As we run the home stretch to Election Day 2020 (November 3! Don’t forget to vote! And vote down ticket, too! Local races are important, as are ballot question! You can also volunteer to be an election judge, or take part in voter protection projects. Make every vote count by making them count every vote!)
O.K., that opening line got hijacked by PSAs. Let’s start again.
As we get closer to election day, we have a fun decision to make: what to wear to the polls. I don’t just mean coordinating your mask with your outfit. I mean whether wearing a t-shirt that expresses some suitable sentiment depending on your politics might violate your state’s election rules. The situation is especially complicated this year as this is the Presidential election year since the Supreme Court decided MN Voters Alliance v. Mansky (2018) (opinion here). While this is not legal advice, I thought it might be helpful given the current circumstances (especially the likelihood of extremely aggressive poll watchers eager to challenge folks advertising their sympathy for the other side and a shortage of election judges due to COVID to resolve the challenges quickly) to review some basics to avoid hassle. Sure, if you prefer to be a test case rather than necessarily get to vote, you should wear that “Ruth Sent Me” or “Blue Lives Matter” t-shirt. But you should know what you are potentially getting into, first.
More below . . .
What Is The Issue With Clothing?
Pretty much every state has laws that restrict campaigning or distribution of campaign materials in the actual polling place (and often in a limited zone around the polling place). The Supreme Court has found that states have an interest in providing voters with “an island of calm in which voters can contemplate their choices.” You might ask what harm a t-shirt or a hat or a mask can do. But imagine a large group of people wearing t-shirts saying “Vote Trump or the Boogaloo Begins Nov 4″ in big letters. It is not unreasonable to say that some people could find this intimidating. And even if it is not intimidating it does not lend itself to the “island of calm” idea. The whole point of these laws — a purpose approved by the Court — is to provide people with a chance to get away from the advertising and noise and think about their choices without any kind of distraction or pressure. It is also about protecting the “sanctity of the polling place.” The reason these laws were passed in the late-1800s and early-1900s in the first place was because crowds of people would routinely gather to give people supporting the other party a hard time and generally transform the polling place into a raucous shouting match. It’s not a leap to imagine something similar happening today.
But while the Supreme Court says some limited, content neutral restrictions on apparel are OK, they can’t be too broad or give election officials too much leeway to make arbitrary decisions about what is permissible and what isn’t. The MN law at issue banned wearing any “political badge, political button or other political insignia.” At issue were an organized group of Tea Party supporters (who created the MN Voters Alliance) wearing a “Please I.D. Me” button (at the time, MN had no voter ID law) and pro-Tea Party t-shirts. MN argued that these were political and clearly understood to be advocating for specific issues (and, by extension, candidates), even though they did not actively endorse any specific candidate, party or ballot question.
The Supreme Court in Mansky held that the term “political” as used in the MN law was too vague to survive First Amendment scrutiny even using the “non-public forum” standard and taking into account the state’s interest. The Court noted that the guidance provided by the state in 2010 could apply to any topic mentioned by a candidate or any organization considered political even if the organization had not endorsed a candidate or specific position. The law, according to the Court, required election judges to “keep a mental index” of every issue, and to make judgment calls on whether something was sufficiently “well known” to suggest a political position. As the court observed, even with election judges trying diligently to apply the law in a fair and neutral matter, it would be inevitable that judges would apply the law inconsistently, and that a judge’s own political opinions would influence the election judge’s determination.
Unfortunately, while the Mansky Court found the MN law too broad, it did not describe how narrowly tailored the law (or its application) needs to be to survive constitutional scrutiny. That’s not unusual, especially given a case briefed on particular facts around a particular law. Unfortunately, it makes the law rather confusing for awhile while the courts work it out. Here is what the Supreme Court said about laws governing apparel going forward:
That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election”). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here.
So the line sits somewhere between “very specific to candidates or ballot questions only” and “I know it when I see it.” Swellness.
What Does This Mean for 2020?
In keeping with the theme for 2020, we get to figure out the new standard in an election completely disrupted by COVID, where distrust is at maximum and good will non-existent. We have a President already accusing the other party of plotting fraud and undermining confidence in the integrity of any election that does not make himself the winner, and conservative media amplifying these accusations. Meanwhile, Democrats warn that Republicans are intent on “stealing the election” and embarking on an aggressive campaign of voter suppression. Foreign bot factories use social media to inflame passions on all sides with the express purpose of fomenting election-day chaos and undermining everyone’s confidence in the outcome. the situation is so inflamed that the neutrality of this description no doubt offends lots of people because it should be bloody obvious whose fault it is and all this “neutral” stuff is just enabling all their wickedness further.
Setting this last point aside, what this means as a practical matter is that it is hard to have a clear rule on what is or isn’t permissible in terms of “political apparel” across the 50 states, and even the question of what the rule is in your specific state may have lots of possible interpretations.
States also vary a lot in how they enforce their laws and what the penalties are. In some states, they may not let you into the balloting area if your apparel violated the state law. In other states, they mark you down for inquiry and you may be subject to a hearing an administrative fine, but you still get to vote and have your ballot cast. To make this even more fun, the oldest, most experienced election judges and poll workers who have years (or even decades) interpreting and enforcing the state specific rules are the ones most likely to be absent this year because of COVID. This increases the likelihood that highly aggressive poll watchers or partisan poll workers will make frivolous challenges and misapply the law.
Do You Want to Be a Test Case? You Don’t Have to Be a Test Case.
This is a year when we desperately need to make every vote count and do our best to make it as easy as possible to get your vote in and counted. The question isn’t whether or not you would ultimately prevail in a challenge. The question is whether you want to give the other side an opening to challenge you, waste your time, hold up the line, make a ruckus, and possibly prevent you from voting or discouraging others from voting. As my father always told me growing up: “you’re just as dead in a traffic accident whether or not you had the right of way. Sometimes it is necessary to yield to the schmuck.”
I’m not saying you need to overthink this. I also recognize that in the social media age where a small group of white power supremicists can hijack the OK symbol, it is virtually impossible to keep track of everything that might, somehow, be construed as “political” messaging. But there is a difference between being too scared to wear anything but a business suit and deciding to push the envelop. What prompted my writing this post was seeing indications on social media that there was an effort to have people wear t-shirts saying “Ruth sent me” to honor Justice Ruth Bader Ginsburg. Is that “political” under your state’s apparel law? I have no idea. But given the enormous prominence given to filling her seat and both Presidential candidates campaigning heavily on when to fill the seat and with whom, it’s not a huge stretch to imagine aggressive poll watchers making the challenge. A Hawaiian shirt? Got me. A shirt saying “I have 15-17 points?” Given that no one besides me and a handful of other old fogies play bridge these days, the fact that this is reference to bidding “1 no trump” probably survives by obscurity — unless an aggressive poll watcher is likewise an old fogie.
Also, if you feel strongly about standing up for your First Amendment rights, then feel free to push the boundaries and be the test case. But I strongly recommend researching your state and local laws first so you can know what the boundaries are and what the risks are. If you’re not a lawyer, you might want to consult one — and have one standing. by when you go to vote. If nothing else, bring along a sweatshirt to cover the “political” t-shirt or an alternate mask if you are wearing a political mask. As far as I know, no state can take away your right to vote (or place in line) if you cover or remove the challenge apparel.
There are a lot of good reasons to show support for candidates or causes with your apparel. But it’s even more important to make sure you vote and that vote gets counted. Wear that “Ruth Sent Me” t-shirt to your Zoom victory party. Or if you do want to wear it to the polls, at least know what you might be getting into first.
Stay tuned . . .