Last June, the Supreme Court of the United States ruled that banning political apparel at a polling place violates the Free Speech Clause of the First Amendment and is, therefore, unconstitutional. Town clerks, presiding officers, and election officials should be aware of how this decision will affect their actions when overseeing an election in Vermont.
The case, Minnesota Voters Alliance et al., Petitioners v. Joe Mansky, et al., 585 U.S. ___(2018), started when plaintiff Andrew Cilek was temporarily prevented from voting at the polls on Election Day for wearing a “Please I.D. Me” button and a t-shirt depicting both the phrase “Don’t Tread on Me” and a logo of the Tea Party Patriots, which is a political advocacy group within the Republican Party. Minnesota law prohibits individuals from wearing a “political badge, political button, or other political insignia” inside a polling place. The law did not define the word “political” but, rather, granted election judges the discretion to decide if an item fell within that category. Plaintiffs challenged the ban, arguing that it unconstitutionally violated the free speech clause of the First Amendment.
In reviewing the plaintiff’s claim, the Court employed its forum-based approach for assessing the restriction on his free speech. Courts use this analytical tool to determine the constitutionality of restrictions on speech imposed on government property. Generally, there are three types of government forums: traditional public forums (parks, streets, and sidewalks), designated public forums (spaces the government has intentionally opened up), and nonpublic forums (spaces reserved for government purposes).
Restricting speech in traditional and designated public forums is exceedingly difficult, and the government’s regulations on the content of speech “must satisfy strict scrutiny” (that is, regulations must be narrowly tailored to serve a compelling state interest). However, the government has more flexibility in restricting speech in a nonpublic forum where such regulations need only be reasonable and not discriminate on the basis of the speaker’s viewpoint. In Mansky, because the law only applied in a nonpublic forum (inside a polling place), the reasonable test was applied. Therefore, the Court had to determine whether the ban was reasonable in light of the purpose served by the forum: voting.
The Court determined that Minnesota could prohibit certain apparel inside the polling place in light of the very special purpose of voting. “Casting a vote is a weighty civic act, and the State may reasonably decide that the interior of a polling place should reflect the distinction between voting and campaigning.” Restricting “some forms of advocacy” and “at least some kinds of campaign-related clothing and accessories” for this purpose, the Court held, was not unconstitutional. However, it was concerned that the undefined term “political” in the law could result in election officials inconsistently or selectively applying the ban.
Even though the State of Minnesota had provided a policy to help election officials identify which items fell within the ban on political apparel, the Court was unconvinced that the policy sufficiently narrowed the term “political” so as to not violate free speech. As the Court explained, “[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.” Consequently, the Court found that the use of the “unmoored” term “political,” together with unclear policy guidance, could lead to inconsistent application of the ban, and thus was an unconstitutional violation of the First Amendment.
What does this mean for Vermont election officials and presiding officers at a polling place?
Vermont law (17 V.S.A. § 2508(a)(1)(A)) contains a somewhat similar prohibition on wearing campaign paraphernalia and other political materials inside the polling place.
With respect to this law, Will Senning, Director of the Elections Division of the Vermont Secretary of State’s Office, said,
“In consultation with our office, the legislature recently amended 17 V.S.A. § 2508(a)(1)(B) to make it clear that solicitation of voters in the polling place involving non-election related activities is permissible. This will be particularly important for annual town meetings, where there are long-held traditions of things like bake sales, 4H club sign-ups, and, of course, the Doyle poll. While the prior language barring solicitation of any kind in the polling place arguably prevented these very common traditions on Town Meeting Day, the current language makes it clear that this type of solicitation is allowable. Still, any solicitation regarding a candidate or question on the ballot is prohibited.”
Pursuant to the ruling in this case, the provision related to “other political materials” will also probably need the same qualifying language.
The Vermont prohibition appears to serve the same permissible objective as Minnesota’s ban: separating campaigning from voting. The Elections Division provides guidance to presiding officers about how to interpret this statute. Director Senning advises presiding officers,
“We now have more specific guidance regarding the types of apparel that are not allowed in the polling place. Under the court’s analysis, you may only disallow apparel or other campaign material that refers to a candidate on the ballot; a question on the ballot; or an organized political party (Democratic, Progressive, Republican, Libertarian, Liberty Union, Green Mountain). Other more generic political apparel or material, like a “Don’t Tread on Me” shirt or a “MoveOn.org” hat, should be allowed.”
When a voter enters a polling place in Vermont, the presiding officer will have to make her or his best judgment about whether or not someone’s button, t-shirt, actions, and/or words are prohibited inside the polling place. In some instances, a presiding officer’s determination that campaign speech is prohibited by Vermont law will be easy. “Vote Yes on Article 2” or “Vote for Candidate X” are clearly prohibited. The decision might be less clear in other situations. When those instances arise, MAC encourages you to contact the Elections Division’s office at 802-828-2363 or sos.elections@sec.state.vt.us for guidance.
The Mansky case is archived at www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf.
Susan Senning, Staff Attorney I
Municipal Assistance Center