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Symposium: The right to vote in peace

J. Gerald Hebert is the senior director for voting rights and redistricting at the Campaign Legal Center.

American political campaigns are extended crescendos of vitriol. Passions and tempers run high. But at the end of all the viciousness, the citizens cast their votes. They have the right to do so in a place of peaceful contemplation.

For tens of millions of Americans who vote in person, the voting process is designed to foster such contemplation. We are able to walk into the polling place without being harassed, thanks to the Supreme Court’s 1992 ruling in Burson v. Freeman that states may bar electioneering within a certain distance from each polling place. We stand in lines together (hopefully very short lines, if the election is administered and resourced properly), and we mark our ballots next to each other. We submit our votes and take our “I Voted” stickers, hoping that our preferred candidates will be victorious, but willing in any event to accept the collective judgment of our fellow citizens — the very people with whom we just stood in line.

It is through this orderly and undisturbed process that we begin to heal from the divisive rhetoric of the campaign.

Now picture a different scenario. Instead of a line of neighbors whose only distinguishing characteristic is the shared geography that assigned them to that particular polling place, imagine a line in which each voter self-identifies by political tribe. Some people wear “WHITE LIVES MATTER” shirts. Others wear “TUCK FRUMP” shirts. Some wear “THIS ELECTION THE PUSSY GRABS BACK” shirts. And others wear “NRA: GUNS DON’T KILL PEOPLE — I DO” shirts. As voters stand in line, they are confronted with raw political divisiveness. No physical violence occurs, but people spot the differences. One voter makes a snide remark to a similarly clad compatriot about a voter wearing the other tribe’s insignias. Nasty glances are exchanged and mistrust abounds.

As each voter walks up to the check-in table, the clerk is confronted first and foremost by the person’s visual declaration of tribal loyalty. Perhaps the clerk is able to look past that declaration and process all voters without distinction. Or perhaps the clerk is influenced by it, such as by being a bit more diligent in inspecting the identification provided by certain voters than others.

When it’s time to mark their ballots, voters self-segregate: Conservatives see like-minded voters in the booths on one side of the room and join them; liberals congregate on the other side. It’s easy, after all, to tell who is who. As the voters mark and hand in their ballots, they acknowledge their political peers in line with nods. The pollworker handing out the “I Voted” stickers smiles a little more broadly at some voters than at others.

These people are not voting together as unified Americans. They are balkanized, acting as members of political tribes.

To prevent such scenarios, Minnesota law bars the wearing of any “political badge, political button, or other political insignia … at or about the polling place.” This law (and those like it in other states) is an eminently sensible, highly tailored provision that serves the state’s interests — which “obviously are compelling ones,” as the court recognized in Burson — in allowing voters to cast their ballots, “freely … in an election conducted with integrity and reliability.”

In Burson, the Supreme Court upheld the constitutionality of a Tennessee law that banned “the display of campaign posters, signs or other campaign materials” within 100 feet of a polling place. The court traced the long history of voter coercion and harassment in and around American polling places, noting that such problems were the prime reasons that the United States and other countries eventually adopted the modern process of voters marking secret ballots in individual voting booths. In light of this history and the compelling governmental interest in maintaining an orderly voting process, the court held that Tennessee’s ban on displaying campaign material near voting sites was justified, even under the highest possible level of constitutional scrutiny.

The logic of Burson compels the result in Minnesota Voters Alliance. If the state may protect the peacefulness of the voting process by barring the display of electioneering materials outside the polling place, the state must have all the more authority inside the polling place, where both the protective interest and the possibility of disruption are at their apex. The fact that the Tennessee law applied to “campaign materials” and the Minnesota law applies to “political insignia” is immaterial: The state’s interest in promoting a harassment-free polling place by barring “Vote Republican” displays in a tiny geographical area applies with equal, if not more, force to the display of inflammatory, non-campaign slogans such as those noted above.

The plaintiffs in Minnesota Voters Alliance v. Mansky and some of the interest groups supporting them argue that the Minnesota law is overbroad. They claim that the law could theoretically be interpreted in problematic ways, such as to ban a voter from the polls for wearing a blue coat (blue being a color sometimes identified with the Democratic Party).

There are two major problems with that argument. First, it’s wrong. A blue coat is not a “political badge, political button, or other political insignia.” The same goes for many of the other examples that plaintiffs and their supporters have used to try to make their case, such as Bob Dylan T-shirts. Just because lawyers can invent extreme hypothetical examples and claim that they might be covered by the law does not mean that Minnesota or any other state would ever actually construe the law to cover them. See Washington State Grange v. Washington State Republican Party, in which the court declared, “In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”

The only real examples of allegedly unconstitutional applications in the record are a button that said “Please I.D. Me” and a Gadsden flag shirt. The ID button was avowedly intended to confuse and disrupt polling-place operations (because Minnesota does not require voter ID), and the challengers spend little effort attacking the state’s ban on it. So all that’s left to support their claim of unconstitutional overbreadth is a single T-shirt.

This demonstrates the second flaw in the challengers’ argument. Even assuming for the sake of argument that one could identify potential applications of the law that seem not to further the compelling state interests at issue, this would not mean that the law is unconstitutional. For a law to be unconstitutionally overbroad, the overbroad applications “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,” as the court wrote in 1973 in Broadrick v. Oklahoma. The challengers do not seriously engage with the fact that, for every hypothetical example of overreach they strain to concoct, there are innumerable existing “political badge[s], political button[s], or other political insignia” that would implicate the state’s concerns in peaceful voting and orderly election administration. Indeed, a brief survey of the political paraphernalia that is easily and cheaply available on the internet should be enough to assure any observer that the only limits on creation of divisive, non-candidate political apparel are the boundaries of human ingenuity and decency.

None of this is to say that such apparel is inherently problematic. The First Amendment protects every American’s right to speak out on contentious issues, including through what they choose to wear, as the court held in 1969 in Tinker v. Des Moines Independent Community School District. But the state’s compelling interests in protecting the single most fundamental democratic activity amply justify an extremely limited restriction: When We the People step into the sacred space of the polling place — in just that one place and for just those few moments — we do so not with outward displays of loyalty to our political clans, but as the peaceful and unified citizenry of the United States.

Recommended Citation: Gerald Hebert, Symposium: The right to vote in peace, SCOTUSblog (Jan. 23, 2018, 3:13 PM),