Minnesota, a mondo-liberal state, has a law that bans people from wearing politically themed tee-shirts at polling places when they go to vote. No, of course this does not violate the First Amendment. How could it, since it is applied equally across the board, no matter what the political message might be. Right? Um, maybe not so much.
The statute is being challenged before the U.S. Supreme Court in Minnesota Voters Alliance v. Mansky. A man named Andrew Cilek attempted to vote in 2010 wearing a shirt that bore an image of the "Don't Tread on Me" flag from pre-revolution days and wore a button that said "Please I.D. Me." A poll worker told him he had to remove the shirt and button. Hat tip to Hot Air.
Cilek, being a reasonable person, sued, contending that the standard for enforcement was arbitrary because poll workers are chosen by local political parties. To say the least, Minnesota's attorney before the Supreme Court recently didn't do much to dispel that notion. In fact, he pretty much made Cilek's case for him:
So the First Amendment is OK, but the Second Amendment isn't? No NRA shirts, but Parkland Strong is OK? I don't know who Mr. Rogan is -- presumably someone in the office of the Minnesota Attorney General, or at least someone in the employ of that office -- but he did a really shitty job of arguing that the law is even-handed in barring political speech at polling places. In fact, a law based on the content of speech would be suspect to begin with. One that is defended in the manner that Mr. Rogan employed likely is doomed from the beginning. Rogan made it clear that enforcement will be arbitrary, as Mr. Cilek contends, or worse, that it will skew in favor of leftists in enforcement.JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?
MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.
JUSTICE ALITO: How about a shirt that says “Parkland Strong”?
MR. ROGAN: No, that would — that would be — that would be allowed. I think - I think, Your Honor -
JUSTICE ALITO: Even though gun control would very likely be an issue?
MR. ROGAN: To the extent -
JUSTICE ALITO: I bet some candidate would raise an issue about gun control.
MR. ROGAN: Your Honor, the — the - the line that we’re drawing is one that is - is related to electoral choices in a -
JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?
MR. ROGAN: The — the Parkland?
JUSTICE ALITO: Yeah.
MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not -
JUSTICE ALITO: Okay. How about an NRA shirt?
MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -
JUSTICE ALITO: How about a shirt with the text of the Second Amendment?
MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be -
JUSTICE ALITO: How about the First Amendment?
MR. ROGAN: No, Your Honor, I don’t - I don’t think the First Amendment. And, Your Honor, I -
CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?
MR. ROGAN: It would be allowed.
CHIEF JUSTICE ROBERTS: It would be?
MR. ROGAN: It would be. And — and I think the — I understand the — the idea, and I’ve — I’ve — there are obviously a lot of examples that — that have been bandied about here –
JUSTICE ALITO: Yeah, well, this is the problem. How about a Colin Kaepernick jersey?
MR. ROGAN: No, Your Honor, I don’t think that that would be under — under our statute. And I think -
JUSTICE ALITO: How about “All Lives Matter”?
MR. ROGAN: That could be, Your Honor, that could be — that could be perceived as political. And I — I think obviously, Your Honor, there — there are some hard calls and
there are always going to be hard calls. And that — that doesn’t mean that the line that we’ve drawn is — is unconstitutional or even unreasonable.
JUSTICE ALITO: How about an “I Miss Bill” shirt?
MR. ROGAN: I’m sorry, Your Honor? I didn’t –
JUSTICE ALITO: “I Miss Bill,” or to make it bipartisan, a “Reagan/Bush ’84” shirt?
MR. ROGAN: Yes, Your Honor, I believe that that’s political.
This should be a 9-0 decision to overturn the law. It won't be. It will be 5-4, because the four progressives on the court will vote to uphold it regardless. I hope I'm wrong on that, but I doubt it.