Yesterday morning the Supreme Court of the United States held that Minnesota’s statutory ban on voters’ wearing political apparel to the polls violates the First Amendment.  See Minnesota Voters Alliance v. Mansky (https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf).

Chief Justice Roberts wrote the Court’s opinion; Justice Sotomayor, joined by Justice Breyer, dissented.   The Court’s opinion will not have any direct impact on Maryland voters.  The Maryland State Board of Elections regulation governing what can be worn inside polling places specifically provides:  “This regulation does not apply to clothing, buttons, or stickers worn by a voter who, without lingering, enters the polling place, votes, and then leaves.”  See COMAR 33.07.09.02.B.

The Supreme Court’s decision today focuses upon the imprecise language of the relevant Minnesota statute, which stated that a “political badge, political button, or other political insignia may not be worn at or about the polling place.”  After the case was filed, Minnesota authorities distributed an “Election Day Policy” that attempted to provide guidance on enforcement of the ban that made matters even worse. For example, the Supreme Court notes:

The first three examples in the Policy are clear enough: items displaying the name of a political party, items displaying the name of a candidate, and items demonstrating “support of or opposition to a ballot question.”

But the next example—“[i]ssue oriented material de­signed to influence or impact voting,”—raises more questions than it answers. What qualifies as an “issue”? The answer, as far as we can tell from the State’s briefing and argument, is any subject on which a political candidate or party has taken a stance. See Tr. of Oral Arg. 37 (explaining that the “electoral choices” test looks at the “issues that have been raised” in a campaign “that are relevant to the election”). For instance, the Election Day Policy specifically notes that the “Please I. D. Me” buttons are prohibited. But a voter identification requirement was not on the ballot in 2010, so a Minnesotan would have had no explicit “electoral choice” to make in that respect. The buttons were nonetheless covered, the State tells us, because the Republican candidates for Governor and Secretary of State had staked out positions on whether photo identification should be required.

Minnesota Voters Alliance, slip op at 14-15 (internal record citations omitted).

The Maryland State Board of Elections does prohibit non-voters, including any candidate, watcher, or challenger, from entering the No Electioneering Zone around the polls while “visibly wearing or carrying any clothing, button, sticker, sign, or other paraphernalia that indicates support or opposition to a candidate, question, or contest.”  See COMAR 33.07.09.02.A.  The Court’s comment about the first three examples in the Policy, combined with the Court’s comment regarding proscriptions similar to Maryland’s non-voter regulation that other states have with respect to what people can wear in polling places, appears to support the constitutionality of Maryland’s regulation.  However, the Court left room for a challenge down the road:

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.

Minnesota Voters Alliance, slip op at 18.

If you have questions about election law, Astrachan Gunst Thomas, P.C., can help.  Contact Mark Stichel at 410-783-3527 (hmstichel@agtlawyers.com) or Elizabeth Harlan at 410-783-3528 (eharlan@agtlawyers.com).