`MAGA' Hats or #Metoo at Polls? High Court Justices Appear Split

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(Bloomberg) -- The U.S. Supreme Court appears divided on the right of people to wear "Make America Great Again" hats or #metoo buttons when they vote.

Hearing arguments Wednesday in a case that could redefine First Amendment rights on Election Day, the justices scrutinized a Minnesota law that bars political apparel at the polls. They peppered the lawyers with questions about hypothetical T-shirts bearing parts of the Constitution and coordinated efforts to wear white clothing.

By the end of the hour-long session, a core group of justices -- and perhaps a majority -- had expressed support for Minnesota’s professed aim of ensuring decorum at the ballot box.

"Why should there be any speech there at all?" Justice Anthony Kennedy asked. "You’re there to vote."

Other justices suggested the Minnesota law was trying to draw an inevitably fuzzy line. Justice Samuel Alito called the measure "an invitation for arbitrary enforcement and enforcement that’s not evenhanded" by possibly thousands of election officials around the state.

Minnesota is one of about 10 states with broad bans on political apparel at election sites, according to the challengers. Other states have more specific bans covering items that refer to a candidate or issue on the ballot.

The high court in 1992 upheld a Tennessee law that barred campaign materials promoting a specific candidate or party within 100 feet of the entrance to a polling place. That law didn’t mention more general political items.

Colin Kaepernick

Minnesota’s century-old law bars a "political badge, political button or other political insignia" inside the election site. If someone is wearing prohibited attire, elections officials ask the person to remove or cover the item. A voter who refuses can still cast a ballot, but officials record the person’s name, and the voter could be subject to a fine or even criminal prosecution.

The state’s lawyer, Daniel Rogan, spent much of his half-hour parrying questions from Alito. The justice asked whether the Minnesota measure outlawed displays of the text of the First and Second Amendments, a jersey bearing the name of pro football quarterback Colin Kaepernick, a "Reagan-Bush 84" T-shirt, or various words or phrases including "NRA," "Parkland strong" and "all lives matter."

Rogan’s answers underscored the potential difficulties with the law. He said the text of the Second Amendment, which protects gun rights, would be barred but not the text of the First Amendment, which protects speech and religious rights. He said the test was whether the apparel concerns an issue that is before the voters.

He also said another Alito hypothetical scenario -- a campaign to wear all-white to the polls as a substitute for banned "Me too" shirts -- would be permissible under the Minnesota law.

"There are always going to be hard calls," Rogan said. "That doesn’t mean that the line that we’ve drawn is -- is unconstitutional or even unreasonable."

The challengers to the Minnesota law include Andrew Cilek, a man who wore a Tea Party Patriots T-shirt and a "Please I.D. Me" button when he went to the polls in 2010.

David Breemer, the lawyer representing the challengers, encountered his own line-drawing problems. He wavered when several justices asked him whether a state could bar a more narrow class of apparel, such as items that explicitly advocate for a candidate on the ballot. He called that question a "very close call."

"Polling places are not pristine retreats from the real world, and I don’t believe the government can sacrifice the First Amendment to make them that way," Breemer said.

Justice Sonia Sotomayor said Breemer was "telling us to overrule" the 1992 Tennessee decision.

Bombarded Voters

Other justices suggested the state had legitimate aims. Chief Justice John Roberts said that perhaps the state should be allowed to let people vote "in peace and quiet without being bombarded by another campaign display."

At another point, however, Roberts suggested the law "does reach quite a bit beyond what I think a reasonable observer would think is necessary." 

Kennedy similarly pressed both sides. He said disagreements at the polls between voters and election judges would be "more disruptive than wearing the shirt."

Justice Stephen Breyer, however, said the state had enforced its law for 100 years with virtually no problems. Justice Elena Kagan made a similar point.

"I assume that the real work of this statute is being done by the fact that people know about it and so people just don’t wear these things for the most part," Kagan said. "And you’re always going to have cases where people don’t know about it or maybe they want to challenge it, but those are going to be few and far between."

The case is Minnesota Voters Alliance v. Mansky, 16-1435.

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