Editorial | Too difficult to enforce

Editorial | Too difficult to enforce

The Supreme Court has ruled that a law on polling-place attire lacks 'objective, workable standards.'

Free-speech issues come in all shapes and sizes, perhaps few more curious than the one from Minnesota decided last week by the U.S. Supreme Court.

In a 7-2 decision, the high court struck down a law that bars voters from wearing attire expressing a "political" opinion at polling places.

The court said the Minnesota law was so broad — Just what is "political"? — that it was "not capable of reasoned interpretation" by election officials.

"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 court majority.

The two dissenters — justices Stephen Breyer and Sonia Sotomayor — favored sending the case to the Minnesota Supreme Court for resolution.

As is often the case in speech cases, the court's decision was determined by balancing competing interests — the individual's right to express themselves versus the state's interest in maintaining order at a polling place. As Roberts noted, a polling place is a private area that is not intended to be a venue for campaign debate but instead a quiet place where voters make their choices based on the debate they heard outside.

"Casting a vote is a weighty civic act, akin to a jury's return of a verdict or a representative's vote on a piece of legislation. It is a time for choosing, not campaigning. The state may reasonably decide that the interior of the polling place should reflect that distinction," he wrote.

The state has a clear right to enforce rules of decorum, including regulating attire worn by voters. But Roberts said the enforcers must be "guided by objective, workable standards." Otherwise, an election judge's "own politics may shape his view on what counts as 'political.'"

The problem with the Minnesota law is that it was so broad that those required to enforce it could not do so in an even-handed manner.

Justice Samuel Alito demonstrated the depth of the problem when he rhetorically tortured one of the lawyers defending the law with hypotheticals about what would and would not be permitted.

While a T-shirt bearing the words "Vote for Jones" would not be permitted in an election in which Jones was running, the rules governing other admonitions raised more questions than they answered.

Would, Alito asked, a T-shirt stating "All Lives Matter" be perceived as impermissibly political? How about a "rainbow" T-shirt expressing support for same-sex marriage? What about a T-shirt bearing the words of the First or Second Amendment to the U.S. Constitution or a picture of former NFL quarterback Colin Kaepernick?

In the Minnesota case, voters wearing T-shirts that read "Don't tread on me" and "Please, I.D. me," a message supporting voter-identification requirements, were asked to cover up but allowed to vote.

They sued, forcing Minnesota to defend the law stating that "a political badge, political button or other political insignia may not worn at or about a polling place on primary or Election Day."

The law was upheld by a federal appeals court based in St. Louis. The appellate panel concluded that even if the "apparel is not election-related, it is not unreasonable to prohibit it in a polling place. In order to ensure a neutral, influence-free polling place, all political material must be banned."

That broad prohibition, while perhaps well-intended, violated the First Amendment's guarantee of the right to free expression. Now, the Minnesota Legislature either must rewrite the statute or ignore the issue and let matters take their natural course.

The court's ruling, clearly, is not groundbreaking because the issue under debate is not momentous. But it demonstrates once again how important free expression is in an open society.

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