Updated 1:13 p.m. ET
Every state has a law creating campaign-free buffer zones outside of polling places — laws the Supreme Court has long upheld.
On Wednesday, the justices tackled similar and even stricter laws that bar "political" apparel inside polling places.
The court did not indicate which way it was leaning in questioning Wednesday. Lawyers on both sides of the arguments were pressed hard.
Justice Anthony Kennedy, perhaps the court's most vociferous advocate for free speech, kept noting the necessity for decorum and solemnity in the voting place. Where do we draw the line as to what is permissible? Kennedy asked.
J. David Breemer, the attorney representing Andrew Cilek and the Minnesota Voters Alliance, said he didn't know. The problem with the Minnesota statute, Breemer argued, is it seeks to silence so much speech.
The statute in question says the following:
"A person may not display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situated, or anywhere on the public property on which a polling place is situated, on primary or election day to vote for or refrain from voting for a candidate or ballot question. A person may not provide political badges, political buttons, or other political insignia to be worn at or about the polling place on the day of a primary or election. A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."
Cilek wore a Tea Party T-shirt and a "Please I.D. Me" button to vote. He was asked to cover up, and he twice left the line of his own accord. The third time he got in line, he came back with his lawyer and was allowed to vote, but his name and address were taken down, because the law provides for up to a $300 fine for violating the ban on political apparel. The fine, though, has never been levied and was not in this case, either, according to the state.
But Cilek and the Minnesota Voters Alliance sued, claiming his constitutional free speech rights had been violated.
"I think the fundamental principle is that I had a right to wear that T-shirt," Cilek maintains.
The Supreme Court wasn't so sure.
Chief Justice John Roberts, for example, like Kennedy, spoke of the necessity for decorum at polling places and warned of a concern about coordination, where a group of people decide to wear the same buttons and apparel and levy subtle psychological pressure to vote one way or another.
"Maybe before casting a vote," Roberts said, "people should be free from the sturm and drang of the election campaign."
But Roberts also seemed to suggest that the state's statute was too broad.
The state's attorney, Daniel Rogan, senior attorney at the Hennepin County Attorney's Office, argued that polling places are not a public forum and that speech is limited, for example, out front of the Supreme Court. Placards and signs are not allowed on the plaza in front of the court and instead are relegated to the public sidewalks.
On the other hand, Justice Ruth Bader Ginsburg questioned whether a "Me Too" or ACLU shirt might be banned. Justice Elena Kagan asked about "Make America Great Again" or "Resist."
Rogan said the limitation is on anything pertaining to electoral voting at the polling place. For example, if gay rights is somehow on the ballot, then someone wouldn't be allowed to wear a rainbow flag. If gun restrictions were, then someone couldn't wear an NRA button.
Justice Samuel Alito, who seemed the most skeptical of the law, went through a litany of hypotheticals on everything from "Parkland Strong" (yes, said Rogan, that would be allowed) to an NRA T-shirt (no, Rogan said).
What about T-shirts spelling out the First or Second amendments, "All Lives Matter" or "I miss Bill"? Alito wanted to know.
"It's an invitation for arbitrary enforcement," Alito said, "and enforcement that's not even-handed."
Rogan said that when a line is made, at the margins, there are difficult choices. And if those choices are made incorrectly, then you can challenge them as applied. Kennedy wondered about that line and whether the itself law is too disruptive.
But, he pointed out, that this is a challenge to the entire law, that it's unconstitutional in all instances.
Justice Stephen Breyer pointed out that there are restrictions on signs or other things off limits at other places, like, for example, hospitals and law schools. Alito still seemed unconvinced.
Rogan argued that the process has to be perceived to have integrity and that if someone wearing a Make America Great Again T-shirt was asked more questions about their registration than someone an "I love Hillary" T-shirt, there could be the perception of poll workers playing politics.
A history of intimidation
Until the early 1900s, election days looked nothing like they do now. There were no quiet lines of people waiting to vote in curtained-off booths. Instead, election days were raucous, confusing, even violent affairs.
Voters then, as now, often were split into battling ethnic and ideological tribes, except that back then, the battles outside and inside polling places were often physical — coats were torn from people's backs, ballots snatched from their hands, voters were threatened, and in factory towns, managers often stood at the polling place door to make sure that employees voted the "right way."
In the late 1800s, states began enacting laws to protect voters from harassment and intimidation. Soon, every state had laws that banned electioneering outside polling places, and eventually, most states adopted even stricter laws inside polling places. Among the strictest is a Minnesota law that bars voters from wearing apparel or buttons that bear a "political" message.
Backstory of this case
Under enforcement guidelines issued for Election Day, poll watchers were told to ask voters to either cover up or remove any item of clothing, badge or button that supported or opposed a candidate, ballot question or recognized political party or group, including those like the Tea Party or MoveOn.org.
Also banned was any item designed to influence voting, including specifically "Please I.D. Me" buttons. The buttons were distributed by, among others, the Minnesota Voters Alliance, which acknowledged that by wearing the buttons and flashing their identification, they were creating the false impression that Minnesota law requires a photo ID in order to vote.
"I went to vote in November of 2010," recalls Cilek, executive director of the Minnesota Voters Alliance. "I was wearing a T-shirt. ... It said 'Tea Party Patriots, Don't Tread on Me.' "
According to affidavits in the case, he was also wearing a "Please I.D. Me" button.
"I simply asked for a ballot, and they refused me twice," he said. "The only explanation they gave me is that the shirt was political."
His lawyer, Wen Fa, argues the Minnesota law unconstitutionally sweeps too much speech into a ban on political apparel inside polling places.
"In addition to just banning campaign-related speech like, 'Vote for Bush' or 'Vote for Gore,' it bans passive political speech," Fa said. "For example, the government conceded that this ban would also apply to people wearing shirts featuring the logo of the AFL-CIO or the Chamber of Commerce."
Yes, says Rogan, who is defending the apparel ban; he did make that concession, but only if the ballot included a measure that directly involved either the union or the chamber.
A calm environment for voters
There is nothing nefarious about the apparel ban, says Virginia Gelms, the elections manager for Minneapolis. Most people who are wearing a T-shirt or button are simply unaware of the rule, and when asked to cover it up with a jacket or take it off, they quickly comply and the matter is resolved "without incident."
Cilek's refusal to do that, she said, was viewed as "confusing" to voters and "disruptive" and designed to "draw election judges into a dispute."
Election officials worried, for instance, that people in line would leave without voting if they thought, erroneously, that they needed a photo ID to vote and hadn't brought one with them.
Indeed, she said one head election judge told her that he was not sure he would serve again if the ban is struck down because he wouldn't be able to protect the judges he supervises from getting drawn into political battles. After all, Gelms contends, that is not what polling places are for.
"All those restrictions are there to help election judges manage a calm and efficient process," she said, "so that everybody who has the right to vote can get in, exercise that right, and move on with their day."
In the Supreme Court on Wednesday, Rogan, defending the ban, told the justices that a polling place, like a courtroom or a military base, is not a public forum where people are free to speak their minds.
"The interior of a polling place is designed for one purpose," Rogan has said. "It's designed to provide citizens a place to make their electoral choices and to ensure that those choices are accurately and reliably tallied by elections officials."
And he fears that if the Supreme Court invalidates the Minnesota ban, the next step would be to revisit the Supreme Court decision that upheld a ban on electioneering within 100 feet of a polling place.
Indeed, the attorney for Cilek would not rule that out.