Andy Cilek, in 2010, went to vote in Minnesota wearing a tea party t-shirt.
He was twice stopped by a poll worker from voting, and on the third try he was finally
allowed to vote but his name and address was taken down for potential prosecution.
He filed a First Amendment lawsuit against Joe Mansky and other government officials
in Minnesota alleging that Minnesota's broad ban on all political apparel at the polling
place violates the First Amendment.
The law at issue in this case is Minnesota Section 211 B.11 which prohibits voters from
wearing any political badge, button, or other insignia at the polling place.
Minnesota promulgated an election day policy that says political includes groups with recognizable
political views such as the Tea Party, MoveOn.org, and so on.
If a poll worker thinks that someone is voting while wearing political apparel, then that
person writes down the name and address of that voter for potential prosecution.
Minnesota thinks of a violation of this law as a petty misdemeanor which can be enforced
by fines of up to $5,000.
So the government can restrict speech that is not protected by the First Amendment.
For example, things like true threats, obscenity, the Court has not given First Amendment protections
to.
But, in other arenas if the government wants to restrict speech that is protected by the
First Amendment, it needs to show why its regulations are justified, and why those First
Amendment restrictions are justified.
The best argument for Minnesota Voters Alliance was just that this law is so broad that it
is unconstitutional under the First Amendment.
A law is overbroad if it covers substantially more speech than is necessary to further the
government's interest.
The Supreme Court has said that the First Amendment recognizes that free speech is so
important that we don't want the government to pass an overbroad law that stifles the
rights of people to express themselves in fear that they might be prosecuted under a
certain law.
In essence, this law creates a political speech-free zone at the polling place, and political
speech-free zones are inconsistent with the free speech clause of the First Amendment.
The best argument for Minnesota is that Burson v. Freeman, which actually upheld a 100-foot
buffer zone on active campaigning,
might also extend to a law preventing passive wearing of any political speech at
the polling place.
Minnesota relies on the polling place as a nonpublic forum in arguing that it's reasonable
to ban all political messages at the polling place.
A public forum is a forum that has traditionally been used for expressive activity, for example,
a public sidewalk is a public forum.
There's also a nonpublic forum, in which the government opens up its property for only
a limited purpose.
The government argues that because the polling place is a nonpublic forum, any restrictions
on speech need be reasonable and viewpoint-neutral.
The potential impact of this case is quite large.
Nine other states have similar laws to Minnesota, so ruling in this case could affect laws in
ten different states.
And it would affect not just voters wearing Tea Party t-shirts, but it would also affect
voters who want to wear shirts that say, ACLU, NAACP, or even #MeToo at polling places in
their state.
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