tit. 17, § 2508(a). ↑
  4. Burson v. Freeman, 504 U.S. 191, 193–94 (1992). ↑
  5. Brief of Respondents at 1, (No. 16-1435), 2018 WL 721877 ↑
  6. Brief for Petitioner at 3, (No. 16-1435), 2018 WL 347513. ↑
  7. See id at 26–29. ↑
  8. Minnesota Majority v. Mansky, 708 F.3d 1051, 1055 (8th Cir. 2013); see also Minnesota Majority v. Mansky, 789 F. Supp. 2d 1112, 1117 (D. Minn. 2011), aff’d in part, rev’d in part and remanded, 708 F.3d 1051 (8th Cir. 2013). ↑
  9. See Brief for Petitioner at 2, (No. 16-1435), 2018 WL 347513. ↑
  10. Id. ↑
  11. See, e.g., id; Brief of Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Minnesota in Support of Petitioners at 3, (No. 16-1435), 2018 WL 417279; Brief for Cato Institute, Rutherford Institute, Reason Foundation, and Individual Rights Foundation as Amici Curiae in Support of Petitioners at 2, (No. 16-1435), 2018 WL 417281. ↑
  12. See generally Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987). ↑
  13. See Brief for Petitioner at 31, (No. 16-1435), 2018 WL 347513. ↑
  14. Id. at 26–29. ↑
  15. Id. at 26–27. ↑
  16. Id. at 14. ↑
  17. See id at 27–28, (No. 16-1435), 2018 WL 347513 (citing Jennifer Latson, Houstonian wearing Alaska T-shirt nearly denied a vote, Houston Chronicle (Nov. 4, 2008), http://www.chron.com/neighborhood/cyfair-news/article/Houstonian-wearing-Alaska-T-shirt-nearly-denied-a-1789897.php. ↑
  18. Id. ↑
  19. Minnesota Majority, 849 F.3d at 752. ↑
  20. Id. ↑
  21. Nevertheless, one may argue, if the state’s evidence is weak and inappropriate, the voter should be able to overcome it with evidence to the contrary. However, the voter finds herself in a bind. How is she supposed to establish that something is not political? How does she show the absence of a political connection? Is she supposed to run her own public opinion poll? If so, arguments over methodology and accuracy seem inevitable—and costly. In attempting to argue that something is not political, the best evidence seems to be no evidence at all. Thus, the voter appears best off attempting to establish that the evidence presented by the state does not accurately depict public perception. In essence, the voter is left arguing that the media is unreliable before a court that has already found it reliable. ↑
  22. Minnesota Majority, 849 F.3d at 752. ↑
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