Will SCOTUS Ban MAGA Hats and #MeToo Pins at the Polls?

When arguing at the U.S. Supreme Court, what, oh, what do you wear?

That was kind of the question during oral arguments in Minnesota Voters Alliance v. Mansky, a case that turns on what voters can wear to the polls. The justices puzzled over the issue, repeatedly asking the lawyers what clothes could be prohibited under the First Amendment.

The problem seems to be, where do you draw the line on political speech?

Polling Place Restrictions

In Minnesota, lawmakers have barred voters from wearing political apparel at polling places. Andrew Cilek, executive director of the group that is challenging the law, was banned for wearing a T-shirt with the Tea Party logo and a campaign button unrelated to anything on the ballot.

The U.S. Eighth Circuit Court of Appeals, aligned with the Fifth and DC circuits, upheld the law. The courts based their reasoning on Burson v. Freeman, a Supreme Court decision that permitted "campaign-free zones."

In arguments in the Mansky case, several justices seemed to support some polling place restrictions. Chief Justice John Roberts said, "maybe, just before you cast your vote, you should be able to have a time for some quiet reflection or to do that important civic obligation in peace and quiet without being bombarded by another campaign display."

Other justices wondered aloud about a "#MeToo" pin, clothing with "Make America Great Again" or another slogan. Justice Samuel Alito's "laundry list of items included a National Rifle Association T-shirt, shirts with the text of the First and Second Amendments and a shirt with a rainbow flag."

A Flashing Hat?

Justice Neil Gorsuch, the latest to put on the black robe, asked about passive messages. Instead of a shirt with a slogan, he suggested a hat with lights.

"What if it were instead a sign on my head, you know, flashing lights?" he posed. "Is that active or is that passive?"

According to lawyers on both sides, at least 10 states have similar apparel restrictions. Some bar voters from wearing campaign clothes altogether.

The Minnesota law bans "political badges, political buttons, or other political insignia at the polling place."

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