Dressing Down Minnesota over its Dress Code for Voters

By Wen Fa

The American polling place. It’s one of the iconic symbols of American freedom.  Whether it be the local high school gymnasium, a meeting room at the public library, or a neighbor’s garage, the polling place is a hallowed space where citizens of all backgrounds and beliefs come together to discharge the defining privilege of a democracy — the exercise of the franchise.

How ironic, then, that in Minnesota polling places are the scene of a disturbing attack on a core liberty: your right to give voice to your personal values and convictions.

This assault on freedom of expression comes in the form of a government-decreed dress code for voters.  When you show up to vote in the North Star State, you are forbidden from wearing any apparel with a design, logo, or slogan with even the slightest hint of a political connotation, even if the slogan doesn’t have anything to do with a candidate or ballot measure.

Specifically, Minnesota law bans clothing with any “political badge, political button, or other political insignia” at polling places, on pain of criminal prosecution and civil fines up to $5,000.

Officials say this sweeping prohibition is needed for orderly elections. Yet its broad language reaches far beyond election-campaign messages such as “Vote for Hilary” or “Vote for Trump.”  It has been interpreted to ban garments that merely transmit a general social or philosophical outlook.  Even sporting the logos of the ACLU or NRA -- or simply a shirt with the word “Liberty!” -- could make you a criminal in the eyes of the State.

Minnesota resident Andy Cilek found out the hard way in 2010.  When he arrived at his polling place for the general election, he was wearing two items of clothing, which, to his shock, put him on the wrong side of the law.  His T-shirt displayed an image dating back to the American Revolution -- the Gadsden Flag, with its coiled snake and the warning to British forces, “Don’t tread on me.”  |

Pinned to it was a button reading, “Please I.D. Me,” intended to raise awareness about voting fraud -- a key issue for Cilek, but not one that was on the ballot. The average person might think Cilek’s choice in clothing was his own business. But a polling official informed him otherwise, and told him to remove or cover up the offending shirt and button.

A dispute ensued, and Cilek was allowed to vote only after a substantial delay.  But his name was taken down for possible prosecution.

He left the polling place determined to turn the message of his T-shirt into action. The government was treading on his rights and he needed to take a stand. So he filed a federal lawsuit challenging Minnesota’s polling place dress code as a violation of his constitutional freedoms.

His case rests on solid Supreme Court precedent against “overbroad” government limits on freedom of expression.  For instance, when Los Angeles International Airport tried to ban any and all pamphleteering and advocacy activity, no matter how unobtrusive, the court, in Board of Airport Commissioners v. Jews for Jesus, struck down the restriction as going too far.

The same could be said of the open-ended Minnesota apparel ban.

Unfortunately, a federal appeals court didn’t see it that way.  Ruling 2-1 against Cilek, a panel of the Eighth Circuit held that Minnesota’s ban on “political” attire is a reasonable way to protect voters from intimidation by candidates’ supporters.

In dissent, Judge Bobby Shepherd displayed a clearer view.  He noted that the law applies to far more than overt electioneering; it could ban the insignia of nonpolitical organization like the NAACP, Veterans of Foreign Wars, the American Legion, and countless others -- none of which could be a source of intimidation for a reasonable voter.

Last week, Cilek filed his reply, the final document in his petition to the Supreme Court which will decide whether to take this case on September 26.  The justices should accept this case and not just dress down Minnesota over its dress code for voters, but issue a ruling with national impact.  Governments from coast to coast should be reminded that they may not turn polling places -- or any other public spaces -- into speech-free zones, in defiance of the First Amendment’s free speech guarantees.

Wen Fa is an attorney with Pacific Legal Foundation.  He represents Andy Cilek in asking the Supreme Court to strike down Minnesota’s restrictions on polling place attire.